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Sometimes the Constitution Beats the Federal Rules of Evidence

By Melody Evans and Kirk Redmond

Sometimes, when the Constitution crashes up against Federal Rules of Evidence, the Constitution wins. Not often enough, but sometimes. The 6th Am. confrontation right was bolstered a couple of years ago when the SCt decided Crawford. The overlap between that constitutional right and the hearsay rules continues to evolve, and the rules of hearsay must be adjusted accordingly.Here is a good example from Judge Robinson, in a pre-trial ruling in US v. Wittig (2005 WL 1227790, 5.23.5). The government intended to introduce business records under FRE 902(11), which allows admission with prior notice and certificate from the records custodian, pretty standard stuff. The defendant objected on the grounds that the admission based upon the certification violated Crawford...continue to full post

Full post as published by Kansas Federal Defender on October 11, 2007 (boomark / email).