Evidence Exam Feedback Memo
Fall 2012

LAW 6330 (4 credits)
Professor Pedro A. Malavet
Fall 2012

INSTRUCTIONS FOR EXAM REVIEW

Procedure for Examination Review. I will be available to discuss examination results during the Spring semester, beginning after Thursday, February 7, 2013, after post the feedback memorandum. Exams and the respective Feedback Memorandum will be available beginning on that date, after I post this memo to the website. You may pick up the exam from me. Please bring your exam number with you, as I keep them organized by exam number. You may make a copy of your exam answer and keep it for your records, but you have to return the original to me because faculty are required to keep exams for a few semesters.

Review Policy. Examination review is a good way to learn from your mistakes, and from your successes. I encourage you to review my feedback memo and your exam. I will be happy to sit down and discuss substantive matters with each student. I will first tell each of you what you did right. I will also gladly suggest ways to improve your exam-taking abilities.

No Grade Changes. I want to make one thing perfectly clear: I have never changed an exam grade for any reason other than a mathematical error. Barring mathematical errors, your grade is not going to be changed. Grading is a time-consuming and difficult process. The only fair way to do it is to grade in the context of each class. I look for a fair overall grade distribution and follow the rank of each student within the class in awarding the final grade.

Results in General. The TRUE/FALSE was pretty much as usual, with one exception. Question no. 8, a modified one from last year, proved remarkably hard. It was simply about noting that the rule refers to homicide situations for a broad exception, and I changed the charge to assault. Otherwise, the usual high-percentage of correct responses.

General Instructions For Part I

 Select the best answer to the question presented. In this section, do not look for “perfect” answers, just the most correct one among the two alternatives available to you, in light of the question or statement presented, viewed in the context of the federal rules of evidence and related doctrines and caselaw as we discussed them in class. You are bound by the restyled version of the Federal Rules of Evidence that became effective December 1, 2011.No explanations are required or allowed. Your answer will either be correct or incorrect, there will be no partial credit for incorrect answers. Circle the appropriate word or letter that you select as your response.

Do not assume any facts not given to you. While you are expected to draw reasonable conclusions from the facts given, you should not assume facts. In this section of the exam, “missing facts” suggest three possibilities: (1) you need to read the question again, i.e., “it’s in there somewhere,” (2) the fact is not necessary to the resolution of the question, or (3) I made a mistake and you may need to alert me to it (if you are convinced that this is what is going on, do not be afraid to ask the question of the proctors).

Do not look for issues that are not relevant to answering the question. The question asked determines the issues raised, read it carefully and answer the question I asked, with the best possible response among the alternatives given.

Applicable Rules. Assume that the applicable rules of evidence are the Federal Rules of Evidence in the restyled form that became effective December 1, 2011, taken together with all the accompanying doctrines and caselaw as we discussed them in class.

Part I: True or False (40%)

In this section, you must select either “True” or “False.” The statement, as drafted, when read in the context of a Federal Trial, is either True or False.

1. During a trial for armed robbery, the state calls Brenda. She is defendant Carl’s girlfriend, and she answered the door at the time of his arrest. The state offers her testimony that when Carl saw the police approaching, he first ran to the back door, then hid in a closet after discovering a uniformed police officer standing guard in the alley. Carl objects, arguing that proof of his behavior at the time of arrest is irrelevant. In a sidebar conference, his lawyer points out that Carl’s arrest was based on an outstanding default warrant, issued two years earlier on unrelated charges. The court may admit this evidence to prove guilt of the crime charged.

True              False

• Answer: True. Problem 2-C. The court may admit flight as evidence of guilt and that is in fact the most common result as decided in Commonwealth v. Booker, 436 N.E.2d 160, 162-164 (Mass. 1982). Myers is inconsistent with Booker, and probably the better result, but there is no absolute bar and in fact, as discussed in class, evidence of flight is routinely admitted. Did you think that 403 exclusion made this "false"? The possibility that the evidence might be excluded under FRE 403, even that the better result would be to exclude under FRE 403 balancing, should tell you that “may admit” is true and cannot be completely eliminated to allow for false.

2. Dr. Janet Michelson a medical doctor is properly qualified as an expert witness in a malpractice case. During her testimony she delivers an opinion that to a reasonable medical certainty defendant Dr. Filer met the prevailing standard of care in the area in which the death that gave rise to the litigation occurred. Dr. Michelson may base her opinion on inadmissible evidence gathered in her examination of the patient’s medical chart.

True              False

• Answer: True. The second sentence of Rule 703 so states, as we discussed in relation to problem 9-C: They all Saw it The Way I Did. As long as it is HER opinion, she may base it on inadmissible evidence. I added “medical chart” because that was the specific example I used in class to illustrate when the expert may “rely” on inadmissible evidence particular to her field. FRE 703 [b] If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted.  The Florida court in the case that produced the problem stated the general rule of admissibility as I discussed in class and found that the error in this particular case was that the expert RELAYED the opinion of others rather than RELYING on inadmissible evidence.

3. In a criminal appeal based on an evidentiary question, the court finds that the error was not properly preserved for appeal. The appellate court also finds that the trial court erred in admitting the evidence. Under the Federal Rules of Evidence, the appellate court does not have the authority to reverse the conviction.

True              False

• Answer: False. I changed this question from last year to “does not” to make it “False” under the “Plain Error” language of FRE 103(e), which is still available to the court, provided that a substantial right be affected.

4. In a criminal trial for first-degree murder, the state offers the testimony of an eyewitness who will identify the defendant, Nancy Smith, as the person that fired ten shots into victim Jonathan Jones. The defense objects. At the bench, so that the jurors cannot hear what is happening, the court rules that the evidence is relevant to the case and prejudicial for the defendant Nancy because it makes it more likely than it would be without that evidence that Smith’s intentional conduct was the proximate cause of the death. The court must exclude this evidence under Rule 403.

True              False

• Answer: False. My usual “are you paying attention to ‘unfairly’ prejudicial” question. The court in Bryan v. State, 450 N.E.2d 53, 57-58 (Ind. 1983), found that the evidence was indeed prejudicial, as any inculpatory evidence in a criminal trial would be, but it was not unfairly prejudicial. Thefeore, it passes muster under, or, more accurately, it ought not be excluded using FRE 403. The court’s analysis demonstrates legitimate relevance and probative value, and none of the factors in favor of exclusion. Also, there is no mention of “substantially outweighed” even if you were to read “prejudice” as being the same as “unfair prejudice”. Admit.

5. Following the loss in the SEC Championship Game, Bulldog fan Doug drowns his sorrows at several Atlanta bars as he walks back to his car after the game. He then meets his pal Paul in the parking lot and gives him a ride back to Athens. Later that night they are involved in an accident that seriously injures both Paul and Doug. Paul sues driver Doug to recover damages. During the defense case in chief Doug offers, as proof that Paul assumed the risk of an accident on account of an impaired driver, his testimony that “I told Paul before he got in that I really should not have had those three martinis half an hour ago.” Given the definition of hearsay of Rule 801(a), (b) and (c), this evidence is hearsay.

True              False

• Answer: False. This is nonhearsay under the non-truth use of Effect on Listener. Item no. 2 in the Hearsay Quiz and a variation that I always reference in class. And future groups might watch out for the Bill Murray cab driver variation of “I should not have drank all that cough syrup” from Stripes!

