Katherine Stockton

Relevance FRE: Evidence is relevant if it tends to make a material fact more or less probable. Evidence is admissible if the judge determines the probative value substantially outweighs the prejudicial effect.

Logical: Legal:

Logically relevant Probative value outweighs prejudice

Katherine Stockton

Relevance Probative value: Relation between an item of evidence and a proposition sought to be proved. Does the evidence get you anywhere closer to proving a fact? Evidence may be relevant, but does not help you prove anything. Materiality: Must be of consequence to the determination of the action Prejudice: Exclusion would cause unfair prejudice, confusion of the issue, misleading the jury, undue delay, waste of time, or needless presentation of cumulative evidence. Discretion of the judge. o Prejudicial evidence: evidence that is damaging, but we only care about UNFAIR prejudice

Katherine Stockton

Relevance Conditional Relevancy: Relevancy of a piece of evidence is conditional on whether or not one fact is true Judge: Determines whether a reasonable jury could find the fact is true Jury: Determines whether the fact is true Ex: - Evidence: white car with newt sticker & cracked window was speeding near the scene of the accident right before the accident occurred - To prove: Defendant, who owns a white car caused the accident - *Jury must determine whether it was the same white care that defendant owns, or if it was another white car, there are many newt lovers out there*

Katherine Stockton

Hearsay Out-of-Court statement is hearsay when it is offered in evidence to prove the truth of the matter asserted. Out of court statement: anything not said in court by the witness on the stand right then (other side cant cross examine statement made in past) Offered for the truth: Must be offered to prove what the statement says. If used for any other purpose, then not hearsay.

Katherine Stockton

Hearsay Exceptions = Admissible Hearsay Rationale: o Necessity for using hearsay (death, unavailability of declarant) o Trustworthy: something about statements guarantees its trustworthiness (makes up for inability to cross-examine) o Other Policy reason Credibility of Hearsay Statement o The other party can challenge the credibility of the hearsay declarant (even though not in court). Threshold requirements o Declarant must have been able to perceive/understand what was going on

Katherine Stockton

Hearsay Exceptions: Totem Pole Hearsay Totem Pole Hearsay: Hearsay on Hearsay o Out of court statement incorporates other out of court statement. EACH PART must meet an exception to be admissible Umbrella Hearsay Evidence + Each additional Part must meet an exception

Katherine Stockton

Hearsay Exceptions: Dying Declarations o A statement made by victim, not 3rd person o Ex: declaration by killer could be declaration against interest o Believing they are dyeing o Sense of impending death o About facts and circumstances of impending death o Joe shot me & I am under stress and dying imminently o The car ran the red light and hit me (can be self-serving) o NOT opinion: I think Joe poisoned me two weeks ago o Death o Federal: don't have to die, must be unavailable o CA/CL: must die

Katherine Stockton

Hearsay Exceptions: Excited Utterances Statement made by a person Event that produces shock/excitement/stress Made while under stress o Time: depends on how stressful event is. Ex: after nuclear war, people will be stressed for days. o Some Jx require statement be made contemporaneously (while the event is still going on), but NOT the Federal Rules Related to the event

Katherine Stockton

Hearsay Exceptions: Excited Utterances Policy: you are sincere when you make a statement under stress. No need for cross examination. Ex: Out of court statement made by throat Dr. about Ps injured throat will not be admissible under excited utterance hearsay excepotion bc throat Dr. is used to seeing injured throats. Probably not under stress.

Katherine Stockton

Hearsay Exceptions: Present Sense Impression (Eye on Camera Exception) Rationale: Trustworthy because declarant has no time for fabrication or reflection. Statement made by a person while perceiving an event or condition that describes or explains event made while perceiving event (most Jx) or immediately after (fed)

Does NOT need to be excited CA: Only exists if declarant describing her own actions as they occur Feds: exists

Katherine Stockton

Hearsay Exceptions: Admissions Weird thing in FRE: o Not written as an exception, but says that these statements are not hearsay o Defendant doesn't need to cross examine himself Threshold Issues: o Relevancy o Need for the evidence: if the hearsay affirms other already admitted evidence, then it is properly excluded even if it meets an exception (because they are highly prejudicial)

Katherine Stockton

Hearsay Exceptions: Admissions Elements o ANYTIME someone offering an out of court statement/conduct to another party o Inconsistent with a position the party takes presently o Declarant objects to admission of evidence o NO personal knowledge requirement o NO need to weigh prejudice v. probative value o NO requirement that admitter be absent o NO requirement that it be against interest o In civil cases, NOT criminal

