Confrontation, Privileges and Public Policy Exclusions: every key term you need (+ practice quiz)
25 flashcard terms for Evidence Topic 7, written to match the course framework. Study them here, then drill them as interactive flashcards, or test yourself with the 15-question quiz — free, no account needed.
The Sixth Amendment guarantee that an accused in a criminal prosecution may be confronted with the witnesses against him, applied to the states through the Fourteenth Amendment.
Crawford v. Washington
2004 decision holding that testimonial hearsay is inadmissible against a criminal defendant unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination.
Ohio v. Roberts reliability test
The superseded approach that admitted hearsay against an accused if it fell within a firmly rooted exception or bore particularized guarantees of trustworthiness. Crawford rejected this for testimonial statements.
Testimonial statement
A statement made with the primary purpose of creating an out of court substitute for trial testimony, such as formal police interrogation answers, affidavits, and prior testimony.
Nontestimonial statement
A statement not aimed at proving past events for later prosecution. It raises no Confrontation Clause bar and is governed solely by the hearsay rules and due process.
Primary purpose test
The inquiry, objectively assessed from the circumstances and the statements and actions of both participants, into whether an interrogation sought to meet an ongoing emergency or to establish past facts for prosecution.
Davis v. Washington
2006 decision treating frantic 911 statements identifying an assailant during an ongoing emergency as nontestimonial, while stationhouse style questioning after the danger passed was testimonial.
Michigan v. Bryant
2011 decision broadening the emergency inquiry to consider the type of weapon, the scope of the threat to police and the public, the informality of the encounter, and the medical condition of the declarant.
Melendez-Diaz v. Massachusetts
2009 decision holding that sworn forensic laboratory certificates of analysis are testimonial affidavits, so the analyst must testify unless unavailable with a prior chance to cross-examine.
Bullcoming v. New Mexico
2011 decision barring a surrogate analyst who neither performed nor observed the reported test from introducing a certified blood alcohol report in place of the certifying analyst.
Surrogate witness problem
The confrontation defect that arises when the prosecution offers a stand in expert to relay the testimonial findings of an absent analyst whom the defendant never had a chance to cross-examine.
Williams v. Illinois
2012 fractured decision on an expert who relied on an outside lab DNA profile. No rationale drew five votes, leaving basis evidence and the targeted individual theory unsettled.
Notice and demand statute
A procedure allowing the state to give notice of intent to use a forensic report and requiring the defendant to demand the analyst, which the Court has approved as consistent with confrontation.
Bruton v. United States
1968 decision holding that admitting a nontestifying codefendant confession that facially incriminates the defendant violates confrontation despite a limiting instruction to the jury.
Bruton redaction and severance
Cures for a codefendant confession problem: sever the trials, omit the confession, or redact all references to the defendant, though obvious blank or deletion substitutes remain improper.
Forfeiture of the confrontation right
A defendant who intentionally procures a witness absence loses the Sixth Amendment objection to that witness testimonial statements; Giles v. California requires a purpose to prevent the testimony, not merely causing the absence.
FRE 501
The rule directing that federal privilege questions be resolved under the common law as interpreted by federal courts in light of reason and experience, with state law governing where it supplies the rule of decision.
Attorney-client privilege elements
A confidential communication between a client or prospective client and a lawyer or the lawyer agent, made for the purpose of obtaining or providing legal advice, and not waived.
Upjohn v. United States
1981 decision rejecting the control group test and protecting communications from employees at any level made at the direction of superiors to counsel about matters within their job duties.
Work product doctrine
Qualified protection for materials prepared in anticipation of litigation, overcome only by substantial need and undue hardship, with near absolute protection for attorney mental impressions.
Crime-fraud exception
Removal of the privilege where the client sought or used legal advice to further an ongoing or future crime or fraud, judged by the client purpose rather than the lawyer knowledge.
FRE 502 waiver limits
The rule confining subject matter waiver to intentional disclosures of related material that in fairness should be considered together, and protecting inadvertent disclosures where reasonable steps were taken.
Trammel v. United States
1980 decision holding that the spousal testimonial privilege belongs to the witness spouse alone, so the defendant spouse cannot bar willing testimony in a federal criminal case.
Marital confidential communications privilege
Protection for private communications made during a valid marriage, held by both spouses, surviving divorce, and inapplicable to acts or to crimes against the spouse or the children.
Jaffee v. Redmond
1996 decision recognizing a federal psychotherapist-patient privilege covering licensed psychiatrists, psychologists, and clinical social workers engaged in confidential therapy.