Key Evidence Cases Resource Page

About The Key Evidence Cases Resource Page

Supreme Court seal The Key Evidence Cases Resource Page highlights noteworthy United States Supreme Court cases involving the Federal Rules of Evidence or the Constitution or relating to evidence issues.

  • The Federal Evidence Review has identified more than 130 key evidence cases decided by the United States Supreme Court. The cases are listed alphabetically below; many of the opinions are available by clicking on the case name. Since 1990, where possible, the official reports are provided. For earlier opinions, page numbers to the official reports are indicated in brackets where possible.
  • The case may be located by the case name in the first column; the evidence issue or applicable rule of evidence is noted in the second column. The third column summarizes the evidentiary holding of the case. Where possible, the page of the holding is noted in brackets. Further searches concerning these noteworthy cases can be made on the Search Page to locate other cases applying these key evidence cases.
  • The Key Evidence Cases list continues to expand. If you have other Key Evidence Cases to suggest, please let us know by using the Contact Page.

Key Evidence Cases Resource Page

Jump to a letter (first name of the case): A B C D E F G H I J K L M N O P Q R S T U V W X Y Z

CaseRuleHolding / Significance
Anderson v. United States, 417 U.S. 211 (1974) FRE 801(d)(2)(E)
(Co-Conspirator Statements)
  • Under the second foundational requirement for FRE 801(d)(2)(E), the co-conspirator statement must also be made during the course of the conspiracy. [218-19]

  • “The ongoing conspiracy requirement is … inapplicable to evidence, such as that of acts of alleged conspirators, which would not otherwise be hearsay” when offered “to prove the existence of the conspiracy.” [219]

  • Statements were non-hearsay when offered “to prove that the statements were made so as to establish a foundation for later showing, through other admissible evidence, that they were false.” [220 (footnotes omitted)]
Apprendi v. New Jersey, 530 U.S. 466 (2000)Sixth Amendment (Right To Notice and Jury Trial)

Fifth Amendment
(Due Process Clause)

Fourteenth Amendment
(Due Process Clause)

  • Question Presented: "[W]hether the Due Process Clause of the Fourteenth Amendment requires that a factual determination authorizing an increase in the maximum prison sentence for an offense from 10 to 20 years be made by a jury on the basis of proof beyond a reasonable doubt." [469]
  • Holding: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” [490]
Austin v. United States, 509 U.S. 602 (1993)Sixth Amendment (Confrontation Clause)
  • “Sixth Amendment's Confrontation Clause does not” apply in civil forfeiture proceedings [608 n.4 (citing United States v. Zucker, 161 U.S. 475, 481 (1896) (“The sixth amendment relates to a prosecution of an accused person which is technically criminal in its nature.… So the clause … has no reference to any proceeding … which is not directly against a person who is accused, and upon whom a fine or imprisonment, or both, may be imposed.”))]
Ballew v. United States, 160 U.S. 187 (1895)FRE 803(8)
(Public Records and Reports)
  • “The records of the Pension Office constitute part of the records of the Department of the Interior, of which Executive Department the Pension Office is but a constituent. We think that the certificates in question, taken together, were a substantial compliance with the statute.” [192]

  • See also ACN FRE 803(8) (1972) (listing the case as "illustrating the admissibility of records of the office's or agency's own activities are numerous").
Barber v. Page, 390 U.S. 719 (1968)Sixth Amendment (Confrontation Clause)
  • Question Presented: "[W]hether petitioner was deprived of his Sixth and Fourteenth Amendment right to be confronted with the witnesses against him at his trial in Oklahoma for armed robbery, at which the principal evidence against him consisted of the reading of a transcript of the preliminary hearing testimony of a witness who at the time of trial was incarcerated in a federal prison in Texas" [720]

  • Reversing where government failed to show unavailability of witness: "We start with the fact that the State made absolutely no effort to obtain the presence of Woods at trial other than to ascertain that he was in a federal prison outside Oklahoma." [723]

  • Holding: "The right to confrontation is basically a trial right. It includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness. A preliminary hearing is ordinarily a much less searching exploration into the merits of a case than a trial, simply because its function is the more limited one of determining whether probable cause exists to hold the accused for trial. While there may be some justification for holding that the opportunity for cross-examination of a witness at a preliminary hearing satisfies the demands of the confrontation clause where the witness is shown to be actually unavailable, this is not, as we have pointed out, such a case." [725-26 (footnote omitted)]
Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988)FRE 803(8)
(Public Records and Reports)

see also FRE 106
(Remainder of or Related Writings or Recorded Statements)

FRE 401
(Definition of "Relevant Evidence")
  • Resolving a "longstanding conflict" and holding that public investigative reports under FRE 803(8)(C) "are not inadmissible merely because they state a conclusion or opinion." [170]

  • "As long as the conclusion is based on a factual investigation and satisfies the Rule's trustworthiness requirement, it should be admissible along with other portions of the report." [170 (footnote omitted)]

  • On a separate issue, jury "was given a distorted and prejudicial impression" of a letter where trial court restricted cross-examination concerning the letter and the jury was denied "a more complete picture of" the communication. [170] Because the completeness-information was relevant under FRE 401, it was unnecessary to decide whether FRE 106, codifying the rule of completeness, applied. [172]
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007)FRE 201
(Judicial Notice of Adjudicative Facts)
  • In civil antitrust class action complaint attributing a partial statement to a chief executive officer about competiting with other companies, noting that "the District Court was entitled to take notice of the full contents of the published articles referenced in the complaint, from which the truncated quotations were drawn. See Fed. Rule Evid. 201." [n.13]
Bellis v. United States, 417 U.S. 85 (1974)Fifth Amendment
(Privilege Against Self-Incrimination)

  • Question Presented: "[W]hether a partner in a small law firm may invoke his personal privilege against self-incrimination to justify his refusal to comply with a subpoena requiring production of the partnership's financial records." [85]

  • Holding: "[P]etitioner's possession of the partnership's financial records in what can be fairly said to be a representative capacity compels our holding that his personal privilege against compulsory self-incrimination is inapplicable." [101]
Bourjaily v. United States, 483 U.S. 171 (1987)

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Sixth Amendment (Confrontation Clause)

FRE 801(d)(2)(E)
(Co-Conspirator Statements)
  • Holding: Where the requirements of FRE 801(d)(2)(E) are satisfied, no Confrontation Clause issues are raised

  • Clarifying that the proponent holds the burden to show the admissibility of the FRE 801(d)(2)(E) evidence by a preponderance of the evidence [182-84]
Boykin v. Alabama, 395 U.S. 238 (1969)Fifth Amendment
(Privilege Against Self-Incrimination)

Sixth Amendment (Confrontation Clause; Right To Jury Trial)

Fourteenth Amendment
(Due Process Clause)

  • A valid plea of conviction requires "an affirmative showing that it was intelligent and voluntary" and includes an advisement that in pleading guilty the defendant is waiving certain consitutional rights including "the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth"; "the right to trial by jury"; and "the right to confront one's accusers." [242-43]
Brady v. Maryland, 373 U.S. 83 (1963)Fourteenth Amendment
(Due Process Clause)
  • In state first degree murder trial, the government failed to provide a confession by another to the homicide after a request was made to examine the witnesses statements. The confession surfaced after the conviction was affirmed.

  • Holding: "[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." [87]
Braswell v. United States, 487 U.S. 99 (1988)Fifth Amendment
(Privilege Against Self-Incrimination)

  • Question Presented: "[W]hether the custodian of corporate records may resist a subpoena for such records on the ground that the act of production would incriminate him in violation of the Fifth Amendment." [100]

  • Holding: "Although a corporate custodian is not entitled to resist a subpoena on the ground that his act of production will be personally incriminating, we do think certain consequences flow from the fact that the custodian's act of production is one in his representative rather than personal capacity. Because the custodian acts as a representative, the act is deemed one of the corporation and not the individual." [117-18]
Bruton v. United States, 391 U.S. 123 (1968)

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Sixth Amendment (Confrontation Clause)
  • Holding that a defendant’s Confrontation Clause rights were violated when a non-testifying codefendant’s confession incriminating the defendant is introduced at their joint trial, despite the judge’s jury instruction that the confession was only to be considered against the codefendant. [126]
Bullcoming v. New Mexico, 564 U.S. __, 131 S.Ct. 2705 (June 23, 2011)Sixth Amendment (Confrontation Clause)
  • Holding that the surrogate testimony of a second forensic analyst, who did not observe or review the original blood alcohol content results, was inadmissible; specifically, the defendant has the right "to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist."

  • Further background information on the case is available on the Bullcoming v. New Mexico Resource Page

  • See also Crawford v. Washington, 541 U.S. 36 (2004)
California v. Green, 399 U.S. 149 (1970)Sixth Amendment (Confrontation Clause)
  • "[T]he Confrontation Clause is not violated by admitting a declarant's out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination." [158]

  • "[T]he Confrontation Clause does not require excluding from evidence the prior statements of a witness who concedes making the statements, and who may be asked to defend or otherwise explain the inconsistency between his prior and his present version of the events in question, thus opening himself to full cross-examination at trial as to both stories." [164]

  • The preliminary hearing testimony of a witness who was subject to cross-examination is admissible atrial even if the witness is unavailable or suffers an "apparent lapse of memory". [165, 170]

  • See also Crawford v. Washington, 541 U.S. 36, 60 n.9 (2004) ("[W]e reiterate that, when the declarant appears for crossexamination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. See California v. Green, 399 U.S. 149, 162 (1970).")
Carter v. Kentucky, 450 U.S. 288 (1981)Fifth Amendment
(Privilege Against Self-Incrimination)

  • Question Presented: Whether "a defendant, upon request, has a right to such an instruction under the Fifth and Fourteenth Amendments of the Constitution" [289-90]

  • The issue had previously been noted and reserved in Griffin v. California, 380 U.S. 609, 615 n.6 (1965) ("We reserve decision on whether an accused can require, as in Bruno v. United States, 308 U. S. 287, that the jury be instructed that his silence must be disregarded.") and Lakeside v. Oregon, 435 U.S. 333, 337-38 (1978) (noting open issue)

  • Holding: "[A] state trial judge has the constitutional obligation, upon proper request, to minimize the danger that the jury will give evidentiary weight to a defendant's failure to testify.” [305]
Chapman v. California, 386 U.S. 18 (1967)Harmless Error Standard
  • Holding that "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt" [24]

  • See also Neder v. United States, 527 U.S. 1, 7, 15 (1999) (under the harmless beyond a reasonable doubt standard, the court reviews "whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained") (quotations omitted)

  • See also Delaware v. Van Arsdale, 475 U.S. 673, 684 (1986) (remanding to Delaware Supreme Court to determine whether Confrontation Clause error was harmless beyond a reasonable doubt)

  • See also ACN FRE 103 (1972) (noting that "[t]he status of constitutional error as harmless or not is treated in Chapman v. California")
Chesapeake & Delaware Canal Co. v. United States, 250 U.S. 123 (1919)FRE 803(8)
(Public Records and Reports)
  • In government action to recover dividends, affirming the admission of Department of the Treasury records "show[ing] all of the miscellaneous receipts and disbursements of the Government" and indicating "the receipt by the Government of fourteen dividends paid" before the controversy and none afterwards. [127-28]

  • Holding: "[T]heir character as public records required by law to be kept, the official character of their contents entered under the sanction of public duty, the obvious necessity for regular contemporaneous entries in them and the reduction to a minimum of motive on the part of public officials and employees to either make false entries or to omit proper ones, all unite to make these books admissible as unusually trustworthy sources of evidence." [128-29]

