Here's the link: http://www.tdcaadistribution.com/newsletter/newsletter.php?10476

What do you think about the dissent's argument in Landers, that the defendant's 5th amendment rights were violated because she had to testify about what the DA knew about her? As long she wasn't forced to incriminate herself in regards to the current charge, I don't think the dissent's argument really holds up.

Ok, I'm dusting an old one off, I know, but the more I think about it, the more I hate De La Paz. The commentary points out how little reasoning there is, but what about the basic appellate rule that a trial court's ruling should be upheld if it is correct for any reason? Here, the trial court could easily look at what was offered and and have made the same determination that the COA did. Did this case overrule Romero and its numerous descendants? That is a pretty fundamental appellate doctrine that is not even mentioned.

[This message was edited by JohnR on 07-24-08 at .]

I'm not nearly as dynamic a thinker as you. Personally, I always wondered why establishing the predicate for statements for purposes of medical diagnosis didn't at least provide some support for the proposition that the statements weren't taken for purposes of future litigation. I guess the distinction would be that the "testimonial" inquiry focuses on the person taking the statement while the "statements for purposes of medical diagnosis" inquiry focuses on the person making the statement. However, if determining the identity of the attacker is a necessary question for proper treatment in the future, then why doesn't that simultaneously cut against the argument that the person collected the information for future litigation?

[This message was edited by R.J. MacReady on 07-15-08 at .]

Talking to your doctor is not like talking to your lawyer or an investigator. You talk to your doctor because you need treatment, and the things you tell him are to get you treatment. Thus, the objective observers should not reasonably believe those statements will be used in court.

Of course, contemporary observers probably would not have reasonably believed that Lord Cobham's private letters would be used in Star Chamber, either, though they might have believed his statements taken under torture would be. Who knows? I know little of the actual history there.

Identity of the person who caused injury might be relevant to type of treatment necessary, STD, pyschological. Plus, a medical person who learns that daddy is the one that caused little Janey's pregnancy might have a medical duty to act on that as well as a legal one.

[This message was edited by JohnR on 07-16-08 at .]

I'm wondering if we're heading for a split-the-baby type of decision. Yes nurses. No social workers. (Assuming, of course, that it's approached from result backwards.) Though any legal duties that might spring from discovering pregnancy could nudge towards a "testimonial" holding across the board. Guess I'd better brush up on my CPS law.

[This message was edited by R.J. MacReady on 07-16-08 at .]

If the prosecutor responds to a hearsay and Crawford objection with "not offered for the truth of the matter asserted" is that responsive to both claims or just the hearsay claim?

Just the hearsay, I'd think. Crawford doesn't have anything to do with whether it's offered for the truth, just whether it's testimonial and whether you can confront the speaker.

Arguably, that only responds to hearsay because it is a component of the general exclusion of hearsay evidence. Crawford and Davis (or is it Hammond?) don't talk about how you are using evidence, only that "testimonial" out-of-court statements are admissible only when the declarant is unavailable and the defendant had the opportunity to confront and cross-examine. If only some 15th century legal commentator had attempted to reconcile the then-nascent ideas of hearsay versus confrontation!

[This message was edited by JohnR on 07-22-08 at .]

But, devil's advocate, if it's not offered for the truth, what purpose does confrontation serve?

Heavily Revised--sorry to bollix the thread
As pointed out over on the Tex Crim App blog, link,
Crawford does not apply when a testimonial statement is not offered for the truth of the matter asserted. See Tennessee v. Street, 471 U.S. 409 (1985). That case is interesting in that it upheld the admission of a co-defendant's custodial confession (and other testimony about the confession) in order to rebut a claim that the defendant's confession was coerced and that he simply copied his codefendant's confession that was shown to him.

So, I guess skill at identifying "not for the truth" uses takes on a new importance. I stick with my statement that examples of "not for the truth" are hard to create. The ones below are good, but they aren't testimonial.

[This message was edited by JohnR on 07-23-08 at .]

So, does the Lizard Man hang out at the stream or the pond?

And JAS knows that Lord Merillat and Sir John would not be fishing in "the Pond" anytime soon, for there is a hurracane a-brewin'.

What are you all talking about?

JAS

What if you're offering a videotape of Sir Walter's reaction to the purported statements of Lord Cobham?

Sorry, Gretchen, no teachers allowed. You're in contempt. Off with your head!

Well, they didn't have videotape back then. Facial expressions of the defendant aren't hearsay, and he can confront himself. You might be able to exclude an "Oh Sh*t" expression under 403 or 402, though.

quote:

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Originally posted by JohnR:
Examples of "not for the truth" are hard to come up with.

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I respectfully disagree. In many instances, the truth of the statement is immaterial; what you are showing is that the statement was made. For example, when you offer a statement to show that the declarant was lying--Witness B testifies, "John told me he was in Arizona at the time of the crime." Witness A has already testified that John was in Texas and he has the photos to prove it. Witness B's statement is offered as a lie, to show that John was trying to mislead Witness B.

Another example: when the making of the statement has relevance whether true or not. John is claiming self-defense. He testifies that he only killed Bob because Steve yelled, "Bob has a knife!" Whether Bob had a knife or not, if this statement put John in reasonable fear, it supports his defense.

Of course, neither of those examples is a testimonial statement, necessarily, although the first one might be. But the bottom line is, are you offering the statement because the statement is true, or only because the witness heard the statement being made? Assuming the latter, neither hearsay nor Crawford would apply, in my opinion, because the only important factor is whether the statement was made or not, which can be established by cross-examination of the witness on the stand.

The question with Lord Cobham would be whether or not the reason for Sir Walter's arrest was relevant. If so, is the evidence more prejudicial than probative (assuming we take the Crown's word for it that they are offering the statement for reasons other than the truth of the matter asserted).

Hard for me, then. I guess the problem I always have when trying to find an example for "truth of the matter" is that often some other exception applies. The comment about the relevance analysis shows why you may not see more examples regarding "truth of the matter"--many things that are not offered for the truth of the matter are not relevant and probably excluded. Good examples.

[This message was edited by JohnR on 07-22-08 at .]

Is De La Paz a trade off for Reyna's requirement that the defense object under both hearsay and Crawford? If the defense has to raise both objections, we have to respond to both?

quote:

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Sorry, Gretchen, no teachers allowed. You're in contempt. Off with your head!

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Ouch, man, you wound me. *sniff*