Alain Leibman writes: While much of the jurisprudence addressing the admissibility of out-of-court statements in criminal cases turns on abstract notions of the meaning of the Sixth Amendment’s Confrontation Clause (see a recent example here), defense counsel can sometimes block or successfully appeal the admission of testimony simply because the applicable rules of evidence bar… Continue Reading
Jana C. Volante writes: In Part I of an analysis of the recent Third Circuit case of United States v. Munchak, 2013 WL 2382618 (3d Cir. May 31, 2013), we discussed the court’s treatment of the issue of restitution for tax offenses under Title 26 — none is available — as contrasted with offenses under Title… Continue Reading
The Seventh Circuit holds that the CFTC and the DOJ are the same party for purposes of admitting against the government in a criminal trial under FRE 804(b)(1) the deposition testimony of a witness taken before by CFTC.
Exculpatory statements of witnesses made to defense investigators held by the Eighth Circuit to be insufficiently trustworthy to be admitted under the residual hearsay exception, Rule 807, precisely because they were made to defense investigators.
Since the seismic shift in Confrontation Clause jurisprudence effected by Crawford v. Washington, 541 U.S. 36 (2004), lower courts have struggled to define precisely which "testimonial statements" are now excluded from evidence unless the government can show both that the declarant is unavailable to testify at trial and there was a prior opportunity for cross-examination… Continue Reading
In three recent decisions, the New Jersey Supreme Court considered and applied the parameters of the United States Supreme Court case of Crawford v. Washington, 541 U.S. 36 (2004) to similar, but distinct questions of evidence admissibility. In Crawford, the Court held that under the Confrontation Clause of the Sixth Amendment, “[t]estimonial statements of witnesses… Continue Reading