11/5/15:

CRIMINAL PROCESS NOTES

2 different trial rights- right to be present & right to confront Witnesses
o Illinois v Allen= right to be present at trial, right to confront, not
absolute right, D cannot be disruptive of proceedings
Court suggested 3 Options for disruptive defendant- removal,
gagging (hard to participate), contempt (not big deal if facing
bigger punishment)
o Deck v Missouri- shackles in courtroom?
Right to not have visual shackles, even at penalty phase of
death penalty case
Actual trial= show up in street clothes
No routine use, even for murder cases
Dissent- jurors all know what is going on here
Tables have modesty panels in court to hide from jury
o Maryland v Craig- does it have to be direct confrontation?
Intimidating for child to speak in front of alleged abuser
Upheld b/c necessity of the case & safeguards of reliability
Dissent- plain language of Constitution- should not be
interest-balancing, confrontation guaranteed in
Constitution!
o Crawford v Washington 6 Amendment= right of confrontation regardless of hearsay
exception
if testimonial evidence defense must have right to crossexamine
what is testimonial = testimony in GJ, in preliminary
exam, by affidavit, former trial, said on street?
Earlier Crawford - a reliability test
Out Of Court statement usually victim who died, trying to get
their statements in (hearsay!)
Remember Sir Walter Raleigh
Crawford analysis flowchart= on power point
Not subject if not available
Is evidence testimonial?
o Ask when analyzing these problems

Does Crawford exception apply- W unavailable b/c W

D, person became unavailable for purpose of keeping
them from testifying
D can waive right to confrontation
courts can order D be medicated as long as doesnt affect ability at trial
Crawford exceptionso forfeiture- wrongdoing by D- pros must prove in tent to silence by
making the W unavailable &
o Dying DeclarationsSANE Nurses- nurses who administer rape kits, trained in asking
Questions- acting as agent of police or medical personnel- courts split

EVIDENCE NOTES- 11/5

-

review:
o 803.4= medical exception, regardless of declarants
availability, reliable hearsay
o 803.5= read orally, not visual
o 612= not presented to jury unless adverse party
introduces
o
803.6 Business records
o rationale- routine use in business, accurate records makes
it reliable
employees usually do not remember details for every
transaction
o movie clip...
803.7 business records
o information that is omitted
o this rule is used when a party wants to show that because
ordinarily such a fact is part of routine, its absence from
the record proves it does not exist
problem 7.39
o kept in course of regular conduct of business, regular
practice of business, made at time of return
o employee who kept records is reliable as he has no motive
to lie, trustworthy
o customer does not have same incentive for truthtelling
problem 7.39b
o omission of allegation of defect, record establishes
customer didnt like
problem 7.40

o 803.6= part of Balcos routine business(log=regular

record)
o 801d2= Anderson operating as Bondss agent, but only if
party opponent wants to bring in, prosecutor is bringing
here, so yes here Anderson as agent
o look at all interactions for hearsay
o first establish hearsay then look if exception is needed
o 801d2e= you could say conspiracy between Bonds &
Anderson
803.8- public records
o Hearsay exception for a record or statement of a public
office if:
(A) it sets out:
(i) the offices activities; or
(ii) a matter observed while under a legal duty
to report, but not including, in a criminal case,
a matter observed by law-enforcement
personnel; or
(iii) in a civil case or against the government
in a criminal case, factual findings from a
legally authorized investigation; and
o rationale- trustworthy,
-Assumption public office will perform duty properly
and unlikely he will remember details independently
of the record. Regular records are reliable
FRE 803(10): Absence of Public Records
o Hearsay exception for testimonyor a certification under
Rule 902 that a diligent search failed to disclose a public
record or statement if the testimony or certification is
admitted to prove that:
(A) the record or statement does not exist; or
(B) a matter did not occur or exist, if a public office
regularly kept a record or statement for a matter of
that kind.
o Movie clips...
FRE 807: Residual Exception= the catch-all exception! Even if no
other exception applies, admit under residual then!
o alternative way to prove fact, is trustworthy
notwithstanding the fact that it is hearsay