6. During civil commitment proceedings against Louisville assistant professor Jerry Patterson, his parents, who are trying to institutionalize him in a psychiatric treatment facility, present testimony that he told several students last weekend: “I am Tebow, Tim Tebow, Heisman Trophy Winner.” Given the definition of hearsay of Rule 801(a), (b) and (c), this evidence is not hearsay.

True              False

• Answer: True. This is nonhearsay. A variation on “I am Napoleon Bonaparte.” As we discussed in class repeatedly, this statement is offered to prove lack of mental capacity (and generally absolutely ridiculous on multiple levels that should be clear to any Gator), and it is nonhearsay.
• As I noted in class, this is the position taken by our casebook authors and by me in this area. Others, such as professor Graham, take the position that this should be treated differently (though they ultimately agree that it is nonhearsay). But, you are judged in my class in accordance with how the material is taught in class.
• This one is more akin to the “I am Woody Allen” in our class problem, since of course Mr. Tebow is a very real person. But he is not a Louisville (opponent in the Sugar Bowl) assistant professor. Naturally these are laboratory conditions, in a real case, this statement would have to be accompanied by evidence that he was not kidding. You may notice that which university the allegedly mentally ill student comes from is our bowl opponent.

7. In a criminal case for assault and battery, during his case-in-chief, defendant Don offers the testimony of William that alleged victim Vince was a “belligerent, fight-picking fella.” During its case-in-rebuttal, the prosecution offers the testimony of the Reverend Wilson that defendant Don was a “violence-prone person.” The prosecution’s rebuttal may be admitted under the Federal Rules of Evidence.

True             False

• Answer: True. Same as last year, except that I changed “INadmissible” to “may be admitted”. The government may offer this evidence under 404(a)(2)(B)[ii] which allows a direct attack on defendant when he attacks the character of the alleged victim. The rebuttal is proper because of the rule’s language regarding “if admitted”.

8. In a criminal prosecution for assault, defendant Don testifies that alleged victim Vince started the fight between them that ultimately led to Vince’s serious injuries, and that he (Don) acted in self-defense. During its case-in-rebuttal, the prosecution offers the testimony of the Reverend Wilson that Vince was a “peaceful, and non-violent man.” The testimony of Reverend Wilson must be excluded.

True              False

• Answer: True. The question is deceptively similar to last year, but I changed “homicide” to “assault” which changed the proper answer. FRE 404(a)(2)(C) allows the prosecution to rehabilitate the character of a homicide victim based on the admission of any evidence that the victim was the first aggressor, not just a character attack on the victim. However, you must keep in mind that character response to ANY charge that the victim initiated the violence is only permitted in homicide cases. All else is governed by (a)(2)(B) and there is no character attack by defendant to open the door for this rehabilitation of the victim here. This was by far the hardest question in the exam, much to my surprise, since the rule is clear on the matter.

9. The law of evidence must never proceed on the basis that the jury will follow the court’s instructions where those instructions are clear.

True              False

• Answer: False. Yet another variation of absolute statements that contradict the general rule and make the statement false. May generally is a different thing, but must always or must never are simply too broad. Once again consistent with the restyling using “must” for being obliged to do so. Bruton, tells us that while the general rule is that juries follow instructions, there are occasions when that cannot be assumed, so “never” and “always” are false, and “generally” is true. Finally, the reason advanced by the majority in Delli Paoli was to tie the result to maintenance of the jury system. "Unless we proceed on the basis that the jury will follow the court's instructions where those instructions are clear and the circumstances are such that the jury can reasonably be expected to follow them, the jury system makes little sense." We agree that there are many circumstances in which this reliance is justified.  This is a clear statement of the general rule regarding instructions, but it does not always apply.

10. After certain evidence is found to be relevant, it may be excluded if its probative value is substantially outweighed by a danger of wasting time.

True              False

• Answer: True. The rule does say “may” and this is one of the exclusion rationales. Once again, I have updated the 403 exclusions to account for the restyled language. Consistent with restyling, I am also using “may” for “has the authority to” and “must” for “is compelled” or “is obliged” to do so.

11. John Ponzi enters into a settlement of a civil action filed by private investors who claimed that he defrauded them while acting as their stock broker. He agrees to repay each investor 60% of their original investment and they agree to dismiss their suit. During the negotiations, Mr. Ponzi admits that he used the invested funds to cover personal expenses. The U.S. Government later indicts Mr. Ponzi for securities fraud and is prosecuting him. At trial, the government seeks to introduce Ponzi’s admission about using the funds for personal expenses. Under Federal Rule of Evidence 408 this evidence is not admissible because the privilege created by that rule must never be applied in criminal cases.

True              False

• Answer: False. This is from Problem 5-R. The criminal case exception of 408(a)(2) only applies when (a) evidence is indeed offered in a criminal prosecution, AND (b) the negotiating party was a government agency acting in its official capacity. In the given example, the privilege would NOT preclude use of the admission at the criminal trial, since it was an agreement with private investors. But I then paired it with a general statement that the privilege NEVER applies in criminal cases that is clearly wrong, especially since I have given you an example of a situation in which the privilege would apply. Once again, this is a statement about the Rule and how it is structured. A new question that was remarkably easy, given the huge percentage of correct responses.

12. After a major fire severely injured several persons in a casino housed within a tourist hotel, the architects add an emergency escape to the casino during its post-fire renovations. During a subsequent civil trial by the victims of the fire the plaintiffs seek to offer evidence of this design change. The court rules that it is a subsequent measure under Federal Rules of Evidence 407. Because of the privilege created by Rule 407, evidence of a subsequent measure is not admissible to prove ownership.

True              False

• Answer: False. Clearly this is based on our discussion of Tuer v. McDonald and Rule 407 and I used the example that I gave in class of something that is clearly a subsequent measure in the architectural design area. However, the exception of the second clause of FRE 407 allows the court to admit subsequent remedial measures evidence to prove a number of things, including ownership, after a finding that it is controverted. As we saw in Tuer, triggering this can be very difficult, but the “may” is there to allow admission. The question is designed to test your understanding of Rule 407. Hence, I used “is not admissible” which is the language of the privilege that does indeed apply, but I tied it to the language of exception in the second part of the rule, thus making the statement false. Also a new question, and also very easy, with a huge percentage of correct answers.

Part II: Essay Problem (60%)

General Instructions for Part II

Do not assume any facts not given to you. While you are expected to draw reasonable conclusions from the facts given, you should not assume facts. In this section of the exam, “missing facts” suggest three possibilities: (1) you need to read the question again, i.e., “it’s in there somewhere,” (2) I made a mistake and you may need to alert me to it (if you are convinced that this is what is going on, do not be afraid to ask the question), or (3) you need to indicate that you need to establish certain facts in order to provide a complete opinion. In this section of the exam, identifying missing facts that are necessary to a complete resolution of the issue may be precisely what you need to do in order to provide a proper response.

Do not look for issues that are not relevant to completing the exercise as instructed. The instructions determine the pertinent issues and how they must be handled in a carefully-crafted essay. Read them carefully and write accordingly. Evidence is a broad and complex course, I have crafted the issues narrowly, do not waste your time covering issues that the fact-pattern and your instructions as to the mandated result do not require you to address or resolve. No credit will be awarded for discussion of matters not relevant to the resolution of the problem.