  • See also ACN FRE 803(8) (1972) (noting the "[j]ustification for the [public records] exception is the assumption that a public official will perform his duty properly and the unlikelihood that he will remember details independently of the record") (citing Chesapeake & Delaware Canal Co. v. United States and listing the case as "illustrating the admissibility of records of the office's or agency's own activities are numerous").
Comcast v. Behrend, 569 U.S. _, 133 S.Ct. 1426, 185 L. Ed. 2d 515 (March 27, 2013) (No. 11-864)FRE 702
(Testimony by Experts)
  • Question Presented: Majority clarifies that the case presented the question whether “certification was improper because respondents had failed to establish that damages could be measured on a class wide basis” [n.4]

  • Holding: Holding that trial courts must employ a “rigorous analysis” to determine whether class action plaintiffs have shown “that damages could be measured on a class wide basis" including adequate proof about a common methodology for measuring damages. The proposed class produced only a general theory, based on expert testimony, about alleged monopolistic overcharges. Absent any more detailed information on the impact of the specific antitrust allegation in the lawsuit on the proposed class of plaintiffs, sufficient commonality was not shown for purposes of class certification.
  • Court notes that “a model purporting to serve as evidence of damages in this class action must measure only those damages attributable to that theory. If the model does not even attempt to do that, it cannot possibly establish that damages are susceptible of measurement across the entire class for purposes of [Fed. R. Civ. P.] Rule 23(b)(3).”
  • See also Blog Post: Supreme Court Watch: Comcast v. Behrend: Clarifying The Preliminary Evidentiary Showing For Class Certification
  • See also Other Blog Posts On Comcast v. Behrend
Costello v. United States, 350 U.S. 359 (1956)Fifth Amendment
(Grand Jury Clause)

FRE 801(c)
  • Question Presented: "May a defendant be required to stand trial and a conviction be sustained where only hearsay evidence was presented to the grand jury which indicated him?" [359]

  • Holding: "This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more." [363 (footnote)]
Coy v. Iowa, 487 U.S. 1012 (1988)

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Sixth Amendment (Confrontation Clause)
  • Confrontation Clause provides the criminal defendant a right to "confront" face-to-face any witnesses giving evidence against him at trial [1019-20]

  • Use of a screen between defendant and child sexual assault victim during victim's testimony violated defendant's confrontation clause rights because the screen allowed the witness to avoid viewing the defendant during the victim's testimony [1020-22]
Crane v. Kentucky, 476 U.S. 683 (1986)Sixth Amendment (Confrontation Clause or Compulsory Process Clause) (meaningful opportunity to present a complete defense)

Due Process Clause of the Fourteenth Amendment (meaningful opportunity to present a complete defense)

FRE 104(e)
(Preliminary Questions: Evidence Relevant to Weight and Credibility)
  • Legal and Factual Aspects of Confessions: "[T]he circumstances surrounding the taking of a confession can be highly relevant to two separate inquiries, one legal and one factual. The manner in which a statement was extracted is, of course, relevant to the purely legal question of its voluntariness, a question most, but not all, States assign to the trial judge alone to resolve. But the physical and psychological environment that yielded the confession can also be of substantial relevance to the ultimate factual issue of the defendant's guilt or innocence. Confessions, even those that have been found to be voluntary, are not conclusive of guilt. And, as with any other part of the prosecutor's case, a confession may be shown to be 'insufficiently corroborated or otherwise . . . unworthy of belief.' Indeed, stripped of the power to describe to the jury the circumstances that prompted his confession, the defendant is effectively disabled from answering the one question every rational juror needs answered: If the defendant is innocent, why did he previously admit his guilt? Accordingly, regardless of whether the defendant marshaled the same evidence earlier in support of an unsuccessful motion to suppress, and entirely independent of any question of voluntariness, a defendant's case may stand or fall on his ability to convince the jury that the manner in which the confession was obtained casts doubt on its credibility. [¶] This simple insight is reflected in a federal statute, 18 U.S.C. § 3501(a), the Federal Rules of Evidence, Fed. Rule Evid. 104(e), and the statutory and decisional law of virtually every State in the Nation." [688-89 (citations and quotation marks omitted)]

  • Recognizing Right to Present a Complete Defense: "Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense. We break no new ground in observing that an essential component of procedural fairness is an opportunity to be heard. That opportunity would be an empty one if the State were permitted to exclude competent, reliable evidence bearing on the credibility of a confession when such evidence is central to the defendant's claim of innocence. In the absence of any valid state justification, exclusion of this kind of exculpatory evidence deprives a defendant of the basic right to have the prosecutor's case encounter and "survive the crucible of meaningful adversarial testing." [690-91 (citations and quotation marks omitted)]

  • State Evidence Issues: "We acknowledge also our traditional reluctance to impose constitutional constraints on ordinary evidentiary rulings by state trial courts.... Moreover, we have never questioned the power of States to exclude evidence through the application of evidentiary rules that themselves serve the interests of fairness and reliability — even if the defendant would prefer to see that evidence admitted." [689-90]
Crawford v. Washington, 541 U.S. 36 (2004)Sixth Amendment (Confrontation Clause)
  • Landmark Confrontation Clause case holding that "testimonial" statements of an unavailable witness violated the Confrontation Clause unless there was a prior opportunity for cross-examination

  • Leaving open the definition of "testimonial" evidence but noting "testimonial" statements at minimum includes statements made to law enforcement officials engaged "in the production of testimony with an eye toward trial" such as "affidavits, custodial examinations, . . . affidavits, depositions, prior testimony, or confessions." [51, 56 n.7]

  • Supreme Court overturned precedent that had been applied for nearly a quarter of a century, including Ohio v. Roberts, 448 U.S. 56 (1980) (applying "particularized guarantees of trustworthiness" standard to admit statements of an unavailable witness)

  • See also Lead Story: After Crawford v. Washington: Early Observations On the Admissibility of Evidence Under the Confrontation Clause, 1 Fed. Evid. Rev. 83 (Sept. 2004)

  • See also Davis v. Washington, 547 U.S. 813 (2006)
Cruz v. New York, 481 U.S. 186 (1987)Sixth Amendment (Confrontation Clause)
  • “We hold that, where a nontestifying codefendant's confession incriminating the defendant is not directly admissible against the defendant, the Confrontation Clause bars its admission at their joint trial, even if the jury is instructed not to consider it against the defendant, and even if the defendant's own confession is admitted against him.” [193 (citation omitted)]

  • See also Bruton v. United States, 391 U.S. 123 (1968)
Danforth v. Minnesota, 552 U.S. 264, 128 S.Ct. 1029 (2008)FRE 403
(Exclusion of Relevance on Grounds of Prejudice, Confusion, or Waste of Time)

FRE 401
(Definition of "Relevant" Evidence)
  • While Crawford v. Washington, as a new constitutional rule, does not apply retroactively in federal proceedings, state courts are not constrained in adopting broader new criminal rules that apply in state proceedings
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)FRE 702
(Testimony by Experts)
  • FRE 702 imposes a "gatekeeping" role for trial court to admit expert scientific testimony, including that expert evidence is not only relevant, but reliable and assists trier of fact

  • Concluding FRE 702 displaced "general acceptance" to admit expert testimony under Frye v. United States, 293 F. 1013, 1014 (1923)

  • See also Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (extending Daubert to technical and other specialized expert testimony)
Davis v. Alaska, 415 U.S. 308 (1974)Sixth Amendment (Confrontation Clause)
  • Question Presented: "[W]hether the Confrontation Clause requires that a defendant in a criminal case be allowed to impeach the credibility of a prosecution witness by cross-examination directed at possible bias deriving from the witness' probationary status as a juvenile delinquent when such an impeachment would conflict with a State's asserted interest in preserving the confidentiality of juvenile adjudications of delinquency." [309]

  • "Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness' story to test the witness' perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i. e., discredit, the witness. One way of discrediting the witness is to introduce evidence of a prior criminal conviction of that witness. By so doing the cross-examiner intends to afford the jury a basis to infer that the witness' character is such that he would be less likely than the average trustworthy citizen to be truthful in his testimony. The introduction of evidence of a prior crime is thus a general attack on the credibility of the witness. A more particular attack on the witness' credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand." [316]

  • Holding: "On the basis of the limited cross-examination that was permitted, the jury might well have thought that defense counsel was engaged in a speculative and baseless line of attack on the credibility of an apparently blameless witness or, as the prosecutor's objection put it, a 'rehash' of prior cross-examination. On these facts it seems clear to us that to make any such inquiry effective, defense counsel should have been permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness." [318]
Davis v. Washington, 547 U.S. 813 (2006) Sixth Amendment (Confrontation Clause)
  • Victim's response to 911 operator's interrogation was not "testimonial" and not subject to Confrontation Clause because the statement was made under circumstances that objectively indicated an ongoing emergency and the primary purpose of the interrogation was to enable police to assist in meeting that emergency [823]

  • Victim's written statements in affidavit given to police officer were testimonial and excludable under the Confrontation Clause because no emergency existed at the time of the statement and the primary purpose of the interrogation was to investigate a past crime [830]

  • A defendant who obtains absence of a witness by wrongdoing forfeits Confrontation Clause rights, noting FRE 804(b)(6) (Forfeiture by Wrongdoing) [833]

  • See also Crawford v. Washington, 541 U.S. 36 (2004)
Delaware v. Fensterer, 474 U.S. 15 (1985) (per curiam)Sixth Amendment (Confrontation Clause)
  • "This Court's Confrontation Clause cases fall into two broad categories: cases involving the admission of out-of-court statements and cases involving restrictions imposed by law or by the trial court on the scope of cross-examination." [140]

  • In considering limitations placed on cross-examination, “the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities [such as forgetfulness, confusion, or evasion] through cross-examination, thereby calling to the attention of the fact finder the reasons for giving scant weight to the witness' testimony.” [22]

  • Confrontation Clause was not violated by expert witness who could not recall the basis for his opinion
Delaware v. Van Arsdale, 475 U.S. 673 (1986)Sixth Amendment (Confrontation Clause)

Harmless Error Standard
  • Holding: "[W]e hold that the constitutionally improper denial of a defendant's opportunity to impeach a witness for bias, like other Confrontation Clause errors, is subject to Chapman [v. California, 386 U.S. 18 (1967)] harmless-error analysis." [684]

  • "[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Case was remanded for a determination whether the error was harmless beyond a reasonable doubt. [679]

  • However, the the trial court violated the Confrontation Clause by excluding "all inquiry into the possibility that" a government witness "would be biased as a result of the State's dismissal of his pending public drunkenness charge." [679 (emphasis in original)]

  • Harmless Error Analysis: "The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case." [684]
Dick v. New York Life Ins. Co., 359 U.S. 437 (1959)FRE 301
(Presumptions in Civil Actions Generally)
  • Affirming presumption of accidental death under state law which "place[d] on the insurer the burden of proving that death resulted from suicide." [446 (citations omitted)]

  • "Proof of coverage and of death by gunshot wound shifts the burden to the insurer to establish that the death of the insured was due to his suicide. Under North Dakota law, this presumption does not disappear once the insurer presents any evidence of suicide. Ibid. Rather, the presumed fact (accidental death) continues and a plaintiff is entitled to affirmative instructions to the jury concerning its existence and weight." [443 (citation omitted)]

  • See also ACN FRE 301 (1972) ("Any doubt as to the constitutional permissibility of a presumption imposing a burden of persuasion of the non-existence of the presumed fact in civil cases is laid at rest by Dick v. New York Life Ins. Co., 359 U.S. 437, 79 S.Ct. 921, 3 L.Ed.2d 935 (1959). The Court unhesitatingly applied the North Dakota rule that the presumption against suicide imposed on defendant the burden of proving that the death of insured, under an accidental death clause, was due to suicide.")
Doe v. United States, 487 U.S. 201 (1988) (“Doe II”)

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Fifth Amendment (Privilege Against Self-Incrimination)
  • Question Presented: "[W]hether a court order compelling a target of a grand jury investigation to authorize foreign banks to disclose records of his accounts, without identifying those documents or acknowledging their existence, violates the target's Fifth Amendment privilege against self-incrimination." [202]

