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Admissibility of Officer Will’s Testimony Relevance Evidence is logically relevant if it has a tendency to prove or disprove facts of consequence to the action. It may be legally irrelevant, however, if its effect is more prejudicial than probative. Although the prosecutor will argue that Calvin’s statement through Officer Will’s testimony implicating Donna’s role in the cocaine transaction may be logically relevant in proving that she both distributed and conspired to distribute narcotics, Donna will contend that it was too prejudicial and should not be admitted at her trial as legally irrelevant. Donna’s strongest argument is that Calvin cannot be cross-examined given the fact his case is still pending so that the veracity of his statement cannot be tested. She will also contend that Calvin’s statement is uncorroborated and that she cannot be convicted on it alone � and especially given Calvin’s stated motive to cooperate with the police to obtain a favorable plea. Donna may also argue that the statement introduces evidence of her bad character, although the prosecutor might rebut this by contending that the evidence is proof of the conspiracy charge by showing a common plan or scheme between Donna and Calvin to distribute the cocaine. On balance, Donna’s objection sustained. Hearsay Hearsay is an out-of-court statement offered for its truth. It is inadmissible unless an exception applies. Although the prosecutor could argue that Calvin’s statement that “Donna was going to meet him to collect her cocaine” was offered for its truth, Donna would contend that she made no statement implicating herself as a co-conspirator so that Calvin’s out-of-court statement to Officer Will is inadmissible hearsay. The prosecutor could counter that Calvin’s reference that Donna was going to meet him to collect the cocaine qualified as a statement through her assertive conduct in taking the necessary action to commit the conspiracy to distribute the cocaine. If so, then as hearsay the prosecutor would need to find an exception to qualify Calvin’s statement as admissible, discussed below. Co- Conspirator Admission Admissions of one conspirator, made to a third party in furtherance e of a conspiracy to commit a crime when the declarant was participating in the conspiracy, are admissible against co-conspirators or an exception to the hearsay rule. As noted, the prosecutor would contend that Calvin’s third party reference regarding Donna meeting him to “collect her cocaine” qualified as a co-conspirator admission sufficient to satisfy this exception. Donna would continue to argue, however, that Calvin’s mere assertion of her supposed conduct would not qualify as the statement requirement for the purpose of satisfying this exception. Objection by Donna sustained. Catch- All Although the federal Catch-All exception may qualify as an exception when other exceptions are inappropriate, the untrustworthiness of Calvin’s assertion given his motive in protecting his penal interest by obtaining a “favorable plea bargain” would similarly defeat this as a possible exception to the hearsay rule. Right to Confront The Sixth Amendment as made applicable to the states by the due process and equal protection clauses grants to a criminal defendant in a criminal prosecution the right to confront adverse witnesses. If two persons are tried together and one gives a confession that implicates the other, this right is violated. Although Calvin and Donna are not being tried together, Donna would contend that this right has been violated given her inability to confront and cross-examine Calvin as her alleged co-conspirator. She would also argue that Calvin’s out-of-court Mirandized statement as inadmissible hearsay also conflicts with her Sixth Amendment right to confront and cross-examine given her inability to test its trustworthiness through cross-examination. For this reason, Donna would have a strong argument in convincing the court to excise that part of Calvin’s statement pertaining to her alleged involvement in the cocaine transaction. Admissibility of Ned’s Testimony Relevance Donna would argue that the prosecutor had failed to lay a sufficient foundation regarding Detective Ned’s qualifications to testify as a narcotics expert so that his testimony as to those factors constituting a “high level drug dealer” would be so prejudicial as to outweigh its probative value. In addition, she would also contend that Calvin’s alleged statement implicating her as the owner of the cocaine did not support the inference that she was distributing it � only possessing it. On balance, Donna’s objection that the evidence is legally irrelevant is sustained. Expert Opinion The prosecutor would need to lay a sufficient foundation establishing Detective Ned’s credentials as an expert in the field of narcotic distribution. His mere “assignment to the Narcotics Bureau” as an “experienced detective” seems to only marginally accomplish this � although the prosecutor would undoubtedly contend that Ned’s testimony should be admissible with the trier-of-fact to assess its weight as potentially relevant evidence. Donna’s objection, on balance, should be overruled given the absence of a sufficient foundation demonstrating Detective Ned’s specific training and experience as a narcotics expert. Ultimate Fact Donna could also argue that Detective Ned’s testimony connecting the activity of “high-level drug dealers” with those who actually transport the drugs � such as Calvin � is inadmissible because it infers conclusion as to the ultimate fact