Applicable Rules. Assume that the applicable rules of evidence are the Federal Rules of Evidence in their restyled form that became effective December 1, 2011, together with the applicable common law, statutory, and constitutional rules, doctrines, and caselaw as you studied them in your Fall 2012 Evidence course.

Citations. Since this is an open-rule exam, citation should be made to the appropriate rule, especially the Federal Rules of Evidence, statutory or Constitutional provision, etc. Case citations will be judged on a “close-enough” basis. Please keep in mind that my annotated versions of the rules are helpful shorthand references.

Instructed Result. You must reach and fully justify the instructed result in order to earn any credit for your answer.

Limited Space. Please keep in mind that you are bound by the character length limit in Examsoft, and to the space provided in the hand- or typewriting packet.

Abbreviations. You may use reasonable abbreviations in your essay, provided that you identify the equivalent longhand the first time you make use of each abbreviation. You may not abbreviate the names of persons used in the problem.

The United States v. Kenny Paul

Before the United States Fifth Circuit Court of Appeals

A jury in United States District Court for the Eastern District of Texas found the defendant, Kenny Paul, guilty of possessing crack cocaine with the intent to distribute it. On appeal, Paul contends that reversible error occurred when portions of two 911 calls were admitted into evidence.

On the night of Paul’s arrest, two anonymous 911 calls made by the same individual alerted the police to possible criminal activity. On the portion of the first 911 call that was played to the jury after other portions of the call had been redacted, the following colloquy took place, which started at 12:15 A.M.

OPERATOR: 911, where is your emergency? Sir, you’re phone is cutting out. You called about what?
       CALLER: All of this drug activity over off Sweetgum?
OPERATOR: What address on Sweetgum?
       CALLER: I’m not go—Why would I tell you? I’m trying to be anonymous and get y’all to get these drug dealers from over here.
OPERATOR: Sir, I’m not giving your name out so give me the information so that I can send the officers to the right place, where you’re at.
       CALLER: It’s a red PT Cruiser. This guy is selling—
OPERATOR: Sir, give me the address.
       CALLER: 2505 Sweetgum. All this traffic.
OPERATOR: Did you see his license plate number?
       CALLER: It’s—uh—I know it’s a red PT Cruiser. I—I can only see the driver’s side of the car, I don’t want to go outside, I don’t want him to know that—
OPERATOR: Okay, do you know his name?
       CALLER: Kenny Paul.
OPERATOR: Do you know what kind of drugs he’s selling?
       CALLER: He’s selling crack.
OPERATOR: Which apartment is he in right now?
       CALLER: He don’t even live out here. He’s just sitting on the steps. He’s running in and out, in and out. People coming—
OPERATOR: What’s he wearing tonight?
       CALLER: Ma’am?
OPERATOR: What’s he wearing tonight?
       CALLER: He’s got some green shorts on and a white t-shirt. The car is sitting off of—uh—11th, yeah that’s 11th, and—uh—Sweetgum.

On the portion of the second 911 that was played to the jury, the following colloquy took place, which began at 12:24 A.M.
 
OPERATOR: Phone line 911, where is your emergency?
       CALLER: Hey, I was the one just called about the drug deal that’s going down over here on Sweetgum.
OPERATOR: Yes, sir.
       CALLER: Ok. He’s got the dope in the side door panel.
OPERATOR: The dope’s in the side door panel?
       CALLER: Yeah. He—the—
OPERATOR: The right or the left side?
       CALLER: Uh—of the driver’s side—And—but I want them to do it when they leave here ‘cause he’s for sure got it in the car ‘cause he didn’t know I was the one called ‘cause I the only one seen it.
OPERATOR: Okay, how did you see it sir?
       CALLER: I seen him put it in there. I can see it right now.
OPERATOR: Okay, I’m adding the information to the call. Thank you, sir.
       CALLER: Okay. But would you tell them not to do it here? Cause I don't want him to think that I was the one told (inaudible) pulls off going down the street.
OPERATOR: Ok.
       CALLER: Thank you.
OPERATOR: You’re welcome.

The two responding police officers later testified that on the night in question they received a call via radio dispatcher requesting that they respond to the Monterrey Apartments at 2505 Sweetgum in order to look for “a red PT Cruiser in the parking lot with a black male occupying the PT Cruiser who was in the apartment selling narcotics.” When they arrived at the address given by the 911 caller, they observed a red PT Cruiser, which was parked, unoccupied, and had its driver’s side window down. Because the dispatcher had informed the officers that the suspect was keeping some of the narcotics inside a compartment on the driver’s side of the vehicle, they looked from outside the vehicle and observed what appeared to be three rocks of crack cocaine in plain view.

The officers further testified that a man then approached them, identified himself as the 911 caller, and provided them with some information about the suspect and the PT Cruiser. Believing that the suspect would return to the unoccupied car, the officers devised a plan whereby one would hide behind a nearby fence and the other would drive the patrol unit around the corner. About five minutes later, a black male, dressed in dark-colored shorts and a white t-shirt, exited the apartment complex and entered the PT Cruiser on the driver’s side; a female entered the vehicle on the passenger’s side. The officer behind the fence alerted the officer in the patrol unit via a call on his cell phone. The officer in the patrol unit returned to the apartment parking lot, activated his emergency lights, and followed the PT Cruiser. Once the officer activated his emergency equipment, the driver of the PT Cruiser accelerated to speeds of 60 to 65 miles per hour before failing to negotiate a turn and ending up in a vacant lot. As he was running up to the vehicle, the officer saw the driver’s side door open and the driver stick his arm out and throw something underneath the vehicle. The driver identified himself as Kenny Paul and the officer took him into custody. After the officer handcuffed Paul, he discovered what turned out to be a clear bag of powder cocaine on the driver’s side floorboard. The officer also retrieved three rocks of crack cocaine from the same place earlier observed, and once the car was moved by a wrecker, he discovered a clear bag of crack cocaine on the ground where the car previously stood. The officers testified that, based on their training and experience, the bag of crack cocaine recovered from underneath the vehicle was a “large amount” and was consistent with distribution purposes.

At trial, a forensic scientist testified that the substances found in and underneath the car were cocaine base, commonly known as “crack” (0.63 grams and 19.57 grams) and cocaine hydrochloride, commonly known as “cocaine powder” or simply “cocaine” (27.66 grams).

Paul was charged by indictment with one count of possession with intent to distribute five grams or more but less than 50 grams of a mixture or substance containing a detectable amount of cocaine base under 21 U.S.C. § 841(a)(1). The Government subsequently filed a notice and information of prior convictions for purposes of increased punishment provided by 21 U.S.C. §§ 841(b)(1)(B) and 851. The jury found Paul guilty as charged. The district court sentenced him to 137 months of imprisonment, to be followed by eight years of supervised release. Paul filed a timely notice of appeal.

On appeal, Paul claims that the district court erred by admitting the 911 recordings into evidence because they contained hearsay that did not fall under any of the exceptions to the rule against hearsay. Paul alternatively contends that even if the caller’s statements were admissible over a hearsay objection, the district court erred by admitting the 911 recordings because the recordings contained testimonial hearsay that violated his Sixth Amendment right to be confronted with the witnesses against him. He asserts that the recordings were unfairly prejudicial and extremely harmful to his defense.