  • Completion of a consent directive was not testimonial under the Fifth Amendment "because neither the form, nor its execution, communicates any factual assertions, implicit or explicit, or conveys any information to the Government." [215]
Dowling v. United States, 493 U.S. 342 (1990)FRE 404(b)
(Other Crimes, Wrongs, Or Acts)
  • Evidence concerning robbery, introduced at first trial and resulting in an acquittal, was admissible under FRE 404(b) in subsequent prosecution for bank robbery and did not violate the Double Jeopardy Clause or the Due Process Clause [348-49]

  • Noting “the prior acquittal did not determine an ultimate issue in the present case” and the relevance of evidence offered under FRE 404(b) was governed by a lower standard of proof than required for conviction
Doyle v. Ohio, 426 U.S. 610 (1976)Fourteenth Amendment
(Due Process Clause)
  • "[H]old[ing] that the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment" [619]
Edwards v. Arizona, 451 U.S. 477 (1981)Fifth Amendment
(Privilege Against Self-Incrimination)

Fourteenth Amendment
(Due Process Clause)
  • Question Presented: "whether the Fifth, Sixth, and Fourteenth Amendments require suppression of a post-arrest confession, which was obtained after Edwards had invoked his right to consult counsel before further interrogation" [478]

  • "[W]e now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights." [484]

  • "We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." [484-85]

  • Because the right to counsel applies to custodial interrogation, "nothing in the Fifth and Fourteenth Amendments would prohibit the police from merely listening to [an individual's] voluntary, volunteered statements and using them against him at the trial." [485]

  • As a result of the disposition, declining to "decide Edwards' claim that the State deprived him of his right to counsel under the Sixth and Fourteenth Amendments...." [480 n.7]
Estelle v. McGuire, 502 U.S. 62 (1991)Fourteenth Amendment
(Due Process Clause)
  • Federal habeas review of a state court second-degree murder conviction was not available to consider a challenge to the admission of prior injury evidence to establish battered child syndrome under state law absent a violaiton of a constitutional right. [67-68]

  • "In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." [68]

  • "The evidence of battered child syndrome was relevant to show intent, and nothing in the Due Process Clause of the Fourteenth Amendment requires the State to refrain from introducing relevant evidence simply because the defense chooses not to contest the point." [70]

  • See also Crane v. Kentucky, 476 U.S. 683, 689 (1986) ("We acknowledge also our traditional reluctance to impose constitutional constraints on ordinary evidentiary rulings by state trial courts.... Moreover, we have never questioned the power of States to exclude evidence through the application of evidentiary rules that themselves serve the interests of fairness and reliability — even if the defendant would prefer to see that evidence admitted.").
Faretta v. California, 422 U.S. 806 (1975)Sixth Amendment (Right To the Assistance of Counsel)

Fourteenth Amendment
(Due Process Clause)

  • Question Presented: "[W]hether a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so. Stated another way, the question is whether a State may constitutionally hale a person into its criminal courts and there force a lawyer upon him, even when he insists that he wants to conduct his own defense." [807]
  • Holding: “[I]n order to represent himself, the accused must 'knowingly and intelligently' forgo those relinquished benefits. Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.'" [835 (citations omitted)]
Fisher v. United States, 425 U.S. 391 (1976)Fifth Amendment
(Privilege Against Self-Incrimination)

FRE 501
(Attorney-Client Privilege)
  • Questions Presented: "[W]hether a summons directing an attorney to produce documents delivered to him by his client in connection with the attorney-client relationship is enforceable over claims that the documents were constitutionally immune from summons in the hands of the client and retained that immunity in the hands of the attorney." [393]

  • Holding: "The taxpayers' Fifth Amendment privilege is therefore not violated by enforcement of the summonses directed toward their attorneys. This is true whether or not the Amendment would have barred a subpoena directing the taxpayer to produce the documents while they were in his hands." [397]

  • “Since each taxpayer transferred possession of the documents in question from himself to his attorney in order to obtain legal assistance in the tax investigations in question, the papers, if unobtainable by summons from the client, are unobtainable by summons directed to the attorney by reason of the attorney-client privilege. We accordingly proceed to the question whether the documents could have been obtained by summons addressed to the taxpayer while the documents were in his possession. The only bar to enforcement of such summons asserted by the parties or the courts below is the Fifth Amendment's privilege against self-incrimination.” [405]

  • On the facts, the act of producing the records did not implicate the Fifth Amendment since the government was not “relying on the truth telling of the taxpayer.” [411 (internal quotation marks omitted)]

  • Recognizing the “Foregone Conclusion” Doctrine: “It is doubtful that implicitly admitting the existence and possession of the papers rises to the level of testimony within the protection of the Fifth Amendment . . . . Surely the Government is in no way relying on the ‘truth telling’ of the taxpayer to prove the existence of or his access to the documents. The existence and location of the papers are a foregone conclusion and the taxpayer adds little or nothing to the sum total of the Government’s information by conceding that he in fact has the papers. Under these circumstances by enforcement of the summons ‘no constitutional rights are touched. The question is not of testimony but of surrender.’” [411 (quoting In re Harris, 221 U.S. 274, 279 (1911))]

  • The purpose of the attorney-client privilege is "to encourage clients to make full disclosure to their attorneys." [403]
General Electric Co. v. Joiner, 522 U.S. 136 (1997)FRE 702
(Testimony by Experts)
  • Holding "that abuse of discretion is the proper standard by which to review a district court's decision to admit or exclude scientific evidence." [141]
Giglio v. United States, 405 U.S. 150 (1972)Fourteenth Amendment
(Due Process Clause)

  • In prosecution for passing forged money orders, the government failure to disclose a promise of immunity in exchange for testimony from a government witness violated Brady.

  • Exculpatory evidence includes "evidence affecting" witness "credibility". “When the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls within this general rule.” [154 (quotation marks and citation omitted)]

  • A new trial is required when the non-disclosed evidence is determined to be material.
Gilbert v. California, 388 U.S. 263 (1967)Fifth Amendment
(Privilege Against Self-Incrimination)

Sixth Amendment
(Right to Counsel)
  • The taking of handwriting exemplars did not violate the Fifth Amendment privilege against self-incrimination. “A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection. No claim is made that the content of the exemplars was testimonial or communicative matter.” [266-67]

  • “The admission in-court identifications without first determining that they were not tainted by the illegal lineup but were of independent origin was constitutional error.” [272]
Giles v. California, 554 U.S. 353, 128 S.Ct. 2678 (2008)Sixth Amendment (Confrontation Clause)
  • The forfeiture by wrongdoing exception to the Confrontation Clause requires the government to show that "the defendant intended to prevent a witness from testifying"

  • Case was remanded to apply appropriate standard
Goldman v. United States, 316 U.S. 129 (1942)FRE 612

(Writing Used to Refresh a Witness’s Memory)
  • Considering the discretion of the court on whether to compel production of "the notes and memoranda made by the agents during the investigation" after the agents "admitted they had refreshed their recollection from these papers prior to testifying." [132]

  • "We think it the better rule that where a witness does not use his notes or memoranda in court, a party has no absolute right to have them produced and to inspect them. Where, as here, they are not only the witness' notes but are also part of the Government's files, a large discretion must be allowed the trial judge." [132]

  • See also ACN FRE 612 (citing House Report No. 93-650 (House Committee on the Judiciary — 1974) ("The Committee amended the Rule so as still to require the production of writings used by a witness while testifying, but to render the production of writings used by a witness to refresh his memory before testifying discretionary with the court in the interests of justice, as is the case under existing federal law.") (citing Goldman v. United States, 316 U.S. 129 (1942))
Gray v. Maryland, 523 U.S. 185 (1998) Sixth Amendment (Confrontation Clause)
  • Redaction of co-defendant’s confession by replacing a proper name with a blank space or the word "deleted" violated the Bruton rule as the jury could conclude the redactions refer to the defendant
Griffin v. California, 380 U.S. 609 (1965)Fifth Amendment
(Privilege Against Self-Incrimination)

Fourteenth Amendment
(Due Process Clause)
  • Holding: "We ... hold that the Fifth Amendment, in its direct application to the Federal Government, and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused's silence [at trial] or instructions by the court that such silence is evidence of guilt." [615 (footnote omitted)]
Harris v. New York, 401 U.S. 222 (1971)Exclusionary Rule

Fourth Amendment (Unreasonable Search and Seizure)

Fourteenth Amendment (Due Process Clause)

  • Question Presented: Whether "a statement made by him to police under circumstances rendering it inadmissible to establish the prosecution’s case in chief under Miranda v. Arizona, 384 U.S. 436 (1966), may not be used to impeach his credibility." [222]

  • "Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process. Had inconsistent statements been made by the accused to some third person, it could hardly be contended that the conflict could not be laid before the jury by way of cross-examination and impeachment." [225-26 (footnotes omitted)]

  • Holding: The "petitioner’s credibility was appropriately impeached by use of his earlier conflicting statements." [226]

  • See also ACN FRE 104 (1972) (noting FRE 104(d) "does not address itself to questions of the subsequent use of testimony given by an accused at a hearing on a preliminary matter") (citing, inter alia, Harris v. New York)
Hickman v. Taylor, 329 U.S. 495 (1947)Work Product Doctrine
  • A common companion to attorney-client privilege is the work product doctrine which safeguards “[m]aterials obtained or prepared by an adversary’s counsel with an eye toward litigation.” [511]

  • See also FED. R. CIV. P. 26(b)(3) (work product rule: noting “the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation”)
Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177 (2004)Fifth Amendment (Privilege Against Self-Incrimination)
  • Arrest and conviction for refusing to provide identity during a stop pursuant to a state “stop and identify” statute did not violate the Fifth Amendment since "disclosure of his name presented no reasonable danger of incrimination." [189]

  • "In this case petitioner’s refusal to disclose his name was not based on any articulated real and appreciable fear that his name would be used to incriminate him, or that it 'would furnish a link in the chain of evidence needed to prosecute' him." [190 (quoting Hoffman v. United States, 341 U.S. 479, 486 (1951)]

  • "Answering a request to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances." [191]
Holmes v. South Carolina, 547 U.S. 319 (2006)Sixth Amendment (Confrontation Clause or Compulsory Process Clause) (meaningful opportunity to present a complete defense)

Due Process Clause of the Fourteenth Amendment (meaningful opportunity to present a complete defense)

FRE 403
(Exclusion of Relevance on Grounds of Prejudice, Confusion, or Waste of Time)
  • Evidence rule barring the defense from introducing proof of third-party guilt on the basis of the strength of the government’s case “violates a criminal defendant’s right to have ‘a meaningful opportunity to present a complete defense.’” [331 (other citation omitted)]

  • Also noting: “While the Constitution thus prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury. See, e.g., Fed. Rule Evid. 403.” [326 (other citations omitted)]
Holt v. United States, 218 U.S. 245 (1910)Fifth Amendment
(Privilege Against Self-Incrimination)

  • The wearing of particular clothing is not testimonial under the Fifth Amendment Privilege Against Self-Incrimination.

