January 9

From Cyberlaw

Contents 1 And now, the Rules 1.1 Confrontation and Cross Examination 2 Raleigh 3 Confrontation Clause 4 Maddox 5 And then? 6 Pointer (1965) 7 Ohio v. Roberts (1980) 8 Crawford (2004) 9 New York v. Moscat (2004) 10 Vinny clip: Arraignment 11 Rule 801(a)

And now, the Rules

• Federal Rules of evidence: 68 of them.
• learning the rules = like learning a language by learning vocabulary
• the rules are expressions of principles, have grown as a system like a language
• they didn’t exist in 1975; they were just common law principles then.
  • They came from an interaction of concern about fairness and efficiency in running this dispute machine
• The 100 rules: talk about the scope and purpose
  • 103: make a record
  • 104: fundamental division of function between the two divisional mechanisms of the tiral machine
  • the 200 rules say, don’t bother to prove that which there is no dispute about, and when there is dispute, prove it.
  • 300 rules are presumptions
    • we’ve seen this in the context of peremptories
  • 301: a party is assigned a burden of proof at the outset. A Batson challenge seems to require persuasive evidence, but P doesn’t have that evidence, so he has a burden of going forward. When one side establishes prima facie, P is required to come forward with an explanation (which can be quite silly and still work), and after that the burden is back on the moving party.
    • The burden of persuasion always remains on the moving party
• 400 rules: relevance
  • 401: no one really understands it. it speaks in a misleading probabilistic language. The principle this rule is trying to express = relevance (for admission) means, this is evidence which it makes sense for the jury to consider.
  • 403 and following: prejudice
• 500 rules: privilege
• 600 rules: witnesses
• 700 rules: experts
• 800 rules: hearsay

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Confrontation and Cross Examination

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Raleigh

• facts
  • they haul in Lord Cobham to the tower of London, make him confess.
  • At trial, they haul in the scribe, and have him give testimony on Cobham’s confession
  • R protests that C should testify in front of him. Can’t convict based on a piece of paper
  • Bring in the ferry man, who says that he heard about it. R dies.
• Case has gone down in lore
• What was wrong with this evidence?
  • We ask W non-leading Questions so we expose the witness’s testimonial capacities
  • Crash ‡ perception ‡ memory ‡ state of mind fl veracity fl clarity
  • What can we conclude from the scribe’s testimony, if we credit all of his testimonial capacities? What does he prove?
    • That which he perceived, which was C confessing. That doesn’t prove that R and C conspired to kill the king.
  • In addition, we would have to assume things about C’s testimonial capacities; that he remembered, is telling the truth, is speaking it clearly.
    • Thinking that the jury can assess testimonial capacities leads to the conclusion that it will only work if we give the jury what it needs to assess testimonial capacities to get through the offer of evidence to the conclusion
    • That’s the idea of hearsay: there is a problem with reporting the others’ statement when the others’ statement is being offered for the truth, b/c you can’t test the testimonial capacities of the other speaker with the dispute resolution machine.
• Bill of Rights
  • III. 2. 3 .trial by jury
  • 5th Am
  • 6th Am: speedy trial, impartial jury, notice, confrontation
  • 7th Am: trial by jury preserved in suits at common law. Must governed by CL rules

Confrontation Clause

• first case dealing with the confrontation clause, Maddox, not till 1895.
• Why the delay? There was no appellate court system in place.
  • Judges used to ride the circuit, and there was appeal to the SC.
  • Appeal to the SC was limited to issues of jurisdiction (judges going beyond their power)
    • Confrontation objections are evidentiary objections. Rulings on objections in the midst of trial were fully within trial judge’s jurisdiction.
  • No intermediate court of appeal to review errors of trial.
• 1891: passage of the Evarts (?) act, with the passage of the courts of appeal. Reviewing errors of the trial court.

Maddox

• two dead witnesses' testimony read into the record.
• 100 years has gone by since the last debate on this subject, and now there’s a challenge.
• trying to figure out what the CC actually means. Right to look the guy in the eye? Ruling out all hearsay? Right to cross examine? Lots of questions.
• Judges look at this history and look at the dying declaration (Rule 804(b)(2)) hearsay exception
  • “a man will not meet his maker with an lie upon his lips”
    • N hasn’t been overwhelmed with dying mens’ last minute veracity
  • Memory and perception are likely to be totally shot when someone is dying
  • why only regarding the circumstances of the killing, rather than other crimes?
  • Problem: don’t have the testimonial capacities to test of the dead man.
  • Rhetorical mode: we’re talking about a trial, where a major objective is to tell V’s story, to make sense for those who remain. Does it make rhetorical sense to deny the dead person the right to speak? No. that doesn’t tell us whether it’s sufficient to convict or reliable.
    • But why doesn’t that apply equally to other situations?
• Comparing dying declaration to two witness’s who were sworn and CE’ed; the court says, that must be at least better than a dying declaration. No confrontation violation here.

And then?