of her guilt as to the two charges. This seems doubtful, however, assuming Ned’s testimony is qualifies as proper expert opinion. Admissibility of Rental Receipt Relevance Although Donna will argue that the rental receipt is logically probative to her defense that she is not a drug dealer � and had no connection to the rental car � the prosecutor can similarly make a strong argument that the receipt is prejudicial given its untrustworthiness as inadmissible hearsay, not the best evidence, and that has not been authenticated, discussed later. Objection by the prosecutor that the receipt is legally irrelevant is sustained. Hearsay When Donna offered the rental receipt into evidence, it was hearsay because it was offered to establish the truth that Calvin had rented the car six months earlier � the central point in her defense that she had no connection to the car. It is inadmissible on this basis unless a hearsay exception applies. Business Record Although the facts are insufficient, Donna’s best chance is to lay a foundation sufficient to establish the rental receipt as a business record. To do so, she must demonstrate its trustworthiness by proving it to be made in the course and scope of the rental car business and by a custodian authorized in making entries during the regular course of business and with the personal knowledge to do so. Best Evidence To prove the terms of a writing, the original writing must be produced if the terms of the writing are material. Secondary evidence of the writing is admissible only if the original is unavailable. As a receipt copy � and given the materiality of the content of the terms of the receipt to her defense � this would make it inadmissible unless an exception applies to this rule. If Donna can establish, for example, that the original rental document is unobtainable then the secondary evidence of the receipt could be admissible. In contrast, the federal rules would permit the introduction of the receipt if it could be established as a duplicate original � such as a carbon copy of the rental receipt. Absent proof to support the federal standard, however, the prosecutor’s objection should be sustained. Authentication Evidence is authentic if it can be established as genuine and what it purports to represent. Assuming Donna can establish the authenticity of the receipt by laying a sufficient foundation through the testimony of the custodian of business records for the car company, for example, the record would be admissible. Alternatively, Donna might also contend that the fact Calvin rented the car six months before the event could be proved independently through the testimony of the agent renting the car to him so that authenticating the receipt is unnecessary. On balance, arguments are stronger for these reasons and the prosecutor’s objection is overruled. Prosecutor’s Cross- Examination Relevance Although evidence of a defendant’s bad character is generally inadmissible by the prosecutor in his case-in-chief, here the question as to whether she lied on her income tax returns is offered by the prosecutor on cross-examination. Donna would argue, however, that the question is highly prejudicial because it is only based on the prosecutor’s “general belief” that drug dealers do not report their income. Inferentially, it may also raise too many collateral issues � such as whether Donna may have sustained a criminal conviction as a result of her “lying.” Donna’s argument on this basis is well-founded so that the objection should be sustained as legally irrelevant. Leading The prosecutor’s question is also objectionable or leading because it suggests the answer in its content. Hearsay Donna could argue that the prosecutor’s question as to her lying on her income tax returns was hearsay � because it would necessarily need to be based on construing the tax return as a statement and that it was offered for the truth that the information contained within it was false. The prosecutor would successfully contend, however, that the return was merely circumstantially relevant to the issue of Donna’s credibility � and not to the truthfulness of its actual contents. Best Evidence Again, the prosecutor would successfully argue that the content of the original tax return is not at issue � merely the inference that Donna was not truthful in supplying it � so that an objection based on the reference in the prosecutor’s question to the tax return document is not the best evidence should be overruled. Impeachment A witness may be impeached either by cross-examination or by extrinsic evidence. Generally, a foundation must be laid prior to impeaching a witness through cross-examination such as conviction of a crime or specific bad acts � in which event the cross-examiner must always inquire in good faith. Although the prosecutor would argue that his question to Donna did not imply that she had been convicted of a tax crime � only that she lied � Donna could make a strong case that the question inquired of a specific bad act and that it was not asked in good faith given the fact the prosecutor had no evidence to support the proof of his contention. While the prosecutor might counter that he asked the question is good faith given his belief that drug dealers do not “generally report their income,” Donna’s objection should be sustained given the question’s inherent prejudicial implication which she would only be able to rebut through her denial. Objection sustained. This answer provided by Cal Bar Tutorial Review. 800-783-6168 or 800-348-2401. www.cbtronline.com.

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