By proper objection, Paul preserved his claim of error that the admission of the 911 recordings violated the Federal Rules of Evidence and his right to confrontation. Accordingly, we review the alleged violation of the Rules and the Confrontation Clause de novo, subject to a harmless error analysis. United States v. Bell, 367 F.3d 452, 465 (5th Cir. 2004).

Appellant also attacks his sentence arguing that the trial court misapplied the recidivism statute and that it erred in not following the newly-amended sentencing guidelines designed to reduce the disparity between convictions for possession of cocaine powder and crack cocaine when imposing its sentence.

Statute and Pattern Jury Instruction

• 21 USC § 841(a)
  • . . . it shall be unlawful for any person knowingly or intentionally
    (1) to manufacture, distribute, or dispense, or possess with the intent to manufacture, distribute, or dispense, a controlled substance; or
    (2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.
• Controlled Substances
  • For purposes of this statute both Cocaine (“Cocaine Hydrocloride”) and Cocaine Base (“Crack”) are “controlled substances”. “Cocaine base,” for the purposes of this statute, means “crack.” “Crack” is the street name for a form of cocaine base, usually prepared by processing cocaine hydrochloride (“cocaine”) and sodium bicarbonate, and usually appearing in a lumpy, rocklike form.
• Cocaine and Other Schedule I and II Stimulants (and their immediate precursors)
  Equivalence Guide for Sentencing (2010)
  • 1 gm of Cocaine = 200 gm of marihuana
    1 gm Cocaine Base (‘Crack’) = 20 kg of marihuana
• Pattern Jury Instruction
  Controlled Substances –Possession with Intent to Distribute 21 U.S.C. §841(a)(1)
  • It’s a Federal crime for anyone to possess a controlled substance with intent to distribute it.
    [substance] is a “controlled substance.”
    The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt:
    (1) the Defendant knowingly possessed [substance];
    (2) the Defendant intended to distribute the [substance]; and
    (3) the weight of the [substance] Defendant possessed was more than [threshold].
    To “intend to distribute” is to plan to deliver possession of a controlled substance to someone else, even if nothing of value is exchanged.
    [The Defendant[s] [is] [are] charged with [distributing] [possessing and intending to distribute] at least [threshold] of [substance].
    But you may find [the] [any] Defendant guilty of the crime even if the amount of the controlled substance[s] for which [he] [she] should be held responsible is less than [threshold].
    So if you find [the] [any] Defendant guilty, you must also unanimously agree on the weight of [substance] the Defendant possessed and specify the amount on the verdict form.]

Instructions for Answering the Exam Question:

You are a law clerk to the Honorable Leslie H. Southwick, United States Circuit Judge for the 5th Circuit Court of Appeals. Judge Southwick has been designated to draft the opinion on behalf of the hearing panel, also composed by Circuit Judge Edith Brown Clement and Senior Circuit Judge Emilio M. Garza. Judge Southwick instructs you to draft a detailed memorandum explaining the following major conclusions: The court will rule that the trial court did not commit error in finding that the evidence was admissible over a hearsay objection primarily because the recordings fit under the hearsay exception governed by Federal Rules of Evidence 803(1), present sense impression. However, the Circuit Court of Appeals will hold that the trial judge committed error in admitting this evidence over a Sixth Amendment Confrontation Clause objection and the conviction will be reversed on that basis. The panel will not address the appellant’s attacks on his sentence in any way because the matter will be remanded to the District Court for a new trial and other actions in conformity with the remand order.

You must craft a well-reasoned memorandum detailing how such a ruling should be explained by a Federal Appellate Court applying the Federal Rules Evidence, as restyled and effective on December 1, 2011, together with the applicable common law, statutory, and constitutional rules, doctrines, and caselaw as you studied them in your Fall 2012 Evidence course.

• Facts taken, and modified to fit examination purposes, from UNITED STATES OF AMERICA, Plaintiff-Appellee v. KENNEDY PAUL POLIDORE, Defendant-Appellant, 690 F.3d 705; 2012 U.S. App. LEXIS 16900 (5th Cir. Court of Appeals) (petition for writ of certiorari filed and pending).

Suggested Discussion

Basic Summary

• In hitting the main points, I wanted to see a basic 103, 104(a), 401/402, 801(a),(b),(c), 802, 803(1), Sixth Amendment-Crawford progression. A major item for structure and discussion was NOT to reach 403 or 105 because you have disposed of the matter on a constitutional basis and need go no further. If you did reach 403 for some pertinent purpose, it absolutely could not occur before Crawford, which was a much-too-common mistake given how I discussed this in class.
• On Relevance, it was critical that you discuss that this was a controlled substance (not counterfeit) case and that the controlled substance was cocaine base or crack. I gave you lots of illustrations of the distinction between crack and powder cocaine and the prosecution here was for possession of crack.

Hereafter, I insert direct quotations of the FRE and from the text (idenfitied by the usual "[CB]") with my own commentary.

FRE 103: Appeal

• Rule 103. Rulings on Evidence
  • (a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:
    (1) if the ruling admits evidence, a party, on the record:
    (A) timely objects or moves to strike; and
    (B) states the specific ground, unless it was apparent from the context; or
    (2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.
    (b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record — either before or at trial — a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
• [CB] Kinds of error.
  • In explaining what they do, reviewing courts classify evidence errors in four categories:
    [CB] One is "reversible" error, which refers to the kind of mistake which probably did affect the judgment. Generally the term also means that appellant took the necessary steps at trial to preserve his claim of error (usually by raising an appropriate objection or making a formal offer of proof).
    [CB] Another is "harmless" error, meaning the kind of mistake that probably did not affect the judgment. This label expresses the reviewing court's conclusion that appellant has not shown that a ruling affected the verdict.
    [CB] The third is "plain" error, meaning the kind that in the estimation of the reviewing court warrants relief on appeal even though appellant failed at trial to take the steps usually necessary to preserve its rights (objecting or making an offer of proof). *** See Rule 103(d).
    [CB] The fourth is "constitutional" error in criminal cases, which usually means a mistake by the trial court in admitting evidence for the prosecution that should have been excluded under the Constitution.
• MALAVET
  • The issues were preserved for appeal as instructed and you are deciding de novo according to the instructions.
  • Substantial right of the party requires a showing of “substantial effect” on the judgment or a violation of a serious right, such as a constitutional right of the accused in a manner that is not harmless. This latter one is what the court of appeals found. But if admission of the hearsay had been erroneous, that would also likely have affected the outcome of the case.
  • There is no error under the rules, but there is constitutional error and it is most certainly not harmless. Almost no one defined what “substantial right” means or identified properly in the facts.
  • Beyond that, you have error predicated on evidence admission and you are in 103(a), (1), (2) as the elements you had to discuss and avoid anything else in the rule. Harmless error was the only one that I also allowed in play through the Bell instruction.