  • "[T]he prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral 253*253 compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material." [252-53]
Howard v. Perrin, 200 U.S. 71 (1906)FRE 803(8)
(Public Records and Reports)
  • In water rights action, noting that the "certified copy of the records and papers in the General Land Office was competent evidence" and the "certificate of the local land officers was competent to show that on the records of their office were no homestead, preemption or other valid claims, and that the land had not been returned or denominated as swamp or mineral land" [73]

  • See also ACN FRE 803(8) (1972) (listing the case as "illustrating the admissibility of records of the office's or agency's own activities are numerous").
Huddleston v. United States, 485 U.S. 681 (1988)FRE 404(b)
(Other Crimes, Wrongs, Or Acts)

FRE 104(b)
(Relevancy Conditioned On Fact)
  • Resolving a circuit conflict and holding the trial court need not "make a preliminary finding before 'similar act' and other Rule 404(b) evidence is submitted to the jury" and other act "evidence should be admitted if there is sufficient evidence to support a finding by the jury that the defendant committed the similar act." [685]

  • FRE 104(b) allows the trial court to determine whether sufficient evidence has been introduced. Under this rule, "the trial court neither weighs credibility nor makes a finding that the Government has proved the conditional fact by a preponderance of the evidence. The court simply examines all the evidence in the case and decides whether the jury could reasonably find the conditional fact . . . by a preponderance of the evidence." [689-90]
Hunt v. Blackburn, 128 U.S. 464 (1888)

[PDF Cut and Paste Version]
FRE 501
(Attorney-Client Privilege)
  • The attorney-client privilege "rule which places the seal of secrecy upon communications between client and attorney is founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure. But the privilege is that of the client alone, and no rule prohibits the latter from divulging his own secrets; and if the client has voluntarily waived the privilege, it cannot be insisted on to close the mouth of the attorney." [470]

  • Waiver: The privilege may be waived upon challenge to the representation of the party's counsel: "When Mrs. Blackburn entered upon a line of defense which involved what transpired between herself and [her lawyer,] she waived her right to object to his giving his own account of the matter." [470-71]

  • Case is often cited to show that the attorney-client privilege is considered one of the oldest privileges.
Jaffee v. Redmond, 518 U.S. 1 (1996)FRE 501
(Psychotherapist Privilege)
  • Recognizing the psychotherapist-patient privilege

  • Objective: "The psychotherapist privilege serves the public interest by facilitating the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem." [11]

  • Coverage: The psychotherapist privilege "covers confidential communications made to licensed psychiatrists and psychologists" as well as "licensed social workers in the course of psychotherapy." [15]

  • Scope Of Privilege: "We do not doubt that there are situations in which the privilege must give way, for example, if a serious threat of harm to the patient or to others can be averted only by means of a disclosure by the therapist." [18 n.19]

  • Waiver: "Like other testimonial privileges, the patient may of course waive the protection. [15 n.14]
Jenkins v. Anderson, 447 U.S. 231 (1980)Fifth Amendment
(Privilege Against Self-Incrimination)

Fourteenth Amendment
(Due Process Clause)

  • Question Presented: "[W]hether the use of prearrest silence to impeach a defendant's credibility violates either the Fifth or the Fourteenth Amendment to the Constitution" [232]

  • Distinguishing Case: "In this case, no governmental action induced petitioner to remain silent before arrest. The failure to speak occurred before the petitioner was taken into custody and given Miranda warnings. Consequently, the fundamental unfairness present in Doyle [v. Ohio, 426 U.S. 610 (1976)] is not present in this case." [240]

  • Holding: "We conclude that the Fifth Amendment is not violated by the use of prearrest silence to impeach a criminal defendant's credibility." [238]

  • Holding: "We hold that impeachment by use of prearrest silence does not violate the Fourteenth Amendment." [240]
Kansas v. Cheever, _ U.S. _, 134 S.Ct. 596(2013) (No. 12-609)Fifth Amendment
(Privilege Against Self-Incrimination)

  • Question Presented: "[W]hether the Fifth Amendment prohibits the government from introducing evidence from a court ordered mental evaluation of a criminal defendant to rebut that defendant’s presentation of expert testimony in support of a defense of voluntary intoxication." [Slip Op. at 1]
  • Holding: “We hold that where a defense expert who has examined the defendant testifies that the defendant lacked the requisite mental state to commit a crime, the prosecution may offer evidence from a court-ordered psychologicalexamination for the limited purpose of rebutting the defendant’s evidence." [Slip Op. at 10]
  • See also Blog Post: Supreme Court Watch: Unanimous Supreme Court Decides Fifth Amendment Rebuttal Issue In Kansas v. Cheever
  • See also Other Blog Posts On Kansas v. Cheever
Kappos v. Hyatt, 566 U.S. _ (April 18, 2012) (No. 10–1219)FRE 1101 (Applicability of the Rules)
  • In civil action challenge to the denial of a patent by the Patent and Trademark Office (PTO) brought in the district court, holding “that there are no evidentiary restrictions beyond those already imposed by the Federal Rules of Evidence and the Federal Rules of Civil Procedure” in introducing new evidence before the district court [Slip Op. at 14]

  • Standard Of Review: In considering the new evidence, holding that “the district court must make a de novo finding when new evidence is presented on a disputed question of fact” and may “consider whether the applicant had an opportunity to present the evidence to the PTO” in determining “what weight to afford that evidence.” [Slip Op. at 13]
Kastigar v. United States, 406 U.S. 441 (1972)Fifth Amendment (Privilege Against Self-Incrimination)
  • Question Presented: "[W]hether the United States Government may compel testimony from an unwilling witness, who invokes the Fifth Amendment privilege against compulsory self-incrimination, by conferring on the witness immunity from use of the compelled testimony in subsequent criminal proceedings, as well as immunity from use of evidence derived from the testimony." [442]

  • Holding: "We hold that such immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege. While a grant of immunity must afford protection commensurate with that afforded by the privilege, it need not be broader. Transactional immunity, which accords full immunity from prosecution for the offense to which the compelled testimony relates, affords the witness considerably broader protection than does the Fifth Amendment privilege. The privilege has never been construed to mean that one who invokes it cannot subsequently be prosecuted." [453]

  • "We conclude that the immunity provided by 18 U.S.C. § 6002 leaves the witness and the prosecutorial authorities in substantially the same position as if the witness had claimed the Fifth Amendment privilege. The immunity therefore is coextensive with the privilege and suffices to supplant it." [462]
Kercheval v. United States, 274 U.S. 220 (1927)FRE 410
(Inadmissibility of Pleas, Plea Discussions, and Related Statements)
  • Noting common law prior to FRE 410: "Withdrawn pleas of guilty were held inadmissible in federal prosecutions...." ACN FRE 410 (1972) (citing Kercheval v. United States, 274 U.S. 220 (1927))

  • Holding: "The effect of the court's order permitting the withdrawal was to adjudge that the plea of guilty be held for naught. Its subsequent use as evidence against petitioner was in direct conflict with that determination. When the plea was annulled it ceased to be evidence.... We think the weight of reason is against the introduction in evidence of a plea of guilty withdrawn on order of court granting leave and permitting the substitution of a plea of not guilty." [224-25]

  • See also United States v. Mezzanatto, 513 U.S. 196 (1995) (holding that a defendant may waive the exclusionary provisions of FRE 410 and Fed. R. Crim. P. 11(e)(6) which generally exclude plea negotiation statements made between a prosecutor and defendant)
Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)FRE 702
(Testimony by Experts)
  • Holding: Daubert applies not only to scientific testimony but also to technical and other specialized expert testimony [149]

  • See also Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)
Kyles v. Whitley, 514 U.S. 419 (1995)Fourteenth Amendment
(Due Process Clause)
  • Holding: "[W]e hold that the prosecutor remains responsible for gauging that effect regardless of any failure by the police to bring favorable evidence to the prosecutor's attention. Because the net effect of the evidence withheld by the State in this case raises a reasonable probability that its disclosure would have produced a different result, Kyles is entitled to a new trial." [421-22]

  • Disclosure Duty: "This in turn means that the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police. But whether the prosecutor succeeds or fails in meeting this obligation (whether, that is, a failure to disclose is in good faith 438*438 or bad faith, see Brady, 373 U.S., at 87), the prosecution's responsibility for failing to disclose known, favorable evidence rising to a material level of importance is inescapable." [437-38]
Lilly v. Virginia, 527 U.S. 116 (1999)Sixth Amendment (Confrontation Clause)
  • "[A]ccomplices' confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule" [134 (plurality opinion)]
Luce v. United States, 469 U.S. 38 (1984)

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FRE 609
(Impeachment by Evidence of Conviction of Crime)
  • Trial court decision that defendant could be impeached with his prior conviction was not cognizable on appeal because any harm from the challenged ruling was speculative since the defendant failed to testify.

  • "We hold that to raise and preserve for review the claim of improper impeachment with a prior conviction [under FRE 609(a)], a defendant must testify." [43]

  • See also ACN FRE 103 (2000) (noting the 2000 amendment to FRE 103 (which does not require renewal of an objection or offer of proof to preserve review of a definitive pretrial ruling) was not "intended to affect the rule set forth in Luce v. United States, 469 U.S. 38 (1984), and its progeny")
Maryland v. Craig, 497 U.S. 836 (1990) Sixth Amendment (Confrontation Clause)
  • State interest in protecting the child abuse victim outweighed defendant's right to face accuser in court where confrontation was conducted via one-way closed circuit television, findings were made that use of procedure was necessary to protect child witness from trauma, the witness was under oath and subject to full cross-examination and victim's demeanor could be observed by judge, jury and defendant [840, 852-54]

  • Confrontation clause allows use of hearsay statements against defendant because face-to-face confrontation at trial is not indispensable element of right to confront one's accusers when reliability is ensured through other means [846-50]

  • Child abuse victim's testimony at trial via one-way closed circuit procedure did not implicate the purposes of the confrontation clause when the witness was competent to testify, did so under oath and defendant had full opportunity for contemporaneous cross-examination, and judge, jury and defendant could view witness' demeanor by video monitor [850-52]
Maryland v. King, 569 U.S. _, 133 S.Ct. 1958 (2013) (No. 12-207)Fourth Amendment (Unreasonable Search and Seizure)

  • Question Presented: "Does the Fourth Amendment allow the States to collect and analyze DNA from people arrested and charged with serious crimes?"
  • Holding: "When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to thestation to be detained in custody, taking and analyzing acheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment."
  • See also Blog Post: Supreme Court Watch: DNA Evidence Collection From Arrestees Is Reasonable Under The Fourth Amendment
  • See also Other Blog Posts On Maryland v. King
Massiah v. United States, 377 U.S. 201 (1964)Sixth Amendment (Right to Counsel)
  • The Sixth Amendment Right to Counsel bars the use of statements made by the defendant after criminal proceedings have commenced and the right has attached.

  • See also ACN FRE 402 (1972) (noting that FRE 402 "recognizes but makes no attempt to spell out the constitutional considerations which impose basic limitations upon the admissibility of relevant evidence" and listing as an example Massiah v. United States).
Mattox v. United States, 156 U.S. 237 (1895)Sixth Amendment (Confrontation Clause)
  • Admitting the former testimony of a deceased witness and disallowing a subsequent inconsistent statement of a deceased witness

  • Confrontation Clause Objectives: "The primary object of the" Confrontation Clause "was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he 243*243 gives his testimony whether he is worthy of belief." [242-43]

  • Deceased Witness Prior Testimony: "There is doubtless reason for saying that the accused should never lose the benefit of any of these safeguards even by the death of the witness; and that, if notes of his testimony are permitted to be read, he is deprived of the advantage of that personal presence of the witness before the jury which the law has designed for his protection. But general rules of law of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case. To say that a criminal, after having once been convicted by the testimony of a certain witness, should go scot free simply because death has closed the mouth of that witness, would be carrying his constitutional protection to an unwarrantable extent." [242-43]

  • Impeachment By Prior Inconsistent Statement: "[B]efore a witness can be impeached by proof that he has made statements contradicting or differing from the testimony given by him upon the stand, a foundation must be laid by interrogating the witness himself as to whether he has ever made such statements. Justice to the witness himself requires, not only that he should be asked whether he had ever made such statements, but his attention should be called to the particular statement proposed to be proven, and he should be asked whether, at such a time and place, he had made that statement to the witness whose testimony is about to be introduced." [245-46]

  • Prior Inconsistent Of Deceased Witness: The prior inconsistent statement of a deceased witness could not be admitted where the foundation to ask the witness whether the statement was made could not be established. [249-50]

  • See also ACN FRE 801 (1987) (Introductory Note: The Hearsay Problem) (noting under the Confrontation Clause, "considerations of public policy and necessity require the recognition of such exceptions as dying declarations" and citing Mattox v. United States)

  • See also ACN FRE 803(1) (1972) (Mattox v. United States "held that the right was not violated by the Government's use, on a retrial of the same case, of testimony given at the first trial by two witnesses since deceased. The decision leaves open the questions (1) whether direct and redirect are equivalent to cross-examination for purposes of confrontation, (2) whether testimony given in a different proceeding is acceptable, and (3) whether the accused must himself have been a party to the earlier proceeding or whether a similarly situated person will serve the purpose. Professor Falknor concluded that, if a dying declaration untested by cross-examination is constitutionally admissible, former testimony tested by the cross-examination of one similarly situated does not offend against confrontation.")
McNeil v. Wisconsin, 501 U.S. 171 (1991)Sixth Amendment (Right to Counsel)
  • The Sixth Amendment Right to Counsel “is offense specific” and “cannot be invoked once for all future prosecutions.” [175]

  • After the defendant was charged with armed robbery, the police could question and use statements from him concerning a separate investigation involving a murder, attempted murder, and armed burglary in another town.

