RELEVANCE & GENERAL ADMISSIBILITY
FRE 401—Relevance Defined (any tendency…fact of consequence…more or less likely).
§ Relevance not affected by fact that point can be proved another way. Old Chief v. US (I)
FRE 402—Admissibility (all relevant admissible, except as excluded by FREs, statute, Consts., SCOTUS)
FRE 403—Prejudice, Confusion, Waste of Time (probative value substantially outweighs…)
§ …danger of:
o unfair prejudice
o confusion of issues
o misleading jury
o undue delay, waste of time, needless presentation of cumulative evidence
§ Standard of Review: Abuse of Discretion
§ Applied:
o Simple prejudice not enough
o Details of previous conviction inadmissible where only status at issue. Old Chief (II)
o Gruesome photos inadmissible where Miss-ID only issue in case, although such photos have other valid uses (proving death, injury location, aggravated circumstances, corroborate or explain witness testimony—still ask if unfair prejudice). State v. Chapple
FRE 104(a)—Questions of Admissibility Generally (prelim questions about witness qualification, existence of privilege, or evidence admissibility…
§ NOT bound by FREs…except w/respect to privilege
§ Burden of Proof: Preponderance
FRE 104(b)—Relevancy Conditioned on Fact (judge can admit either…
§ BEFORE evidence sufficient to support finding that condition fulfilled (“subject to”)
o Jury instruction
§ AFTER (“upon”)
FRE 106—Remainder of or Related Writings or Recorded Statements (ADVERSE party may request…
§ When offering party introduces writing or recorded statement
§ Introduction of other part or any other writings which ought in fairness be considered contemporaneously.
CONFRONTATION CLAUSE
“In all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him.” 6th Am.
Entitles accused to: (1) be in view of witness and hear when testifying, (2) cross-examine
PRE-Crawford CASES
Ohio v. Roberts: Prosecution must try to secure declarant’s availability. If declarant is unavailable, hearsay can come in if:
(1) Firmly-Rooted Hearsay Exception: business records, dying declarations, co-conspirator, public records, excited utterance, medical diagnosis or Tx.
(2) Particularized guarantees of trustworthiness—rather than treating this as a limitation, courts use it as a way to let stuff in.
Roberts devalued over time:
o Inadi– don’t need unavailability for the coconspirator exception
o White—don’t need unavailability if exception firmly rooted—excited utterance, medical diagnosis & Tx examined
o Bourjaily – co-conspirato
assailant—so police know if is violent felon
o TESTIMONIAL under Davis if:
o Circumstances objectively indicate that there is no ongoing emergency
§ Declarant not in danger, actively separated from defendant, etc.
o Primary purpose of interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
§ Mirandized, tape-recorded, stationhouse. Crawford (strengthen, but not necessary for something to be testimonial)
o Can statements made to people other than law enforcement be testimonial?
Interpreting the “opportunity to cross” requirement
o Prior OPPORTUNITY to cross may be enough, even if didn’t cross when had opportunity. California v. Green (deferred cross) (Preliminary hearing testimony—statement made under oath, accused represented by (same) counsel, oppty to cross, judicial record avail).
o FRE 801(b)(1)—prior testimony exception—provided D had motive and oppty. to devel testimony by direct/cross/redirect
o BAD—there are plenty of reasons you wouldn’t cross during prelim, but you’d want to at trial