Katherine Stockton

Hearsay Exceptions: Admissions o Might be damaging to declarant (but this is not required) o Doesn't matter whether it is against a party's interest at the time they made the admission or not o Truthful: declarant wouldnt admit false damaging facts Rationale: for allowing exception o most frequently used hearsay exception o Powerful! One side trying to prove their case right out of the mouth of the other side o YES opportunity to cross examine

Katherine Stockton

Hearsay Exceptions: Adoptive Admissions (Implied Admissions, Inferred Admission, Admission by Silence/Conduct) Definition: Silence or conduct that indicates acceptance after an accusation/statement about a party where a reasonable person would have denied. Ex: Head nodding, silence, smiling, shaking hands State v. Carlson: Wife called husband a liar, said track marks on arms were from shooting up in the bedroom with all your stupid friends. Carlson hung head low and didnt respond. Ex: hey this is my friend JOE, who just held up the bank o Joe smiles or agrees by conduct (Joe admits to robbing bank)

Katherine Stockton

Hearsay Exceptions: Adoptive Admissions Requirements (silence & conduct): o The accusation/statement must be heard/understood o The party must be able to deny the accusation o The party must have opportunity and motive to deny the accusation o Silence/Conduct must be unambiguous o Silence: clear that a reasonable person would have denied o Conduct: conduct must clearly give that message BUT Failure to respond to police when being arrested can never be considered an admission because of Miranda rights.

Katherine Stockton

Hearsay Exceptions: Declarations against interest Requirements: Statement made by anyone who is not a party o NOT an admission (because not made by a party) Declarant must be unavailable Has personal knowledge of the facts At the time statement made, it must be clear to declarant that it is against their interest (adverse to declarants interest)

Katherine Stockton

Hearsay Exceptions: Declarations against interest Types o Pecuniary interest: I violated contract, I owe Joe $, I caused car accident o Penal interest: could cause criminal prosecution/jail time, criminal liability o CA: holding one up to scorn in the community Criminal Cases: "I committed bank robbery w joe" = NOT declaration against interest bc of their interest to tie someone else to crime For the purpose of showing party is innocent of a crime: o FRE: can't come in w/o corroborating circumstances o CA: can come in

Katherine Stockton

Hearsay Exceptions: Admissions v. Declarations Against Interest Declaration Against Interest: o Statement made by anyone who is not a party o Declarant is unavailable to testify o Declarant has personal knowledge of the facts o Statement was "against interest" (adverse to declarants interest)

Admission: o Statement must be made by party to litigation o Does not require declarants absence o Does not require declarants personal knowledge o Only needs to be inconsistent with present position of declarant/admitter

Katherine Stockton

Hearsay Exceptions: Admissions by Agents and Employees Definition: o Statements about employment, o Made within the scope of the agency/ employment o By agents/employees MAY be binding on the employer Authorization: o CL/ CA: Employee must be authorized to speak on behalf of employer o Federal: contents of the hearsay statement shall be considered but are not alone sufficient o

Katherine Stockton

Hearsay Exceptions: Admissions by Agents and Employees o Must be related to matters within the scope of employment o Statement must be made during the Agent/Employee relationship = while employed (whether on clock or off) o Does NOT include business partner relationships because they are allowed to speak on behalf of the company o Does NOT apply with independent contractors unless you can show that the independent contract was acting as an agent of the employer

Katherine Stockton

Hearsay Exceptions: Co-Conspirator Admissions Requirements 1) Conspiracy must exist 2) Statement must be made during the course of the conspiracy 3) Statement must be made in furtherance of a conspiracy 4) Circumstances should indicate the reliability of the statement

Katherine Stockton

Hearsay Exceptions: Co-Conspirator Admissions 1) Conspiracy must exist o Conspiracy = meeting of the minds of 2+ people to do illegal act o CL/Majority: conspiracy must be established by evidence other than the hearsay statements o Federal: in determining admissibility, not bound by rules of evidence (except for privileges). can use inadmissible evidence to determine whether hearsay statements about co-conspiracy are admissible o BUT, still need more evidence other than hearsay statements in order to establish conspiracy o

Katherine Stockton

Hearsay Exceptions: Co-Conspirator Admissions 2) Statement must be made during a conspiracy o before crime complete (NOT after) o before declarant withdrew from conspiracy o by ANY of the co-conspirators (even if declarant doesnt know him) 3) Statement must be made in furtherance of a conspiracy o relates to the effort to accomplish the illegal objective o NOT U.S. v. Doerr Ex: the curtains are going to tip off the cops 4) Circumstances should indicate the reliability of the statement o Must prove can be attributed to declarant (one of co-conspirators) o