  • See also Texas v. Cobb, 532 U.S. 162 (2001) (applying the Fifth Amendment Double Jeopardy Blockburger definition of “offense” to determine whether two offenses are distinct (“whether each provision requires proof of a fact which the other does not.”)) (citing Blockburger v. United States, 284 U.S. 299 (1932))
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527 (2009) Sixth Amendment (Confrontation Clause)
Michelson v. United States, 335 U.S. 469 (1948)FRE 405
(Methods of Proving Character)

FRE 404(a)
(Character Evidence)
  • On the facts of the case, allowing government cross-examination of a defense reputation witness on whether the witness had heard that the defendant had been "arrested for receiving stolen goods" twenty-seven years earlier.

  • "While the jury might conclude that a matter so old and indecisive as a 1920 arrest would shed little light on the present reputation and hence propensities of the defendant, we cannot say that, in the context of this evidence and in the absence of objection on this specific ground, its admission was an abuse of discretion." [484]

  • "Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant’s evil character to establish a probability of his guilt. Not that the law invests the defendant with a presumption of good character, but it simply closes the whole matter of character, disposition and reputation on the prosecution’s case-in-chief. The state may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice." [475-76]

  • See also ACN FRE 405 (1972) ("According to the great majority of cases, on cross-examination inquiry is allowable as to whether the reputation witness has heard of particular instances of conduct pertinent to the trait in question. Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948); Annot., 47 A.L.R.2d 1258. The theory is that, since the reputation witness relates what he has heard, the inquiry tends to shed light on the accuracy of his hearing and reporting. Accordingly, the opinion witness would be asked whether he knew, as well as whether he had heard.")

  • See also ACN FRE 404 (2006) (noting "[t]he circumstantial use of character evidence is generally discouraged because it carries serious risks of prejudice, confusion and delay" and citing Michelson v. United States)
Michigan v. Bryant, 562 U.S. _, 131 S.Ct. 1143 (2011)Sixth Amendment (Confrontation Clause)
  • "[H]old[ing] that the circumstances of the interaction between [the victim] ... and the police objectively indicate that the 'primary purpose of the interrogation' was 'to enable police assistance to meet an ongoing emergency.' Therefore, [the victim's] ... identification and description of the shooter and the location of the shooting were not testimonial statements, and their admission at Bryant’s trial did not violate the Confrontation Clause." (quoting Davis v. Washington, 547 U.S. 813, 822 (2006))

  • Further background information on the case is available on the Michigan v. Bryant Resource Page

  • See also Crawford v. Washington, 541 U.S. 36 (2004)
Michigan v. Jackson, 475 U.S. 625 (1986)Sixth Amendment (Right to Counsel)
  • Holding "that, if police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his [Sixth Amendment] right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid.” [636]
Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (2009) (No. 08-678) FRE 501
(Attorney-Client Privilege)
Nevada v. Jackson, 569 U.S. _ , 133 S.Ct. 1990 (June 3, 2013) (per curiam) (12-694)Sixth Amendment
(Right to Present a Defense) (Confrontation Clause)

FRE 608(b) (Evidence of Character and Conduct of Witness -- Specific Instances of Conduct)
  • Question Presented: "Did the Ninth Circuit exceed its authority under Antiterrorism and Effective Death Penalty Act (AEDPA) by granting habeas relief on the ground that the Nevada Supreme Court unreasonably applied ‘clearly established Federal law, as determined by’ this Court when it held that respondent’s right to present a defense was not violated by the exclusion of extrinsic evidence through which he sought to impeach a prosecution witness on a collateral matter?" (as framed in the petition for a writ of certiorari)

  • Holding: Reversing a Ninth Circuit opinion that a defendant was deprived of the right to present a defense during his Nevada rape trial by the exclusion of extrinsic evidence about the victim through extrinsic evidence.

  • The Confrontation Clause also does not "entitle[] a criminal defendant to introduce extrinsic evidence for impeachment purposes."

  • The state evidence rule, which was comparable to FRE 608(b), focuses the jury on the central facts and avoids "minitrials on collateral issues.”
  • See also Blog Post: Supreme Court Watch: No Constitutional Right To Present Extrinsic Evidence For Impeachment Purposes
  • See also Other Blog Posts On Nevada v. Jackson
Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978)Common Law Right of Access to Judicial Records

First Amendment
(Freedom of the Press)

Sixth Amendment
(Right of a Public Trial)
  • Question Presented: "[W]hether the District Court for the District of Columbia should release to respondents certain tapes admitted into evidence at the trial of petitioner's former advisers. Respondents wish to copy the tapes for broadcasting and sale to the public. The Court of Appeals for the District of Columbia Circuit held that the District Court's refusal to permit immediate copying of the tapes was an abuse of discretion." [591]

  • Holding: "[W]e hold that the common-law right of access to judicial records does not authorize release of the tapes in question from the custody of the District Court." [608]

  • "The First Amendment generally grants the press no right to information about a trial superior to that of the general public." [609]

  • "Nor does the Sixth Amendment require that the trial—or any part of it—be broadcast live or on tape to the public. The requirement of a public trial is satisfied by the opportunity of members of the public and the press to attend the trial and to report what they have observed. Ibid. That opportunity abundantly existed here." [610]
Ohio v. Reiner, 532 U.S. 17 (2001) (Per Curiam)Fifth Amendment (Privilege Against Self-Incrimination)
  • "[W]e have never held ... that the privilege is unavailable to those who claim innocence. To the contrary, we have emphasized that one of the Fifth Amendment’s “basic functions . . . is to protect innocent men . . . ‘who otherwise might be ensnared by ambiguous circumstances.’” [21 (quoting Grunewald v. United States, 353 U.S. 391, 421 (1957) (citation omitted))

  • "We have held that the privilege’s protection extends only to witnesses who have 'reasonable cause to apprehend danger from a direct answer.' That inquiry is for the court; the witness’ assertion does not by itself establish the risk of incrimination. A danger of 'imaginary and unsubstantial character' will not suffice. But we have never held, as the Supreme Court of Ohio did, that the privilege is unavailable to those who claim innocence." [21 (citations omitted)]

  • Rejecting state supreme court "determination that [defendant] Batt did not have a valid Fifth Amendment privilege because she denied any involvement in the abuse of the children"; she "had 'reasonable cause' to apprehend danger from her answers if questioned at respondent’s trial" and therefore had a valid claim to the privilege. [21]
Ohio v. Roberts, 448 U.S. 56 (1980)Sixth Amendment (Confrontation Clause)
  • Statement of an unavailable witness does not violate the Confrontation Clause as long as the statement (1) falls under a "firmly rooted hearsay exception" or (2) bears "particularized guarantees of trustworthiness"

  • See also Crawford v. Washington, 541 U.S. 36 (2004) (landmark decision overturning Ohio v. Roberts, at least in part)
Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998)Fifth Amendment (Privilege Against Self-Incrimination)
  • "We therefore hold that the Ohio clemency interview, even on assumptions most favorable to respondent’s claim, does not violate the Fifth Amendment privilege against compelled self-incrimination." [288]
Ohler v. United States, 529 U.S. 753 (2000)FRE 609
(Impeachment by Evidence of Conviction of Crime)
  • Holding "that a defendant who preemptively introduces evidence of a prior conviction on direct examination may not on appeal claim that the admission of such evidence was error" [760]
Old Chief v. United States, 519 U.S. 172 (1997) FRE 403
(Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time)
  • Question Presented: "[W]hether a district court abuses its discretion if it spurns such an offer and admits the full record of a prior judgment, when the name or nature of the prior offense raises the risk of a verdict tainted by improper considerations, and when the purpose of the evidence is solely to prove the element of prior conviction" [174 (footnote omitted)]
  • Holding: In a felon in possession of a firearm case, that trial court abused its discretion in rejecting a defendant's offer to stipulate to his felon status and admitting the full record of a prior judgment (including the name or nature of the prior offense) when it enhanced the risk of a verdict based on prejudicial considerations and the purpose of the prior judgment was solely to prove the element of prior conviction
  • "For purposes of the Rule 403 weighing of the probative against the prejudicial, the functions of the competing evidence are distinguishable only by the risk inherent in the one and wholly absent from the other. In this case, as in any other in which the prior conviction is for an offense likely to support conviction on some improper ground, the only reasonable conclusion was that the risk of unfair prejudice did substantially outweigh the discounted probative value of the record of conviction, and it was an abuse of discretion to admit the record when an admission was available."
Pennsylvania v. Ritchie, 480 U.S. 39 (1987)Sixth Amendment (Confrontation Clause)
  • Holding: “[T]he right to confrontation is a trial right” and “[n]ormally the right to confront one’s accusers is satisfied if defense counsel receives wide latitude at trial to question witnesses" [52 (emphasis in original)]

  • "The Confrontation Clause provides two types of protections for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination." [51 (citing Delaware v. Fensterer, 474 U.S. 15, 18-19 (1985) (per curiam))]

  • "Because defense counsel was able to cross-examine all of the trial witnesses fully, we find that the Pennsylvania Supreme Court erred in holding that the failure to disclose the [Children and Youth Services] file violated the Confrontation Clause." [54]
Perry v. New Hampshire, 565 U.S. __, 132 S.Ct. 716, 181 L.Ed.2d 694 (Jan. 11, 2012) (No. 10-8974)Fourteenth Amendment (Due Process Clause)
  • "When no improper law enforcement activity is involved, we hold, it suffices to test reliability through the rights and opportunities generally designed for that purpose, notably, the presence of counsel at post indictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt."
  • See also Blog Post: Supreme Court Watch: Perry v. New Hampshire And The Jury's Role In Assessing Identification Evidence
Pointer v. Texas, 380 U.S. 400 (1965)Sixth Amendment (Confrontation Clause)

Fourteenth Amendment(Due Process Clause)
  • "We hold today that the Sixth Amendment's right of an accused to confront the witnesses against him is likewise a fundamental right and is made obligatory on the States by the Fourteenth Amendment." [403]
Portuondo v. Agard, 529 U.S. 61 (2000)Fifth Amendment (Privilege Against Self-Incrimination)

Sixth Amendment (Confrontation Clause)
  • A prosecutor's closing argument "call[ing] the jury’s attention to the fact that the defendant had the opportunity to hear all other witnesses testify and to tailor his testimony accordingly" did not violate the Fifth Amendment right against self-incrimination, the Sixth Amendment Sixth rights to be present at trial and confront witnesses, or the Fourteenth Amendment right to due process [63]
Raffel v. United States, 271 U.S. 494 (1926)Fifth Amendment (Privilege Against Self-Incrimination)
  • Sixth Circuit Certified Question: “Was it error to require the defendant, Raffel, offering himself as a witness upon the second trial, to disclose that he had not testified as a witness in his own behalf upon the first trial." [495-96]