FRE 104

• FRE 104(a)
  Rule 104. Preliminary Questions
  • (a) In General.
    [1] The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible.
    [2] In so deciding, the court is not bound by evidence rules, except those on privilege.
    — [Bourjaily, p. 213]
    (b) Relevance That Depends on a Fact.
    [1] When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist.
    [2] The court may admit the proposed evidence on the condition that the proof be introduced later.
    — [Huddleston, p. 436]
• MALAVET
  • Here the judge decides whether the statements are hearsay and if an exception applies using the preponderance standard of Bourjaily.
  • Bootstrapping and corroboration discussions. Always make clear that complete bootstrapping is problematic, at least potentially, but that partial bootstrapping is allowed by Bourjaily and by the amendments to FRE 801(d)(2). Moreover, corroboration of the content of the statement is a repeated theme in admissibility under FRE 803(1).
  • Coincidence issue should the court decide to admit.
  • The most common error here was to bring up 104(b) and failing to tie it to the fact-pattern properly.
  • Even more common here was a confused discussion that shows a failure to distinguish between conditional admissibility and ultimate fact-finding by the jury.
  • One too common example of presenting the coincidence issue incorrectly was to suggest that the judge’s authority under 104(a) was “subject to” the jury’s prerogatives under 104(b). That is not correct. The coincidence issue arises in that the judge’s decision under 104(a) is separate from and without prejudice to the jury’s authority to decide ULTIMATE FACTS in the case. That is not the same as their authority under 104(b).
  • Specifically as to personal knowledge of the event, the ACN for 104(a) quotes McCormick: “Another example is the requirement of Rule 602 dealing with personal knowledge. In the case of hearsay, it is enough, if the declarant ‘‘so far as appears [has] had an opportunity to observe the fact declared.’’ McCormick, §10, p. 19.
  • Cross-referencing 803(1) here particularly as it relates to bootstrapping and independent evidence findings, was just fine. Cross-referencing in the same way during the 803(1) discussion is also a good practice. But generally speaking references to 104(a) and especially to 104(b) elsewhere in the answer usually showed abysmally bad judgment and understanding of the rules and more often than not talked the students out of points.

FRE 401

• FRE 401
  • Rule 401. Test for Relevant Evidence
    Evidence is relevant if:
    (a) [Relevance] it has any tendency to make a fact more or less probable than it would be without the evidence; and
    (b) [Materiality] the fact is of consequence in determining the action.
• MALAVET
  • The call went to identify defendant by name and physical description as the party responsible for the crimes charged.
  • Where 403 leans towards admission (is weighted in favor thereof) FRE 401 is overwhelmingly weighted in favor of admission to admit.
  • Cocaine base or crack was the charge and the evidence went to that. It also went to intent to distribute by expressly describing selling activities.
  • The best way to show me that you got this was to use the statute and the Pattern Jury Instruction AND EDIT IT TO CHOOSE THE APPROPRIATE SELECTION and FILL IN THE BLANKS PROPERLY.
  • The items in brackets in the instructions are either blanks to be filled in or choices to be included or excluded. By making your choices properly, you showed that you understood what the material facts were in this case. That would then allow you articulate a proper evidential hypothesis to explain logical relevance.
  • Knowingly and intentionally possessing. The caller claims to have seen Kenny Paul carrying the drugs and intentionally putting them in his car, showing intentional and knowing possession. The police had seen the drugs, but there was someone other than defendant in the car and evidence of him being seen handling the drugs knowingly and intentionally, before being caught and panicking, was probative of this element.
  • Intending to distribute. The caller described Kenny Paul’s pattern of doing business and his ongoing “plan to deliver possession of a controlled substance to someone else.” So, the charge was not “distributing” it was “possessing and intending to distribute”.
  • The “controlled substance” was cocaine base, which is otherwise known as crack; you have to explain that. You also had to note that the cocaine hydrochloride (cocaine powder) did not matter to the prosecution. Have you heard of disparities in sentencing between powdered cocaine and crack? It was even an issue raised by the defendant and I gave you the sentencing guidelines to emphasize the point. So you had to use that as the major focus of your relevance discussion.
  • As to the actual controlled substance and the threshold amount, that was for the expert to testify to and the agents to lay the foundation by establishing that they confiscated the contraband that was tested.
  • The first call goes mostly to the intent to distribute element by describing him as an active seller.
  • Call two goes to the possession element by describing his possession of drugs and also to the intent by again describing how he was operating.
  • This later is confirmed by independent observation by the officers.
  • As to the materiality and relevance distinction, the rule maintains it, what it chooses to modify from the common law is the change from “materiality” which was often misread to include a “weight” or “importance to the resolution of the case” component that is entirely inappropriate at the 401 determination stage. Hence the replacement with “of consequence”.
  • But to say that the relevance and materiality components have been combined in to a single standard, rather than into a single rule especially after the restyling broke them up expressly, was just canned outline abuse run amok.

FRE 402 Potentially Admissible

• Rule 402. General Admissibility of Relevant Evidence
  • [a] Relevant evidence is admissible unless any of the following provides otherwise:
    — the United States Constitution;
    — a federal statute;
    — these rules; or
    — other rules prescribed by the Supreme Court.
    [b] Irrelevant evidence is not admissible.
• MALAVET
  • Most liberal standard of the four that were considered is adopted by the rules. Why? How does that apply here?
  • Evidence becomes potentially admissible because we have specific rules that apply and at least the possibility of FRE 403 exclusion.

Hearsay: FRE 801(a),(b),(c) NOT (d)

• Rule 801(a)-(c). Definitions That Apply to This Article
  • (a) Statement. “Statement” means a person’s
    [1] oral assertion,
    [2] written assertion, or
    [3] [A] nonverbal conduct,
    [B] if the person intended it as an assertion.
    (b) Declarant. “Declarant” means the person who made the statement.
    (c) Hearsay. “Hearsay” means a statement that:
    (1) the declarant does not make while testifying at the current trial or hearing; and
    (2) a party offers in evidence to prove the truth of the matter asserted in the statement.
• MALAVET
  • DO NOT BRING UP 801(d) in any way.
  • There were two calls and two declarants in each call. Refer to the two ends of the discussion, the operator and the caller. The bottom line is that the operator’s part of the discussion will be allowed for contextual purposes to understand what the caller is saying, provided that an exception may be found for the caller.
  • 801(a)[1] Oral assertions on the 911 call recordings and transcripts because the question is how were the originally made.
    801(b) “Declarant” caller and declarant operator
    801(c)(1) Neither operator nor caller testified at trial. Calls preceded the trial.
    801(c)(2) Certainly the statements by caller were offered for a truth purpose to ID defendant, to prove he intentionally possessed and sold crack, intent to distribute.
  • I was astonished at how many people simply continue to paraphrase rules rather than quoting the current language that is so precise about things such as “not ma[d]e while testifying at the current trial or hearing.” This was a general problem for many answers, but it was especially problematic here.

