Federal Rules of Evidence the Essay

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Rule: Any out-of-court statement offered to prove the truth of the matter asserted is generally inadmissible as hearsay. (801-802) However, hearsay may be admitted, in a prosecution for homicide or in a civil case, if the declarant, while believing the declarant's death to be imminent, made the statement about its cause or circumstances. (804(b)(2).

Application: Here, the defense attorney's objection is premised on the fact that the deceased Sam's statements are I inadmissible as hearsay, as an out-of-court statement by a person unavailable for trial, offered to prove that the other driver was driving on the wrong side of the road. However, Trooper Jones may offer this statement because it falls under the (804(b)(2) hearsay exception, as a statement in a civil case that the declarant made while his death was imminent.

Conclusion: The basis for the defense attorney's objection is hearsay because the deceased Sam's statement is an out-of-court statement made by a person unavailable for trial to prove the truth of the matter asserted. Trooper Jones will be able to testify as to Sam's statement objection under the dying declaration hearsay exception.


Issue: Is Mahoney's conversation with Goody in the presence of Mullberger considered a custodial interrogation?

Rule: The prosecution may not use statements stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination, guaranteed by the 5th Amendment. (Miranda v. Arizona). Custodial interrogation is any questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The Exclusionary rule prevents the introduction of evidence against a criminal that was illegally obtained by an agent of the government. (Weeks v. United States, 232 U.S. 383 (1914)).

Application: Here, the Officer Mahoney and Goody were talking amongst themselves and, though their did conversation did prompt Mullberger's confession, they never actually questioned Mullberger directly, so it was not a custodial interrogation.

Conclusion: The prosecutor can respond that the obtainment of the evidence did not violate Mullberger's privilege against self-incrimination because they did not make a custodial interrogation. The court will likely deny the motion to suppress the evidence because the basis for the motion, that it violated the privilege against self-incrimination, is invalid.


Issue: Is evidence of Mullberger's conviction for similar acts admissible as evidence of habit or routine practice.

Rule: Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. (403). Evidence of the habit of a person or the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove the conduct of the person or organization was in conformity with the habit or routine practice. (406). Habit/Routine evidence-refers to a course of conduct that is fixed invariable, unthinking, and generally refers to a very specific set of repetitive circumstances. (Tait's Handbook of Connecticut Evidence.)

Application: Here, Mullberger's prior conviction is offered as evidence of his routine commission of armed robberies of taxi drivers while yelling "Your money or your life." because Mullberger's conviction point to a very specific set of similar circumstances, proving that were Mullberger to commit armed robberies of taxi drivers, he would behave similarly. However, Mullberger's prior conviction alone is insufficient to prove that it was Mullberger's habit or routine to rob taxi drivers. This leaves the probative value of Mullberger's prior conviction, for proving that he robbed the other three taxi drivers, insufficient to justify the prejudicial effect of introducing his prior criminal acts to a jury.

Conclusion: The prosecution will likely be unable to introduce evidence of Mullberger's conviction under the Rule 403 Relevance test.


Issue: Whether the introduction of the videotape violate either search and seizure protections, the privilege against self-incrimination, or due process. Whether the videotape is inadmissible because its authenticity cannot be verified.

Rule: The Exclusionary Rule protects the 4th Amendment privilege against illegal search and seizure by prohibits the introduction of illegally seized evidence or the fruits thereof. The 5th Amendment grants a privilege against self-incrimination. However, this privilege only relates to testimonial or communicative acts of the person seeking to exercise the privilege and does not apply to acts not communicative in nature. The modification of documentary evidence by law enforcement violates the 14th Amendment's Due Process Clause if the defendant can show bad faith on the part of the police. (Arizona v. Youngblood).

Proof of chain of custody entails the chronological documentation or paper trail, showing the seizure, custody, control, transfer, analysis, and disposition of evidence consisting of fungible goods. However, strict proof of the chain of custody of a nonfungible piece of evidence is not required. When an object possesses unique characteristics and any material alteration would be readily apparent a simple in court identification is sufficient to warrant admission. (People v. Basciano).

Application: Here, the videotape was obtained with the consent of the storeowner, not through a violation of 4th Amendment search or seizure of the defendant, so it would not be prohibited under the Exclusionary Rule. The introduction of the videotape does not violate the defendant's 5th Amendment privilege against self-incrimination because the videotape is not a communicative act, but rather a demonstrative act recorded on videotape.

The videotape is not a fungible good, so proof of chain of custody is not required and it can be identified through a simple in court identification by the police officer. It would be difficult for the defendant to contest that the videotape is inauthentic, e.g. that it was modified by the police, because the police officer's in court identification is itself sufficient to establish authenticity, thereby making a 14th Amendment due process claim on these grounds unlikely.

Conclusion: The videotape will likely be allowed into evidence because it can be authenticated by the police officer…[continue]

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