• The next statement on this isn’t till the 1965. A huge shift is the West publishing system. This profoundly changes law. Before that, couldn’t do any systematic research. Afterwards, we have the era of the treatise writers, who started systematizing the law.
• Wigmore on Evidence, who builds his reputation on the 30 exceptions to the hearsay rule. But it seems that the confrontation clause makes all of them questionable, since every time you rely on hearsay for the truth of the matter asserted, you are doing the Raleigh problem (making assumptions about the speaker who wasn’t there).
• Wigmore coined the phrase: Cross-Examination
• On hearsay: “but this test or security may in a given instance be superfluous; it may be sufficiently clear, in that instance, that the statement offered is free enoughf ro the risk of inaccuracy and untrustworthiness, so that the test of CE would be a work of supererogation.” 5 J. Wigmore, Evidence § 1420
  • If I accept the confrontation clause, my whole treatise is shot. So i’ve got to figure out how to preserve hearsay.
• This is nonsense

Pointer (1965)

• Black wanted to assert that the BOR applied to the states. Started a campaign which followed through his whole career, one by one picking off the rights and carrying them over to the states
• D confronted in preliminary hearing with V, has no lawyer
• Black takes opportunity to say that CE = a fundamental element of criminal D
• It instantly appears to everyone that all hearsay raises a confrontation problem, and cases start bubbling up. The court freaks out about hearsay.

Ohio v. Roberts (1980)

• the last thing the court wanted to do was address each and every hearsay exception and make sense of it, or reform the hearsay rule. There’s more going on than rationalist judgments; this is story telling. This is the case until 1980, with Roberts
• you don’t get a whole lot of therefore out of Blackmun. He just lays out the two sides and jumps to the result.
• “When a hearsay declarant is not present for CE at trial, the CC normally requires a showing that he is unavailable” (‘The law has a preference for the live witness.’)
  • This is just wrong.
  • Hearsay exceptions actually fall into two categories, based on availability or unavailability
    • Rule 803: law doesn’t care about availability (business records, without which you could have no civil litigation)
    • Rule 804: to get the hearsay, you must show unavailableness
• “adequate indicia of reliability”
• “reliability can be inferred… when a traditional exception”
  • declares all hearsay rules constitutional
• “in other cases…particularized guarantees of trustworthiness”
  • biggest pressure here came from child abuse cases
  • this statement was made in the full shadow of Wigmore’s silliness
  • basically, evidence comes in when the judge thinks it’s pretty good. but that’s exactly the judgment that Rule 104 says the judge shouldn’t be making.

Crawford (2004)

• overrules Roberts on an analysis
• the most desperate defense of the CC that still leaves the hearsay rule standing says that when P introduces a W, the D atty can CE. Doesn’t govern what the W is allowed to say, but just dictates the procedure. (this leaves hearsay out of the picture, having nothing to do with the constitution)
• “leaving the regulation of out of court statements to the law of evidence would render the CC powerless to prevent even the most flagrant inquisitorial practices”
  • undoing the Roberts delegation to the common law
• if a hearsay statement is testimonial, then you have a right of CE
  • this is a new line
• Scalia: very high value on getting judges out of the position of making substantive judgments about evidence. Making admissibility dependant on the judge doesn’t make sense.

New York v. Moscat (2004)

• 911 = testimonial?
• She wasn’t trying to be a witness, but she was talking to the police.
• How many different forms of hearsay could we imagine?

Vinny clip: Arraignment

• essential function: setting bail, which will hold till the next appearance
• other functions: scheduling
• something mysterious: why should the only possibilities be guilty or not guilty?
  • “not guilty” = a way of defining the dispute
  • think of the civil context. In civ pro, P initiates the case by filing a complaint, which must set out a concise statement of each element. D then answers, wherein he can admit or deny each separate count. The civil trial resolves only those conflicts that are actually in controversy.
  • Compare to crim: P brings an indictment/complaint, and D is required to be inarticulate in response to the indictment. Why?
    • Why can’t the jury just hear the stuff that’s disputed?
    • The D doesn’t want to give away plea bargaining power
    • It’s the P’s power to charge
  • Back to the Nuremberg Trial. Would the trial have been the same if D’s had been able to admit some parts and had no trial with respect to them? Would it have been different in some way that we would care about, relating to the function of having a trial?
    • If the function of the trial is to get the story of the crime told, then conceding in advance thwarts that
  • But this isn’t a function of making P do anything, or of protecting D in anyway. This is an expression of the function of a trial as a form of expiation. A community has been disrupted by a crime, and the trial’s function is to retell the story of the crime in a way that is satisfying.
    • This favors the prosecution, whose job it is to tell the whole story in a way that has impact.
• If the D is able to cut up the narrative by admitting things, then P cannot present a coherent picture.
• This is like the difference between direct and cross. P wants to be able to tell the story to the community.

Rule 801(a)

• (a) a “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion
• (b) not all out of court statements are hearsay. Rather, “hearsay” is a statemnt, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
  • The exclusion only bites when there is relevant hearsay
• (d) not hearsay: prior statements of witnesses, admission by party-opponent