FRE 802 and the Hearsay Risks

• Rule 802. The Rule Against Hearsay
  • [a] Hearsay is not admissible
    [b] unless any of the following provides otherwise:
    [1] a federal statute;
    [2] these rules; or
    [3] other rules prescribed by the Supreme Court.
• Malavet
  • This is the place to discuss why the rules of evidence distrust and often exclude hearsay evidence.
• [CB] Rationales for exclusion
  • Why Exclude Hearsay?
    (1) The absence of cross-examination
    (2) The absence of demeanor evidence
    (3) The absence of the oath
    Why do we distrust Hearsay? Four Risks:
    (1) Risk of Faulty Memory
    (2) Risk of Misperception
    (3) Risk of "Ambiguity" or "Faulty Narration."
    (4) Risk of Distortion

FRE 803(1) and Nuttal (Especially as to Reliability)

• Rule 803(1). Exceptions —Regardless of Whether the Declarant Is Available
  — The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:
  (1) Present Sense Impression.
  [a] A statement describing or explaining an event or condition,
  [b] made while or immediately after the declarant perceived it.
• [CB] Nuttal v. Reading
  • She did hear her husband characterize the statements of his boss at the very moment he heard what Marquette had to say and immediately thereafter. Such characterizations, since made substantially at the time the event they described was perceived, are free from the possibility of lapse of memory on the part of the declarant. And this contemporaneousness lessens the likelihood of conscious misrepresentation. All things considered, we think that Nuttall's statements during and immediately following the telephone conversation should be admitted into evidence to prove that he was being compelled to come to work.
• MALAVET
  • ACN on contemporaneity requirement was important here as well and the better answers used it effectively.
  • The tense of the language used by the caller was critical. Present sense impression and present tense description go together here. Quoting from the transcript of the call was critical to factual support of your answer in this section.
  • I was a bit puzzled by how many students tried to argue that the time between the calls did not raise problems under 803(1), which tended to then result in ignoring that the caller was once again describing things in the present tense apparently as he was observing the evolution of the scene.

Independent Corroboration and 803(1)

• Corroboration as a related to a finding reliability was also important.
• Here you had good old fashioned police work: officers responded to a report of suspicious activity, went to the location, identified the vehicle in an open location and made observations of items in plain view; then they staked out the car. After arrest and seizure of the contraband, testing confirmed it to be illegal narcotics. The officers confirm the timeline (they arrived shortly after the calls were made), since the caller identified himself to them, they confirmed his presence in the area where he could see what he claimed, and then they confirmed the ID of the suspect, the car, and, eventually, the drugs.
• Even if independent confirmation is not required, it is always useful to establishing the reliability of the evidence and here you had the officers’ observations and the testing of the contraband to confirm controlled substances among other things.
• The case we discussed in relation to 803(1) was critical. Nuttal to the observation and timing question of the rule and the unstated requirement of corroboration as it relates to reliability of the evidence and increasing its probative value. You could even use the 803(2) problem “I felt a sudden pain” to illustrate the need for or usefulness of corroboration. You would even use Ohio v. Roberts to discuss reliability as a rules standard, even if it is no longer a constitutional standard.
• On the corroboration discussion, you certainly should have used FRE 702 to show that training allowed the officers to testify to some important facts such as the amount of drugs and the type of contraband that they saw in plain view. Then the lab tech testifies to the fact that you actually had cocaine hydrochloride and cocaine base, also 702. But this discussion could not be thrown out alone, it had to be tied to the hearsay problem by tying it to the corroboration, independent evidence and partial bootstrapping discussion of 803(1).
• Many fairly good answers stumbled in this section.

The Sixth Amendment and Crawford Doctrine

• Start by quoting the text of the Sixth Amendment confrontation clause. Then go to Crawford (or perhaps start with Ohio v. Roberts and then go to Crawford).
• Quoting the Sixth Amendment Confrontation Clause and indicating that it applied here was a good start. Since this was a federal prosecution, reference to the 14th Amendment was unnecessary.
• I was then looking for a thorough and thoughtful discussion of Crawford and their progeny, especially the 911 call cases, including the use of Arnold. Fundamentally, you had testimonial hearsay given by declarant caller that was not saved by any constitutional exception, including, but not limited to the Emergency Doctrine (hence 803(1) instead of 803(2)). The operator’s part of the conversation as a non-truth use could indeed be saved by the exceptions for non-truth use acknowledged in the Crawford doctrine, but since its admissibility was contingent on its use to explain the caller’s words, the inadmissibility of the caller’s part of the conversation made it inappropriate to proceed with the operator (some reference to U.S. v. Check might work here).
• Police Interrogation by 911 Operator police agent not with the Primary Purpose of meeting an ongoing emergency or to collect testimonial hearsay? Clearly the latter given your instructions. Declarant’s intent clearly investigatory and prosecutorial as was the police investigation, applying a totality of the circumstances test as seen most clearly in Michigan v. Bryant’s majority opinion. Furthermore, neither declarant appeared at trial for cross-examination or direct testimonial purposes, there is no showing of unavailability nor a prior opportunity to cross-examine. No constitutional exception exists, therefore the evidence must be excluded.
• Neither the 911 operator nor the caller appeared at trial for cross-examination and there was no showing on the record of either constitutional unavailability or prior opportunity to cross-examine, thus the production rule requirements that kicked in when you labeled the statements testimonial are not met and the evidence must be excluded on 6th Amendment grounds. Students often insist on discussing FRE 804(a) and somehow finding unavailability as part of the Crawford analysis. That is unwise where the evidence is being excluded and where the fact-pattern includes no discussion of why the declarants were not present at trial.

An Annoying Discussion.

• I saw multiple answers stating that Crawford ruled that the sixth amendment ONLY applied to testimonial statements. That is not accurate. Crawford ruled that the sixth amendment was primarily or especially directed to testimonial statements, but it was Davis that finally totally overruled Roberts by ruling that the 6th amendment only applies to testimonial statements, as I repeatedly discussed in class.
• The discussion about White at pages 379 and 380 of the seventh edition of the textbook acknowledges an invitation to overrule White by applying the 6th amendment only to testimonial statements, but Justice Scalia declines:
  • In White, we considered the first proposal and rejected it. Although our analysis in this case casts doubt on that holding, we need not definitively resolve whether it survives our decision today, because Sylvia Crawford’s statement is testimonial under any definition. This case does, however, squarely implicate the second proposal.
• Then there is the language about flexibility to the states being permitted as to non-testimonial statements and that was consistent with Ohio v. Roberts. At page 382 of the text:
  • Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law—as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether.
• But the question is if that is a because non-testimonial statements get a LESSER level of protection under the 6th Amendment and Roberts, or rather if the Sixth amendment does not apply to them at all. And the court once again does not address it.
• It addressed it squarely and expressly in Davis, in portions of the opinion edited out of the casebook’s 7th edition, but that I presented and discussed in class and have in the webnotes and powerpoint slides.
• In part III A of the opinion Justice Scalia acknowledges that while these quotes strongly suggest the answer, the matter was left open in Crawford. He writes:
  • We must decide, therefore, [1] whether the Confrontation Clause applies only to testimonial hearsay; and, [2] if so, whether the recording of a 911 call qualifies.
[383] The answer to the first question was suggested in Crawford, even if not explicitly held: 
"The text of the Confrontation Clause reflects this focus [on testimonial hearsay]. It applies to `witnesses' against the accused-in other words, those who `bear testimony.' 1 N. Webster, An American Dictionary of the English Language (1828). `Testimony,' in turn, is typically `a solemn declaration or affirmation made for the purpose of establishing or proving some fact.' An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not."
  • A limitation so clearly reflected in the text of the constitutional provision must fairly be said to mark out not merely its "core," but its perimeter. In Crawford, it sufficed for resolution of the case before us to determine that "even if the Sixth Amendment is not solely concerned with testimonial hearsay, that is its primary object, and interrogations by law enforcement officers fall squarely within that class." Id., at 53, 124 S. Ct. 1354, 158 L. Ed. 2d 177. Moreover, as we have just described, the facts of that case spared us the need to define what we meant by "interrogations." The Davis case today does not permit us this luxury of indecision. The inquiries of a police operator in the course of a 911 call fn2 are an interrogation in one sense, but not in a sense that "qualifies under any conceivable definition." We must decide, therefore, whether the Confrontation Clause applies only to testimonial hearsay; and, if so, whether the recording of a 911 call qualifies.

