Evidence Outline - Professor Tilly - Campbell Law - Part 6

But- Bruton v. United States, (joint trial) A statement that explicitly names a co-defendant and implicates that codefendant on its face violates 6A right to confrontation. The statement cannot be admitted in this form

4. Prosecutor can redact the statement and make it fine
   1. Can also “wait and see” if Defendant testifies then introduce the full form
5. But- This doesn’t apply to co-conspirator statements!!!!!! Co-conspirator statements made during and in furtherance of the conspiracy are not considered testimonial so their use does not implicate the confrontation clause

Remember this Rule is only about statements AGAINST the opposing party, you can’t use them on your party’s behalf

• BUT FRE 106: Remainder of or Related Writings or Recorded Statements: If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part--or any other writing or recorded statement--that in fairness ought to be considered at that time
  • ONLY applies to writings or recorded statements
    • MUST object at time other party is offering it
  • “Rule of completeness” writing/recording offered must be to 1) explain admitted portion; 2) place the admitted portion in context; 3) avoid misleading the trier of fact; or 4) insure a fair and impartial understanding
    • I.E. – prosecutor offers video of Mike Pence saying “i hate gay people” but the full video actually says “i can’t believe this prosecutor thinks i hate gay people- I love equality!” → Mike can bring that in

FRE 803(1) Present Sense Impressions: Statement describing or explaining an event or condition, made while or immediately after the declarant perceived it

• Requirements:
  1. Event or condition occurred;
     • No requirement of emotions affected,
  2. Statement describes or explains that event or condition; and
     • More narrow than excited utterance
       • I.E. – child tracks in mud “my mom is going to have a cow!” is EU but not PSI
         • If he says “looks like i tracked mud in, who cares” →PSI but not EU
  3. Declarant must have made the statement “while or immediately after he perceived it”
     • Can’t be time for reflection, this has nothing to do with how witness was impacted by the event or condition
       • More time restrictive than excited utterance!!
         • “Perceived it” → first-hand knowledge requirement for declarant regarding the event or condition
• When someone is answering questions → unlikely it’s getting in under this rule
  1. I.E. – expert reads report of tire marks for cop to see if they match and quickly says “yep these match” → there has been time for reflection, even if it was quick b/c of expert’s expertise

FRE 803(2) Excited Utterance: A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused

• Requirements:
  • Startling Event or condition
  • Statement relates to the event
    • Broader than PSI
  • Statement was made while under the stress of excitement that it caused
    • Looking for something subjectively impacting the declarant, varies based on context such as the magnitude of the event that occurred and the type/age of declarant (still use objective signs)
      • I.E. – paramedic is not as phased by seeing trauma as someone else would be
        • Young child will be upset for awhile
      • I.E. – you’re appalled way longer after seeing someone getting shot as opposed to seeing a minor fight
• General Rule → if sufficient time has passed to give declarant time to reflect on the event, not getting in
  • More lenient than PSI though, examples in rules:
  • Rape victim still upset hour after incident talking to cop in response to his questioning
• Slip and fall, bystander says: “I told them to clean it up about two hours ago--an hour and a half ago” → still relates to the event enough for EU
  • But- this would not be describing the event itself for PSI (might be reflective thought issue too)
• U.S. v. Boyce, girlfriend getting beat by husband runs to neighbors to call 911, is freaking out on the phone → probably too long after to be present sense but excited utterance made 911 call admissible