Jail Call Analysis

1. 4th Amdt – Waiver because of Consent (Banargent, Scheinman, Poyck) 4th Amdt. – Society not ready to recognize prisoner’s expectation of privacy (Scheinman, Richardson) Authentication – 901(b)(1)(Testimony by witness with knowledge); 901(b)(3) (comparison by trier of fact-Voice exemplar / Williams) /, 901(b)(4)(appearance, substance, contents), 901(b)(5)(Voice Identification), 901(b)(6)(# assigned to Defendant + other circumstances) Defendant’s Statements – 801(e)(2)(A) (Admission by a Party Opponent / Trevino), 803(24)(Statement against Interest), 801(e)(2)(B)(Adopted Admission) Best Evidence Rule – 1001(c)(Falcetta videotaped copy is like a print from a negative); 1003(no question raised as to the authenticity) 403, 404(b) (Relevance, character evidence) Publish (Garrett & Farrell) Jail Call Analysis

2. 104(a) – Preliminary questions of admissibility shall be determined by the court. 104(b) – When relevancy depends on a fact, the court shall admit it upon or subject to the introduction sufficient to support a finding of the fulfillment of that fact Authentication –901(b)(4)(appearance, substance, contents / Druery); 901(b)(1)(Testimony by witness with knowledge); 901(b)(2)(Non-expert opinion on handwriting) Defendant’s Statements – 801(e)(2)(A) (Admission by a Party Opponent / Trevino), 803(24)(Statement against Interest / Wood) Best Evidence Rule – 1004 – original held by opponent (“…original is mailed as usual…”) Druery: Do these distinctive characteristics (901(b)(4)) satisfy the court (104(a)) that a reasonable juror could conclude (104(b)) that the letter was authored by the defendant (i.e., what the proponent says (901(a)) Mail Analysis

3. 801(e)(2)(E) – intent to induce another to deal with co-conspirators, future strategies, identifying roles (Byrd) 803(24) – So far subjecting the speaker to criminal liability that a reasonable person wouldn’t say it unless it was true (Wood) YES Don’t worry about Crawford Will the Co-∆ Testify? NO YES Testimonial? (Woods, Crawford)Statements between co-conspirator during the conspiracy are not testimonial. Can’t Admit NO 403, 404(b) (Relevance, character evidence) 608: truthful character if it’s been attacked 609: Impeachment by Conviction 806 – Impeach Declarant’s Credibility 613(a): Prior Inconsistent Statement 613(b): Examining Bias or Interest Co-Defendant Statement Analysis Beware Rehabilitation! 405(a), prior consistent stmt.,

4. 803(4): Medical Diagnosis (Garcia); 803(1): Present Sense Impression (Fischer) reflexive product 803(2):Excited utterance, time for reflection (Apolinar); 803(3) Dying Declaration (Thomas) – impending death YES Yes – don’t worry about Crawford Will the Declarant Testify? NO Giles: Only 1) Dying Declaration or 2) Forfeiture by Wrong-doing: intent to prevent YES Testimonial? (Vinson)To a cop: Would a reasonable person appreciate the fact that the police officer was collecting information for prosecution? To a non-cop (Woods) Casual Acquaintances Doctrine. NO 403, 404(b) (Relevance, character evidence) 608: truthful character if it’s been attacked 609: Impeachment by Conviction 806 – Impeach Declarant’s Credibility 613(a): Prior Inconsistent Statement 613(b): Examining Bias or Interest Hearsay Analysis Beware Rehabilitation! 405(a), prior consistent stmt.,

5. 612: Writing Used to Refresh Memory: wirtings looked at by witnesses either while or before testifying shall be given to the other side. Will this refresh your memory? • 803(5): Past Recollection Recorded: • W once had knowledge; • W made writing at or near the time • W can’t remember now • W now vouches for accuracy • (Johnson) • 613(a): Prior Inconsistent Statement: • Substance, • time, place, and person, • opportunity to explain. • **Extrinsic evidence admissible if and only if person denies making statement** 801(e)(1)(B): Prior Consistent Statement: offered to rebut an express or implied charge of recent fabrication or improper influence. Hammons: would a reasonable judge, considering all phases of trial, and demeanor of cross examiner, conclude the W has been challenged for Recent Fabrication or improper influence Writings Review