Some highlights of the case language that you might use in the answer.

• Crawford v. Washington
  • [CB] Adopting the Testimonial view
to apply the prohibition

    • The text of the Confrontation Clause reflects this focus. It applies to "witnesses" against the accused --in other words, those who "bear testimony." 1 N. Webster, An American Dictionary of the English Language (1828). "Testimony," in turn, is typically "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. The constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement.
  • Clearly Testimonial
    • [CB] *** Regardless of the precise articulation, some statements qualify under any definition-for example, ex parte testimony at a preliminary hearing.
    • [CB] Statements taken by police officers in the course of interrogations are also testimonial under even a narrow standard. Police interrogations bear a striking resemblance to examinations by justices of the peace in England. The statements are not sworn testimony, but the absence of oath was not dispositive. Cobham's examination was unsworn, yet Raleigh's trial has long been thought a paradigmatic confrontation violation.
  • [CB] Production Theory: defines the prohibition

    • The historical record also supports a second proposition: that the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless [1] he was unavailable to testify, and [2] the defendant had had a prior opportunity for cross-examination. The text of the Sixth Amendment does not suggest any open-ended exceptions from the confrontation requirement to be developed by the courts. Rather, the "right . . . to be confronted with the witnesses against him," is most naturally read as a reference to the right of confrontation at common law, admitting only those" exceptions established at the time of the founding. See Mattox v United States, 156 U.S. 237, 243 (1895). As the English authorities above reveal, the common law in 1791 conditioned admissibility of an absent witness's examination on unavailability and a prior opportunity to cross-examine. The Sixth Amendment therefore incorporates those limitations. The numerous early state decisions applying the same test confirm that these principles were received as part of the common law in this country.


  • [CB] Exceptions?

    • We do not read the historical sources to say that a prior opportunity to cross-examine was merely a sufficient, rather than a necessary, condition for admissibility of testimonial statements. They suggest that this requirement was dispositive, and not merely one of several ways to establish reliability. This is not to deny, as the Chief justice notes, that "there were always exceptions to the general rule of exclusion" of hearsay evidence. Several had become well established by 1791. But there is scant evidence that exceptions were invoked to admit testimonial statements against the accused in a criminal case.[6] Most of the hearsay exceptions covered statements that by their nature were not testimonial-for example, business records or statements in furtherance of a conspiracy.
      [CB] *** [Reliability Lives! Under the rules] In contrast, we considered reliability factors beyond prior opportunity for cross-examination when the hearsay statement at issue was not testimonial. See Dutton v. Evans, 400 U.S., at 87-89 (plurality opinion).
  • [CB] Rule
:
    • Our cases have thus remained faithful to the Framers' understanding: [377]Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.[9]
  • [CB, footnote] 9. . . . [Cross-examination cures all]
    • Finally, we reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. See California v. Green, 399 U.S. 149 (1970). It is therefore irrelevant that the reliability of some out-of-court statements "`cannot be replicated, even if the declarant testifies to the same matters in court"' (quoting United States v. Inadi, 475 U.S. 387, 395 (1986)).
  • [Admissions Doctrine?]
    • The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it. ([Non-Truth uses] The Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. See Tennessee v Street, 471 U.S. 409 (1985).)
  • [CB] The unpardonable vice of the Roberts
    • [CB] The unpardonable vice of the Roberts test, however, is not its unpredictability, but its demonstrated capacity to admit core testimonial statements that the Confrontation Clause plainly meant to exclude. ***
    • [CB] Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law-as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. ***
    • [CB] In this case, the State admitted Sylvia's testimonial statement against petitioner, despite the fact that he had no opportunity to cross-examine her. That alone is sufficient to make out a violation of the Sixth Amendment. Roberts notwithstanding, we decline to mine the record in search of indicia of reliability. Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.
• Davis v. Washington.
  • MALAVET
    • 911 operators are police agents and hersay they collect may well be testimonial, unless it falls under the Emergency Doctrine. In this specific case there was no an emergency (let alone an ongoing one) as in Davis, more analogous to Hammon v. Indiana.
  • II
    [CB] Without attempting to produce an exhaustive classification of all conceivable statements -- or even all conceivable statements in response to police interrogation -- as either testimonial or nontestimonial, it suffices to decide the present cases to hold as follows: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. fn1
  • Fn1 Our holding refers to interrogations because, as explained below, the statements in the cases presently before us are the products of interrogations -- which in some circumstances tend to generate testimonial responses. This is not to imply, however, that statements made in the absence of any interrogation are necessarily nontestimonial. The Framers were no more willing to exempt from cross-examination volunteered testimony or answers to open-ended questions than they were to exempt answers to detailed interrogation. (Part of the evidence against Sir Walter Raleigh was a letter from Lord Cobham that was plainly not the result of sustained questioning. Raleigh's Case, 2 How. St. Tr. 1, 27 (1603).) And of course even when interrogation exists, it is in the final analysis the declarant's statements, not the interrogator's questions, that the Confrontation Clause requires us to evaluate.
  • III
    • A
      [CB] We must decide, therefore, [1] whether the Confrontation Clause applies only to testimonial hearsay; and, [2] if so, whether the recording of a 911 call qualifies.
[383] The answer to the first question was suggested in Crawford, even if not explicitly held: 
"The text of the Confrontation Clause reflects this focus [on testimonial hearsay]. It applies to `witnesses' against the accused-in other words, those who `bear testimony.' 1 N. Webster, An American Dictionary of the English Language (1828). `Testimony,' in turn, is typically `a solemn declaration or affirmation made for the purpose of establishing or proving some fact.' An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." 


    • [CB] A limitation so clearly reflected in the text of the constitutional provision must fairly be said to mark out not merely its "core," but its perimeter. In Crawford, it sufficed for resolution of the case before us to determine that "even if the Sixth Amendment is not solely concerned with testimonial hearsay, that is its primary object, and interrogations by law enforcement officers fall squarely within that class." Id., at 53, 124 S. Ct. 1354, 158 L. Ed. 2d 177. Moreover, as we have just described, the facts of that case spared us the need to define what we meant by "interrogations." The Davis case today does not permit us this luxury of indecision. The inquiries of a police operator in the course of a 911 call fn2 are an interrogation in one sense, but not in a sense that "qualifies under any conceivable definition." We must decide, therefore, whether the Confrontation Clause applies only to testimonial hearsay; and, if so, whether the recording of a 911 call qualifies.
  • Fn2 If 911 operators are not themselves law enforcement officers, they may at least be agents of law enforcement when they conduct interrogations of 911 callers. For purposes of this opinion (and without deciding the point), we consider their acts to be acts of the police. As in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), therefore, our holding today makes it unnecessary to consider whether and when statements made to someone other than law enforcement personnel are "testimonial." [Note that Justice Thomas agrees that 911 operators are agents of law enforcement in foonote 1 of his opinion.]
  • [CB: Note the reference to unwitting statements to an informant]
    • Even our later cases, conforming to the reasoning of Ohio v. Roberts, 448 U.S. 56 (1980),4 never in practice dispensed with the Confrontation Clause requirements of unavailability and prior cross-examination in cases that involved testimonial hearsay, see Crawford (citing cases), with one arguable exception (discussing White v. Illinois). Where our cases did dispense with those requirements even under the Roberts approach the statements at issue were clearly nontestimonial. See, e.g., Bourjaily v. United States, 483 U.S. 171, 181-184 (1987) (statements made unwittingly to a Government infor¬mant); Dutton v. Evans, 400 U.S. 74, 87-89 (1970) (plurality opinion) (statements from one prisoner to another).
      