  • Holding: A defendant who elects to testify waives the immunity of the Fifth Amendment privilege. “His waiver is not partial; having once cast aside the cloak of immunity, he may not resume it at will, whenever cross-examination may be inconvenient or embarrassing.” [496-97]

  • “The safeguards against self-incrimination are for the benefit of those who do not wish to become witnesses in their own behalf and not for those who do. There is a sound policy in requiring the accused who offers himself as a witness to do so without reservation, as does any other witness. We can discern nothing in the policy of the law against self-incrimination which would require the extension of immunity to any trial or to any tribunal other than that in which the defendant preserves it by refusing to testify. The answer to the question certified is ‘No.’"
Richardson v. Marsh, 481 U.S. 200 (1987) Sixth Amendment (Confrontation Clause)
  • In applying the Bruton rule, "the Confrontation Clause is not violated by the admission of a non-testifying codefendant’s confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant’s name, but any reference to his or her existence" [211]
Riley v. California, 573 U.S. _ (June 25, 2014) (Nos. 13-132, 13-212)Fourth Amendment (Search and Seizure)
Roberts v. Russell, 392 U.S. 293 (1968) (per curiam) Sixth Amendment (Confrontation Clause)
  • “This case presents the question whether Bruton is to be applied retroactively. We hold that it is.” [293]

  • “Although Bruton involved a federal prosecution and this is a state prosecution, the right of cross-examination secured by the Confrontation Clause of the Sixth Amendment is made applicable to the States by the Fourteenth Amendment” [294]

  • See also Bruton v. United States, 391 U.S. 123 (1968)
Roviaro v. United States, 353 U.S. 53 (1957)FRE 501
(Qualified Law Enforcement Privilege)
  • Recognizing a qualified privilege for some law enforcement activities and information including the identity of confidential informants

  • The privilege “further[s] and protect[s] [ ] the public interest in effective law enforcement” [59-60]
Salinas v. Texas, 570 U.S. _, 133 S.Ct. 2174 (June 17, 2013) (No. 12-246)Fifth Amendment
(Privilege Against Self-Incrimination
  • Question Presented: "Whether or under what circumstances the Fifth Amendment's Self-Incrimination Clause protects a defendant's refusal to answer law enforcement questioning before he has been arrested or read his Miranda rights."
  • Holding: In a plurality opinion, the Supreme Court held that the Fifth Amendment privilege against self-incrimination does not automatically apply to silence in the precustodial setting during questioning by law enforcement; since the Fifth Amendment privilege is "generally is not self-executing," it must be "expressly invoke[d] ... in response to the officer’s question.

  • See also Blog Post: Supreme Court Watch: Splintered Ruling On Fifth Amendment Privilege Applied In Pre-Custody Setting
  • See also Other Blog Posts On Salinas v. Texas
Schmerber v. California, 384 U.S. 757 (1966)Fourth Amendment (Unreasonable Search and Seizure)

Fifth Amendment (Privilege Against Self-Incrimination)

Sixth Amendment (Right to Counsel)

Fourteenth Amendment (Due Process Clause)
  • The extraction of a blood sample and the admission of the report of the chemical analysis of the sample (indicating intoxication) did not violate the Due Process Clause of the Fourteenth Amendment, the privilege against self-incrimination under the Fifth Amendment; the right to counsel under the Sixth Amendment; and the bar against unreasonable searches and seizures under the Fourth Amendment.
Schneble v. Florida, 405 U.S. 427 (1972)Sixth Amendment (Confrontation Clause)
  • Concluding “any violation of Bruton that may have occurred at petitioner’s trial was harmless beyond a reasonable doubt” [428]

  • See also Bruton v. United States, 391 U.S. 123 (1968)
Shannon v. United States, 512 U.S. 573 (1994)FRE 401
(Definition of "Relevant Evidence")
  • Sentencing information is normally not relevant for the jury's consideration. The judge and jury have distinct roles in the criminal justice process.

  • "The principle that juries are not to consider the consequences of their verdicts is a reflection of the basic division of labor in our legal system between judge and jury. The jury's function is to find the facts and to decide whether, on those facts, the defendant is guilty of the crime charged. The judge, by contrast, imposes sentence on the defendant after the jury has arrived at a guilty verdict. Information regarding the consequences of a verdict is therefore irrelevant to the jury's task. Moreover, providing jurors sentencing information invites them to ponder matters that are not within their province, distracts them from their factfinding responsibilities, and creates a strong possibility of confusion." [579 (footnote omitted)]
Simmons v. United States, 390 U.S. 377 (1968)Exclusionary Rule

Fourth Amendment (Unreasonable Search and Seizure)

Fourteenth Amendment (Due Process Clause)

  • "[H]old[ing] that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection." [394]

  • See also ACN FRE 104 (1972) (noting FRE 104(d) "does not address itself to questions of the subsequent use of testimony given by an accused at a hearing on a preliminary matter") (citing, inter alia, Simmons v. United States)
Smith v. United States, 568 U.S. _, 133 S.Ct. 714 (Jan. 9, 2013)Fifth Amendment
(Due Process Clause)

Fourteenth Amendment
(Due Process Clause)

  • Question Presented: ''Whether withdrawing from a conspiracy prior to the statute of limitations period negates an element of a conspiracy charge such that, once a defendant meets his burden of production that he did so withdraw, the burden of persuasion rests with the government to prove beyond a reasonable doubt that he was a member of the conspiracy during the relevant period -- a fundamental due process question that is the subject of a well-developed circuit split."
  • Holding: The defendant bears the burden to estabish the affirmative defense of withdrawal and the government is not constitutionally required to disprove withdrawal.
  • See also Blog Post: Supreme Court Watch: Deciding Burden Of Proof On Conspiracy Withdrawal
  • See also Other Blog Posts On Smith v. United States
Southern Union Co. v. United States, 567 U.S. _, 132 S.Ct. 2344, 183 L.Ed.2d 318 (June 21, 2012) (No. 11-94)Sixth Amendment (Right To Jury Trial)
  • In a trial under the Resource Conservation and Recovery Act of 1976 (RCRA), the jury did not decide the number of days of any violation which affected the fine amount in violation of the Sixth Amendment.
  • Holding: Extending to criminal fines the holding in Apprendi v. New Jersey, in which the Supreme Court held that under the Sixth Amendment, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. 466, 490 (2000). Consequently, the jury must decide the facts which are used to increase a criminal fine beyond the maximum statutory amount.
  • See also Blog Post: Supreme Court Watch: Extending The Role Of Juries To Criminal Fines
Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379, 128 S.Ct. 1140 (2008)FRE 401 and FRE 403
(Relevance; Exclusion of Relevant Evidence)
  • In employment discrimination action, circuit erred by conducting its own FRE 401/FRE 403 analysis without remanding the case to the trial court to make the determination in the first instance

  • An abuse of discretion standard applies to FRE 401/FRE 403 rulings
Swidler & Berlin v. United States, 524 U.S. 399 (1998)FRE 501
(Attorney-Client Privilege)
  • The attorney-client privilege survives the death of the holder of the privilege.

  • Barring use of privileged communications for criminal investigation after the holder died.
Tennessee v. Street, 471 U.S. 409 (1985)

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Sixth Amendment (Confrontation Clause)
  • Non-hearsay admission of confession for rebuttal purposes to prove what happened when the defendant confessed, not what happened at the murder scene, did not violate Confrontation Clause where sheriff testified about the statement [413-14]

  • “The nonhearsay aspect of Peele's confession-not to prove what happened at the murder scene but to prove what happened when respondent confessed-raises no Confrontation Clause concerns”

  • “The State introduced [Co-defendant’s] confession for the legitimate, non-hearsay purpose of rebutting respondent’s testimony that his own confession was a coerced copy of [Co-defendant’s] statement. The jury’s attention was directed to this distinctive and limited purpose by the prosecutor’s questions and closing argument. In this context, we hold that the trial judge’s instructions were the appropriate way to limit the jury’s use of that evidence in a manner consistent with the Confrontation Clause.” [417]

  • See also Bruton v. United States, 391 U.S. 123 (1968)
Texas v. Cobb, 532 U.S. 162 (2001)Sixth Amendment
(Right to Counsel)

Fifth Amendment
(Double Jeopardy Clause)
  • Under the Sixth Amendment Right to Counsel, applying the Fifth Amendment Double Jeopardy Blockburger definition of “offense” to determine whether two offenses are distinct. [173]

  • "[W]e hold that when the Sixth Amendment right to counsel attaches, it does encompass offenses that, even if not formally charged, would be considered the same offense under the Blockburger test." [173]

  • "We see no constitutional difference between the meaning of the term 'offense' in the contexts of double jeopardy and of the right to counsel." [173]

  • Rejecting state court standard on whether the "other offenses [were] 'closely related factually' to the charged offense".

  • See also Blockburger v. United States, 284 U.S. 299 (1932) (“where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not").
Tome v. United States, 513 U.S. 150 (1995)FRE 801(d)(1)(B)
(Prior Consistent Statement)
  • In admitting a prior consistent statement under FRE 801(d)(1)(B), "The Rule permits the introduction of a declarant's consistent out-of-court statements to rebut a charge of recent fabrication or improper influence or motive only when those statements were made before the charged recent fabrication or improper influence or motive." [167]

  • "Prior consistent statements may not be admitted to counter all forms of impeachment or to bolster the witness merely because she has been discredited." [157]
Totten v. United States, 92 U.S. 105 (1827)State Secrets Privilege
  • Barring an action that may expose confidential information "to the serious detriment of the public" [107]

  • "It may be stated as a general principle, that public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential, and respecting which it will not allow the confidence to be violated.... Much greater reason exists for the application of the principle to cases of contract for secret services with the government, as the existence of a contract of that kind is itself a fact not to be disclosed." [107]
Trammel v. United States, 445 U.S. 40 (1980)FRE 501
(Privilege Against Adverse Spousal Testimony)
  • Holding "that the witness-spouse alone has a privilege to refuse to testify adversely; the witness may be neither compelled to testify nor foreclosed from testifying" [53]

  • "Here, petitioner's spouse chose to testify against him. That she did so after a grant of immunity and assurances of lenient treatment does not render her testimony involuntary." [53]
United States v. Abel, 469 U.S. 45 (1984) FRE 401
(Definition of "Relevant Evidence")

FRE 402
(Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible)

FRE 403
(Exclusion of Relevance on Grounds of Prejudice, Confusion, or Waste of Time)

FRE 608
(Evidence of Character and Conduct of Witness -- Specific Instances of Conduct)
  • In bank robbery trial, evidence of membership in prison gang was admissible; noting limiting instruction helped “ensure that the admission of this highly probative evidence did not unduly prejudice respondent” under FRE 403; “In an attempt to avoid undue prejudice to respondent the court ordered that the name ‘Aryan Brotherhood’ not be used.” [54]

  • “A successful showing of bias on the part of a witness would have a tendency to make the facts to which he testified less probable in the eyes of the jury than it would be without such testimony” under FRE 401, FRE 402. [51]

  • “Assessing the probative value of common membership in any particular group, and weighing any factors counseling against admissibility is a matter first for the district court's sound judgment under Rules 401 and 403 and ultimately, if the evidence is admitted, for the trier of fact.” [54]

  • “[T]here is no rule of evidence which provides that testimony admissible for one purpose and inadmissible for another purpose is thereby rendered inadmissible; quite the contrary is the case. It would be a strange rule of law which held that relevant, competent evidence which tended to show bias on the part of a witness was nonetheless inadmissible because it also tended to show that the witness was a liar. We intimate no view as to whether the evidence of Mills' membership in an organization having the tenets ascribed to the Aryan Brotherhood would be a specific instance of Mills' conduct which could not be proved against him by extrinsic evidence except as otherwise provided in Rule 608(b). It was enough that such evidence could properly be found admissible to show bias.” [56]
United States v. Agurs, 427 U.S. 97, 112-113 (1976)Fifth Amendment
(Due Process Clause)
  • Question Presented: "[W]hether the prosecutor's failure to provide defense counsel with ... background information" that the stabbed murder victim had a criminal history "which would have tended to support the argument that respondent acted in self-defense, deprived" the defendant "of a fair trial under the rule of Brady v. Maryland, 373 U.S. 83 [(1963)]." [98-99]

  • Holding: The prosecutor has a duty to furnish exculpatory evidence to the defense even when an affirmative request has not been made by the defense.

