Powerpoint slides by Wendy Bach and Stephen Ross Johnson. Presented at the NACDL Post-Dobbs Defender Skills Summit in July 2023

The Busy Lawyer’s Guide to Hearsay Part II presented by Rene Valladares

The Busy Lawyer’s Guide to Hearsay Part I presented by Rene Valladares

The National Association of Criminal Defense Lawyers is pleased to submit our comments on the proposed amendments to Rules 611, 613, 804 and 1006 of the Federal Rules of Evidence.

The National Association of Criminal Defense Lawyers opposes the proposed amendment to Fed. R. Evid. 801(d)(1)(A). The amendment would permit the substantive use of unsworn and presumptively unreliable out-of-court statements. The amendment would thus mark a sharp break with other exceptions to the hearsay rule, which generally require circumstantial assurances of reliability. There is no identified need that would justify such a striking impingement on the trial's truth-seeking function.

Comments to the Judicial Conference Standing Committee on Rules of Practice and Procedure regarding proposed amendments to Rule 803(10) of the Federal Rules of Evidence.

Letter to the Judicial Conference Committee on Practice & Procedure regarding proposed changes to the Federal Rules of Evidence.

Letter to the Judicial Conference Standing Committee on Rules of Practice and Procedure regarding proposed changes to the Federal Rules of Criminal Procedure and Federal Rules of Evidence.

Letter to the Judicial Conference Standing Committee on Rules of Practice and Procedure regarding proposed changes to the Federal Rules of Criminal Procedure and Federal Rules of Evidence.

Letter to the Judicial Conference Standing Committee on Rules of Practice & Procedure regarding proposed rule changes to the Federal Rules of Criminal Procedure and Federal Rules of Appellate Procedure.

Amicus curiae brief of the National Association of Criminal Defense Lawyers, the National Association of Federal Defenders and National College for DUI Defense in support of Petitioner.

Amici curiae brief of the Public Defender Service for the District of Columbia and the National Association of Criminal Defense Lawyers in support of Petitioner.

Argument: Virginia’s statutory subpoena alternative is not justified by a “sky-will-otherwise-fall” rationale requiring forensic lab technicians and other prosecution experts to testify in open court, as the Supreme Court specified last term in Melendez-Diaz v. Massachusetts,129 S.Ct. 2527 (2009). The requirement that the defendant call a prosecution witness, rather than the state, is no substitute for the Sixth Amendment right to confrontation, because the Confrontation Clause procedure promotes justice in the manner in which it allocates burdens to the prosecution and opportunities to the defense. In addition, the statutory subpoena alternative is an entirely different and less effective means of adversarial testing that diminishes accuracy and reliability in the criminal justice system.

Amicus curiae brief of the National Association of Criminal Defense Lawyers, the Pennsylvania Association of Criminal Defense Lawyers, and the Public Defender Association of Pennsylvania supporting grant of the petition for certiorari.

Argument: Petitioner was convicted in state court of simple assault and endangering the welfare of a child; state supreme court held that a statement by the infant’s four-year-old sister to a county children’s and youth services investigator that petitioner injured the infant’s arm was “nontestimonial” and admissible without violating the Sixth Amendment Confrontation Clause. Statements elicited by government child advocacy investigators are forensic in nature and therefore testimonial, although there is a split in authority on this question.

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of defendant’s petition for certiorari.

Amicus curiae brief of the National Association of Criminal Defense Lawyers.

Argument: Statements to police accusing a person of a crime and describing the offense after its completion are testimonial in nature and do not fall outside the Confrontation Clause even though the suspect remains at large or has been injured.