• Michigan v. Bryant
  • MALAVET
    • NOT An Emergency as Defined in This Case
  • [Primary Purpose]
  • [CB] But there may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony. In making the primary purpose determination, standard rules of hearsay, designed to identify some statements as reliable, will be relevant. Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause. Thus, we confront for the first time circumstances in which the “ongoing emergency” discussed in Davis extends beyond an initial victim to a potential threat to the responding police and the public at large. This new context requires us to provide additional clarification with regard to what Davis meant by “the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.”"
  • [Objective Totality of the Circumstances Standard]
    • [CB] To determine whether the “primary purpose” of an interrogation is “to enable police assistance to meet an ongoing emergency,” Davis, which would render the resulting statements nontestimonial, we objectively evaluate the circumstances in which the encounter occurs and the statements and actions of the parties."
    • [CB] An objective analysis of the circumstances of an encounter and the statements and actions of the parties to it provides the most accurate assessment of the “primary purpose of the interrogation.” The circumstances in which an encounter occurs—e.g., at or near the scene of the crime versus at a police station, during an ongoing emergency or afterwards—are clearly matters of objective fact. The statements and actions of the parties must also be objectively evaluated. That is, the relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals’ statements and actions and the circumstances in which the encounter occurred. Implicit in Davis is the idea that because the prospect of fabrication in statements given for the primary purpose of resolving that emergency is presumably significantly diminished, the Confrontation Clause does not require such statements to be subject to the crucible of cross-examination."
  • [At that time]
    • [CB] The existence of an ongoing emergency must be objectively assessed from the perspective of the parties to the interrogation at the time, not with the benefit of hindsight. If the information the parties knew at the time of the encounter would lead a reasonable person to believe that there was an emergency, even if that belief was later proved incorrect, that is sufficient for purposes of the Confrontation Clause. The emergency is relevant to the “primary purpose of the interrogation” because of the effect it has on the parties’ purpose, not because of its actual existence. This logic is not unlike that justifying the excited utterance exception in hearsay law. Statements “relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition,” FRE 803(2), are considered reliable because the declarant, in the excitement, presumably cannot forma falsehood."
    • [CB] Second, the question whether an emergency is ongoing involves a “context-dependent inquiry,” and domestic violence cases like Davis and Hammon have “a narrower zone of potential victims than cases involving threats to public safety.” The duration and scope of an emergency “may depend in part on the type of weapon employed,” and in Hammon the result might have been different if Herschel had been“reported to be armed with a gun.” Also the victim’s medical condition counts because it sheds light on his ability “to have any purpose at all” in answering police questions. To be sure, an emergency may evolve into an investigation if the perpetrator “is disarmed, surrenders, is apprehended, or...flees with little prospect of posing a threat to the public.” Trial courts can determine the point at which “any transition from nontestimonial to testimonial occurs.” Finally, the existence or not of an emergency is not dispositive: Rather it is “simply one factor” that affects “primary purpose.” Another factor is the “informality” of an encounter between victim and police, and in here questioning went forward “in an exposed, public area, prior to the arrival of emergency medical services, and in a disorganized fashion,” making it different from stationhouse questioning in Crawford.]"
  • [DECLARANT AND POLICE]
    • [CB]In addition to the circumstances in which an encounter occurs, the statements and actions of both the declarant and interrogators provide objective evidence of the primary purpose of the interrogation...."
    • [CB] The combined approach also ameliorates problems that could arise from looking solely to one participant. Predominant among these is the problem of mixed motives on the part of both interrogators and declarants. Police officers in our society function as both first responders and criminal investigators. Their dual responsibilities may mean that they act with different motives simultaneously or in quick succession. Taking into account a victim’s injuries does not transform this objective inquiry into a subjective one. The inquiry is still objective because it focuses on the understanding and purpose of a reasonable victim in the circumstances of the actual victim-circumstances that prominently include the victim’s physical state...."
  • [ONGOING Emergency. Distinguish in the Exam]
• [CB] As the context of this case brings into sharp relief, the existence and duration of an emergency depend on the type and scope of danger posed to the victim, the police, and the public...."
• [Primary Purpose]
  • [CB] When the police arrived at Covington’s side, their first question to him was “What happened?” Covington’s response was either “Rick shot me” or “I was shot,” followed very quickly by an identification of “Rick” as the shooter. In response to further questions, Covington explained that the shooting occurred through the back door of Bryant’s house and provided a physical description of the shooter. When he made the statements, Covington was lying in a gas station parking lot bleeding from a mortal gunshot wound to his abdomen. His answers to the police officers’ questions were punctuated with questions about when emergency medical services would arrive. He was obviously in considerable pain and had difficulty breathing and talking. From this description of his condition and report of his statements, we cannot say that a person in Covington’s situation would have had a “primary purpose” “to establish or prove past events potentially relevant to later criminal prosecution.” The questions they asked—“what had happened, who had shot him, and where the shooting occurred”—were the exact type of questions necessary to allow the police to “‘assess the situation, the threat to their own safety, and possible danger to the potential victim’” and to the public, Davis, including to allow them to ascertain “whether they would be encountering a violent felon.” In other words, they solicited the information necessary to enable them“to meet an ongoing emergency.”"
• [Primary Purpose: Informality]
  • [CB] Finally, we consider the informality of the situation and the interrogation. This situation is more similar, though not identical, to the informal, harried 911 call in Davis than to the structured, station-house interview in Crawford. As the officers’ trial testimony reflects, the situation was fluid and somewhat confused: the officers arrived at different times; apparently each, upon arrival, asked Covington “what happened?”; and...they did not conduct a structured inter- rogation. The informality suggests that the interrogators’ primary purpose was simply to address what they perceived to be an ongoing emergency, and the circumstances lacked any formality that would have alerted Covington to or focused him on the possible future prosecutorial use of his statements."

FRE 403 and 105

• MALAVET
  • Technically speaking, you need go no further after resolving the inadmissibility under Crawford. If you did that or note it, you got 20 points.
  • If you attempted explain why it was not pertinent to do so, I might give a few more, but that was very rarely pulled off.
  • More importantly, anyone who reached 403 and 105 before resolving the 6th Amendment question LOST 40 points IMMEDIATELY.
  • I was not surprised that EVERYONE remembered my “last hurdle to admissibility” admonition. But I was fairly surprised that few remembered my discussion that there are times in the outline when you “need go no further” because a technical matter entirely disposes of the admissibility decision, like a Sixth Amendment objection, for example.
  • 403 out of order.
    • FRE 403. You do not reach 403 since the constitutional issue resolves the matter.
      FRE 105. Not something that can be fixed by instructions.
      [Manageable 403 problems: yes, Delli Paoli or not, Bruton/Krulewitch]