  • On the facts of the case, "we hold that the prosecutor's failure to tender [murder victim] Sewell's [criminal] record to the defense did not deprive respondent of a fair trial as guaranteed by the Due Process Clause of the Fifth Amendment." [114]

  • See also Kyles v. Whitley, 514 U.S. 419, 435 (1995) (noting under Agurs, "it became clear that a defendant's failure to request favorable evidence did not leave the Government free of all obligation")
United States v. Arthur Young & Co., 465 U.S. 805 (1984)FRE 501
(Accountant-Client Privilege)
  • Declining to recognize an accountant-client privilege to protect tax workpapers prepared by an independent certified public accountant during financial audits
  • "Beyond question it is desirable and in the public interest to encourage full disclosures by corporate clients to their independent accountants; if it is necessary to balance competing interests, however, the need of the Government for full disclosure of all information relevant to tax liability must also weigh in that balance. This kind of policy choice is best left to the Legislative Branch." [821]
United States v. Bagley, 473 U.S. 667 (1985)Fourteenth Amendment
(Due Process Clause)
  • Question Presented: "The issue in the present case concerns the standard of materiality to be applied in determining whether a conviction should be reversed because the prosecutor failed to disclose requested evidence that could have been used to impeach Government witnesses." [669]

  • Materiality Standard: "The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." [682]

  • The government's failure to disclose payments of $300 to two key government witnesses violated Brady; remanding for determination whether the non-disclosure was material to the outcome and therefore requiring retrial. [684]

  • See also Kyles v. Whitley, 514 U.S. 419, 433 (1995) (noting under Bagley, "the Court disavowed any difference between exculpatory and impeachment evidence for Brady purposes, and it abandoned the distinction between ... the 'specific-request' and 'general- or no-request' situations")
United States v. Balsys, 524 U.S. 666 (1998)Fifth Amendment (Privilege Against Self-Incrimination)
  • "We hold that concern with foreign prosecution is beyond the scope of the Self-Incrimination Clause." [669]

  • The phrase "any criminal proceeding," under the Fifth Amendment, "provid[es] a witness with the right against compelled self-incrimination when reasonably fearing prosecution by the government whose power the Clause limits, but not otherwise." [673-74]
United States v. Dionisio, 410 U.S. 1 (1973)Fifth Amendment (Privilege Against Self-Incrimination)

Fourth Amendment (Unreasonable Search and Seizure)

  • The compelled production of voice exemplars is not testimonial under the Fifth Amendment Privilege Against Self-Incrimination.

  • "The voice recordings were to be used solely to measure the physical properties of the witnesses' voices, not for the testimonial or communicative content of what was to be said." [7]

  • "It has long been held that the compelled display of identifiable physical characteristics infringes no interest protected by the privilege against compulsory self-incrimination." [5-6]

  • "[A] subpoena to appear before a grand jury is not a "seizure" in the Fourth Amendment sense, even though that summons may be inconvenient or burdensome." [9]

  • Rejecting argument that "the grand jury's subsequent directive to make the voice recording was itself an infringement of [the petitioner's] rights under the Fourth Amendment." [13-14]

  • "The Fourth Amendment provides protection against a grand jury subpoena duces tecum too sweeping in its terms to be regarded as reasonable." [ 12 (citation and quotation marks omitted)]
United States v. Doe, 465 U.S. 605 (1984) (“Doe I”)Fifth Amendment (Privilege Against Self-Incrimination)
  • Question Presented: "[W]hether, and to what extent, the Fifth Amendment privilege against compelled self-incrimination applies to the business records of a sole proprietorship" [606]

  • "A government subpoena compels the holder of the document to perform an act that may have testimonial aspects and an incriminating effect." [612]

  • "The act of producing the documents at issue in this case is privileged and cannot be compelled without a statutory grant of use immunity pursuant to 18 U.S.C. §§ 6002 and 6003." [617]
United States v. Felix, 503 U.S. 378 (1992) FRE 404(b)
(Other Crimes, Wrongs, Or Acts)
  • Holding: Admission of FRE 404(b) evidence from an earlier trial did not violate the Double Jeopardy Clause

  • Rejecting rule "that the admission of evidence concerning a crime under Rule 404(b) constitutes prosecution for that crime" is barred under the Double Jeopardy Clause. [387 & n.3]
United States v. Gillock, 445 U.S. 360, 367-68 (1980)FRE 501
(No State Legislator Privilege)
  • “[W]e believe that recognition of an evidentiary privilege for state legislators for their legislative acts would impair the legitimate interest of the Federal Government in enforcing its criminal statutes, with only speculative benefit to the state legislative process.” [373]
United States v. Henry, 447 U.S. 264 (1980)Sixth Amendment (Right to Assistance of Counsel)
  • Question Presented: "[W]hether respondent's Sixth Amendment right to the assistance of counsel was violated by the admission at trial of incriminating statements made by respondent to his cellmate, an undisclosed Government informant, after indictment and while in custody." [265]

  • "[W]e conclude that ... Henry's statements to Nichols should not have been admitted at trial. By intentionally creating a situation likely to induce Henry to make incriminating statements without the assistance of counsel, the Government violated Henry's Sixth Amendment right to counsel." [274 (footnote omitted)]

  • Distinguishing the use of "undercover agents to obtain incriminating statements from persons not in custody but suspected of criminal activity prior to the time charges are filed." [272]
United States v. Hubbell, 530 U.S. 27 (2000)Fifth Amendment (Privilege Against Self-Incrimination)
  • The act of production of records compelled by a subpoena "had a testimonial aspect, at least with respect to the existence and location of the documents" which implicated the Fifth Amendment and "could not be compelled .. without first receiving a grant of immunity...." [45]
United States v. Inadi, 475 U.S. 387 (1986) Sixth Amendment (Confrontation Clause)
  • “[N]o showing is required that the declarant is unavailable for statements admitted under FRE 801(d)(2)(E) [400]

  • “Cross-examination regarding [non-hearsay] … statements would contribute nothing to Confrontation Clause interests.” [398 n.11]

  • See also Bruton v. United States, 391 U.S. 123 (1968)
United States v. Jicarilla Apache Nation, 564 U.S. _, 131 S.Ct. 2313 (June 13, 2011) (No. 10-382)FRE 501
(Attorney-Client Privilege)
  • Under the “fiduciary exception” to the attorney-client privilege, a trustee may not withhold from the beneficiary communications between the trustee and attorneys retained by the trustee concerning trust management.

  • Question Presented: “[W]hether the fiduciary exception applies to the general trust relationship between the United States and the Indian tribes.” [2318]

  • Holding: The fiduciary exception does not apply. “Although the Government's responsibilities with respect to the management of funds belonging to Indian tribes bear some resemblance to those of a private trustee, … [t]he trust obligations of the United States to the Indian tribes are established and governed by statute rather than the common law, and in fulfilling its statutory duties, the Government acts not as a private trustee but pursuant to its sovereign interest in the execution of federal law. The reasons for the fiduciary exception—that the trustee has no independent interest in trust administration, and that the trustee is subject to a general common-law duty of disclosure -- do not apply in this context.” [2318]
United States v. Mezzanatto, 513 U.S. 196 (1995) FRE 410
(Inadmissibility of Pleas, Plea Discussions, and Related Statements)
  • A defendant may waive the exclusionary provisions of FRE 410 and Fed. R. Crim. P. 11(e)(6) which generally exclude plea negotiation statements made between a prosecutor and defendant

  • "Nothing in the language of Rule 804(b)(1) suggests that a court may admit former testimony absent satisfaction of each of the Rule's elements." [321]

  • Former testimony, including transcript from a grand jury proceeding, may not be introduced under FRE 804(b)(1) without a showing of "similar motive" as required under the rule [321-22]

  • Remanding for determination whether defense satisfied "similar motive" requirement in seeking to use grand jury testimony of two witnesses who were unavailable due to privilege assertion and may have provided exculpatory testimony [321-22]
United States v. Mitchell, 526 U.S. 314 (1999)Fifth Amendment (Privilege Against Self-Incrimination)
  • A guilty plea does not waive the privilege against self-incrimination at sentencing. [321-25]

  • The sentencing court could not draw an adverse inference based on the invocation of the privilege. [328-30]
United States v. Nixon, 418 U.S. 683 (1974)FRE 501
(Executive Privilege)
  • Noting qualified Executive Privilege.

  • “The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.” [713]

  • President was required to submit to a subpoena duces tecum for tape recordings and documents requested in a criminal proceeding.

  • Case also notes under Fed. R. Crim. P. 17(c), "in order to require production prior to trial, the moving party must show: (1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general “fishing expedition.” [699-700 (footnote omitted)]
United States v. Olano, 507 U.S. 725 (1993)Plain Error Standard
  • Establishing four-part plain error standard for review of an issue which a party failed to object to before the district court; this standard is now applied to evidence and other issues [732-35]

  • See also Johnson v. United States, 520 U.S. 461, 467 (1997) (applying the Olano standard to failure to object to trial court determining materiality in perjury trial)

  • See also Puckett v. United States, 556 U.S. 129 (2009) (No. 07-9712) (applying Olano plain error standard to a claim that the government violated the terms of the plea agreement)
United States v. Owens, 484 U.S. 554 (1988)

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Sixth Amendment (Confrontation Clause)

FRE 801(d)(1)(C)
(Prior Identification)

FRE 802
(Hearsay Rule)

  • Holding: "[N]either the Confrontation Clause nor Federal Rule of Evidence 802 is violated by admission of an identification statement of a witness who is unable, because of a memory loss, to testify concerning the basis for the identification." [564]

  • "Ordinarily a witness is regarded as 'subject to cross-examination' when he is placed on the stand, under oath, and responds willingly to questions. Just as with the constitutional prohibition, limitations on the scope of examination by the trial court or assertions of privilege by the witness may undermine the process to such a degree that meaningful cross-examination within the intent of the Rule no longer exists." [561-62]

  • FRE 801(d)(1)(C) is not violated by admission of a prior, out-of-court identification statement of a witness who is unable, due to memory loss, to explain the basis for the identification. [563]
United States v. Reynolds, 345 U.S. 1 (1953)State Secrets Privilege
  • Clarifying the State Secrets Privilege, which applies where "there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged." [10]

  • "The privilege belongs to the Government and must be asserted by it; it can neither be claimed nor waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect." [7-8 (footnotes omitted)]
United States v. Ruiz, 536 U.S. 622 (2002)Fifth Amendment
(Right to a Fair Trial)

Sixth Amendment
(Right to a Fair Trial)
  • Question Presented: "[W]hether the Fifth and Sixth Amendments require federal prosecutors, before entering into a binding plea agreement with a criminal defendant, to disclose impeachment information relating to any informants or other witnesses." [625 (quotation marks omitted)]

  • The entry of a guilty plea entails the knowing and voluntary waiver of other constitutional guarantees and includes the right to receive exculpatory evidence. [628-29]

  • Clarifying that Brady and Giglio provided "trial-related rights to exculpatory and impeachment information." [631]

  • Holding: "[T]he Constitution does not require the Government to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant." [633]
United States v. Salerno, 505 U.S. 317 (1992)FRE 804(b)(1)
(Former Testimony)
  • Former testimony, including transcript from a grand jury proceeding, may not be introduced under FRE 804(b)(1) without a showing of "similar motive" as required under the rule [321-22]
United States v. Scheffer, 523 U.S. 303 (1998)Sixth Amendment
(Confrontation Clause or Compulsory Process Clause) (meaningful opportunity to present a complete defense)

Fourteenth Amendment
(Due Process Clause)
  • Question Presented: "[W]hether Military Rule of Evidence 707, which makes polygraph evidence inadmissible in court-martial proceedings, unconstitutionally abridges the right of accused members of the military to present a defense." [305]

  • Holding: The rule "excluding polygraph evidence in all military trials -- is a rational and proportional means of advancing the legitimate interest in barring unreliable evidence. Although the degree of reliability of polygraph evidence may depend upon a variety of identifiable factors, there is simply no way to know in a particular case whether a polygraph examiner's conclusion is accurate, because certain doubts and uncertainties plague even the best polygraph exams." [312]

  • "[T]here is simply no consensus that polygraph evidence is reliable. To this day, the scientific community remains extremely polarized about the reliability of polygraph techniques." [309]

  • "A defendant's right to present relevant evidence is not unlimited, but rather is subject to reasonable restrictions.... As a result, state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials. Such rules do not abridge an accused's right to present a defense so long as they are not arbitrary or disproportionate to the purposes they are designed to serve." [308 (citations, footnote and quotation marks omitted)]
United States v. Zolin, 491 U.S. 554 (1989) FRE 501
(Attorney-Client Privilege)

See also FRE 104(a)
(Preliminary Questions: Questions of admissibility generally)
  • “We hold that in camera review may be used to determine whether allegedly privileged attorney-client communications fall within the crime-fraud exception. We further hold, however, that before a district court may engage in in camera review at the request of the party opposing the privilege, that party must present evidence sufficient to support a reasonable belief that in camera review may yield evidence that establishes the exception's applicability. Finally, we hold that the threshold showing to obtain in camera review may be met by using any relevant evidence, lawfully obtained, that has not been adjudicated to be privileged.” [574]

  • “We thus shall not adopt a reading of Rule 104(a) that would treat the contested communications as ‘privileged’ for purposes of the Rule, and we shall not interpret Rule 104(a) as categorically prohibiting the party opposing the privilege on crime-fraud grounds from relying on the results of an in camera review of the communications.” [568]

  • Noting standard to trigger review under the crime-fraud exception: “Before engaging in in camera review to determine the applicability of the crime-fraud exception, the judge should require a showing of a factual basis adequate to support a good faith belief by a reasonable person, that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies. Once that showing is made, the decision whether to engage in in camera review rests in the sound discretion of the district court.” . [572 (citation omitted)]

United States v. Wade, 388 U.S. 218 (1967) Fifth Amendment (Privilege Against Self-Incrimination)

Sixth Amendment
(Right to Counsel)

  • Question Presented: "[W]hether courtroom identifications of an accused at trial are to be excluded from evidence because the accused was exhibited to the witnesses before trial at a post-indictment lineup conducted for identification purposes without notice to and in the absence of the accused's appointed counsel." [219-20]

  • Fifth Amendment Holding: "We have no doubt that compelling the accused merely to exhibit his person for observation by a prosecution witness prior to trial involves no compulsion of the accused to give evidence having testimonial significance. It is compulsion of the accused to exhibit his physical characteristics, not compulsion to disclose any knowledge he might have." [222]

  • Sixth Amendment Holding: "Since it appears that there is grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial, and since presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial, there can be little doubt that for Wade the post-indictment lineup was a critical stage of the prosecution at which he was 'as much entitled to such aid [of counsel] . . . as at the trial itself.' Powell v. Alabama, 287 U.S. 45, 57 [(1932)]. Thus both Wade and his counsel should have been notified of the impending lineup, and counsel's presence should have been a requisite to conduct of the lineup, absent an "intelligent waiver."" [236-37 (footnote omitted)]
Upjohn Co. v. United States, 449 U.S. 383 (1981)FRE 501
(Attorney-Client Privilege)
  • Discussing the contours of the attorney-client privilege in the corporate setting

  • Holding "the privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice" and that the corporate attorney-client privilege must be able to reach "below officers and agents . . . responsible for directing" corporate affairs to learn facts relevant to the legal situation and to render advice [390, 391]

  • Rejecting use of a "control group test" that protects communications from and to "only the senior management, guiding and integrating" the corporation, as frustrating the goals of the privilege to provide relevant information for legal advice [390]
Washington v. Texas, 388 U.S. 14 (1967) Sixth Amendment (Compulsory Process Clause)

Fourteenth Amendment (Due Process Clause)
  • Question Presented: "[W]hether the right of a defendant in a criminal case under the Sixth Amendment to have compulsory process for obtaining witnesses in his favor is applicable to the States through the Fourteenth Amendment, and whether that right was violated by a state procedural statute providing that persons charged as principals, accomplices, or accessories in the same crime cannot be introduced as witnesses for each other." [14-15 (footnotes omitted)]

  • Holding: "We hold that the petitioner in this case was denied his right to have compulsory process for obtaining witnesses in his favor because the State arbitrarily denied him the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense. The Framers of the Constitution did not intend to commit the futile act of giving to a defendant the right to secure the attendance of witnesses whose testimony he had no right to use." [23 (footnote omitted)]
Weisgram v. Marley, 528 U.S. 440 (2000)FRE
(In General)

FRE 702
(Testimony by Experts)
  • Question Presented: "Shorn of the erroneously admitted expert testimony, the record evidence is insufficient to justify a plaintiff ’s verdict. May the court of appeals then instruct the entry of judgment as a matter of law for defendant, or must that tribunal remand the case, leaving to the district court’s discretion the choice between final judgment for defendant or a new trial of plaintiff ’s case?"

  • "We ... hold that the authority of courts of appeals to direct the entry of judgment as a matter of law extends to cases in which, on excision of testimony erroneously admitted, there remains insufficient evidence to support the jury’s verdict." [457]
Whalen v. Roe, 429 U.S. 589 (1977)FRE 501
(Privileges in General)

Fourteenth Amendment
(Due Process Clause)
  • "The physician-patient evidentiary privilege is unknown to the common law. In States where it exists by legislative enactment, it is subject to many exceptions and to waiver for many reasons.” [602 n.28 (citations omitted)]

  • Question Presented: "The constitutional question presented is whether the State of New York may record, in a centralized computer file, the names and addresses of all persons who have obtained, pursuant to a doctor's prescription, certain drugs for which there is both a lawful and an unlawful market." [591]

  • Holding: "We hold that neither the immediate nor the threatened impact of the patient-identification requirements in the New York State Controlled Substances Act of 1972 on either the reputation or the independence of patients for whom Schedule II drugs are medically indicated is sufficient to constitute an 604*604 invasion of any right or liberty protected by the Fourteenth Amendment."

  • See generally Blog Post: No Federal Physician-Patient Privilege Recognized Under FRE 501
Wheeler v. United States, 226 U.S. 478 (1913)Fifth Amendment
(Privilege Against Self-Incrimination)

  • The Fifth Amendment privilege could be asserted to deny production of corporate records after the corporation had been dissolved.

  • "We think the character of the books was not changed for this purpose, because the corporation had gone out of existence after making over the books to the defendants. Such books and papers still remained subject to inspection and investigation, and no constitutional right of the defendants was violated when, being found in possession of the documents, they were required to produce them for inspection by the grand jury." [490]
White v. Illinois, 502 U.S. 346 (1992)Sixth Amendment (Confrontation Clause)

FRE 803(2)
(Excited Utterance)

FRE 803(4)
(Statements for Purposes of Medical Diagnosis or Treatment)

  • The “spontaneous declaration” (FRE 3(2)) and “medical examination” (FRE 803(4)) hearsay exceptions do not require the declarant to testify at trial or a trial court finding that the declarant is unavailable; "There can be no doubt that the two exceptions we consider in this case are 'firmly rooted'.” [355 n.8]

  • Note: In Crawford v. Washington, 541 U.S. 36, 58 n.8 (2004), the Supreme Court called into question the continued vitality of White v. Illinois: “One case arguably in tension with the rule requiring a prior opportunity for cross-examination when the proffered statement is testimonial is White v. Illinois, 502 U.S. 346 (1992), which involved, inter alia, the statements of a child victim to an investigating police officer admitted as spontaneous declarations.”; “Although our analysis in this case casts doubt on that holding, we need not definitively resolve whether it survives our decision today, because Sylvia Crawford’s statement is testimonial under any definition.”
Whorton v. Bockting, 549 U.S. 406 (2007)

[Slip Op.]
Sixth Amendment (Confrontation Clause)
  • Crawford v. Washington Confrontation Clause analysis does not apply retroactively on collateral review

  • The second "watershed" exception did not apply under the retroactivity analysis of Teague v. Lane, 489 U.S. 288 (1989)
Williams v. Illinois, 567 U.S. _, 132 S.Ct. 2221, 183 L.Ed.2d 89 (June 18, 2012) (No. 10-8505) Sixth Amendment (Confrontation Clause)
  • Question Presented: "Whether a state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts, where the defendant has no opportunity to confront the actual analysts, violates the Confrontation Clause."
  • Plurality Holding: First, "When an expert testifies for the prosecution in a criminalcase, the defendant has the opportunity to cross-examinethe expert about any statements that are offered for their truth. Out-of-court statements that are related by theexpert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for theirtruth and thus fall outside the scope of the ConfrontationClause. Applying this rule to the present case, we conclude that the expert’s testimony did not violate the SixthAmendment." Second, the expert testimony was not "testimonial" under the Sixth Amendment.
  • See also Blog Post: Supreme Court Watch: Williams Plurality Opinion Raises More Questions About The Admissibility Of Expert Testimony
  • Further background information on the case is available on the Williams v. Illinois Resource Page

Williamson v. United States, 512 U.S. 594 (1994)FRE 804(b)(3)
(Statement Against Interest)
  • FRE 804(b)(3) only permits the admission of self-inculpatory statements, and not collateral statements [600]
Wolff v. McDonnell, 418 U.S. 539 (1974)Fourteenth Amendment (Due Process Clause)

Sixth Amendment (Confrontation Clause)
  • For state prison disciplinary proceedings, an inmate "should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals. Ordinarily, the right to present evidence is basic to a fair hearing; but the unrestricted right to call witnesses from the prison population carries obvious potential for disruption and for interference with the swift punishment that in individual cases may be essential to carrying out the correctional program of the institution." [566]

  • However, "Confrontation and cross-examination present greater hazards to institutional interests.... These procedures are essential in criminal trials where the accused, if found guilty, may be subjected to the most serious deprivations, or where a person may lose his job in society. But they are not rights universally applicable to all hearings.... We think that the Constitution should not be read to impose the procedure at the present time and that adequate bases for decision in prison disciplinary cases can be arrived at without cross-examination." [567 (citations omitted)]
Wolfle v. United States, 291 U.S. 7 (1934)FRE 501
(Marital Communications Privilege)
  • Noting the marital communications privilege is beased on the understanding that "marital confidences" are "regarded as so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administration of justice which the privilege entails" [14]

  • "Communications between the spouses, privately made, are generally assumed to have been intended to be confidential, and hence they are privileged; but wherever a communication, because of its nature or the circumstances under which it was made, was obviously not intended to be confidential it is not a privileged communication." [15]

  • Holding that "the challenged testimony to the communication by the husband to his wife is not within the privilege because of the voluntary disclosure by him to a third person, his stenographer" [14]

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