Katherine Stockton

Hearsay Exceptions: The Hillmon Doctrine Rule: when the performance of a particular act by an individual is an issue in the case, his intention (state of mind) to perform that act may be shown. MUST be present intent, intent about future event, NOT past State of mind need not be an issue in the case
o o o

Evidence: Hearsay statement by Walters "I am going to go to crooked creek with Hillmon" To prove: Intent Issue in the case: Did Walters go to crooked creek with Hillmon? DOES NOT prove directly he went to crooked creek with Hillman Intent proves its more likely that he went to crooked creek

Katherine Stockton

Hearsay Exceptions: State of Mind Requirements: 1) Must be Indirect state of mind 2) Must declare present state of mind if timing an issue 3) Must declare present intent
o o

To bind another person's conduct Admissible to show the other person also did something To prove present/past physical condition If offered to show physical condition true, admissible Ex: "my back hurts", If offered to prove back hurts -> admissible When I ate that food a week ago, my stomach hurt -> admissible

Katherine Stockton

Hearsay Exceptions: State of Mind Where state of mind is at issue at trial: State of mind offered to show state of mind Ex: alienation of affection -> Permissible hearsay under this exception Where state of mind is NOT at issue at trial: Relevant to show some other issue Must prove: state of mind is true (Ex: Mutual Ins. Case) o Issue: Was Walters at crooked creek? o Evidence: Letter I am going to go to crooked creek o Letter helps prove state of mind, intent was true

Katherine Stockton

Hearsay Exceptions: State of Mind Must be Indirect state of mind o Direct = Hearsay (I hate fred) o Indirect = NOT Hearsay (Fred is a liar, reflects dislike of fred) 2) Must declare present state of mind if timing an issue o if state of mind at particular time is in issue, declaration can't be about past state of mind Exception: Wills - to show state of mind before and after drafting Property - grantor of the deed's state of mind before/after delivery 3) Must declare present intent o may show probability that declarant committed subsequent act (intent to harm another expressed, then goes and harms person) o BUT cannot be used to reflect the conduct of a third person
1)

Katherine Stockton

Hearsay Exceptions: The California Problem

Judge decides whether a reasonable jury could find by a preponderance of the evidence that the evidence is admissible The Jury then decides whether the evidence is admissible Problem: the Jury is exposed to potentially inadmissible evidence

Katherine Stockton

Hearsay Exceptions: Former Testimony Requirements o Former testimony taken under oath o Issues identical: testimony proves same point o Parties identical: Present party is the same, or was a predecessor in interest (stood in the same shoes) o Witness is unavailable to testify now If the declarant IS available, then can just go subpoena the witness Ex: the person is dead, person beyond subpoena power of court, witness refuses to testify Present party had same motive for examining witness Ex: motive to examine at grand jury VERY different motive at trial Present party had opportunity to cross examine in prior proceeding

Katherine Stockton

Hearsay Exceptions: Prior Identification Definition: "identification of a person made after perceiving him" Elements Prior communication by a witness is admitted as substantive evidence Witness must be available for cross examination at trial

Example: U.S. v. Owens: cross examination requirement still satisfied even if witness can't remember the previous ID he made.

Katherine Stockton

Hearsay Exceptions: Prior Identification Positive factors: Fresh in witness memory ID's take place soon after offense committed: fresh in witnesses mind Takes place before witness' mind has been changed Reflection of opinion at time Eye witness identification Very important in Criminal Cases o Battle over whether eyewitnesses are correct or no o Mistaken Identification is very common o In court identification: easy to rebut

Katherine Stockton

Hearsay Exceptions: Past Recollection Recorded Rationale: Courts choose to allow evidence to be used to refresh a witness memory rather than admit the hearsay writing or do without the evidence. Attorney asks witness whether they remember. If not, uses document to refresh witness memory. Witness looks at document. If memory not refreshed, attorney can ask witness to read document aloud. The oral recitation is admitted into evidence via the reporters transcript, but not the document. The other side however may admit the document.

Katherine Stockton

Hearsay Exceptions: Past Recollection Recorded Requirements: Witness has insufficient memory to testify without document Document must have been prepared or adopted by witness Witness prepared/adopted document when matter was fresh in witness memory Document relates to the matter in question Document must correctly reflect what was remembered when it was made Document must be authentic and unaltered

Katherine Stockton

Hearsay Exceptions: Present Recollection Recorded Less stringent requirements than Past Recollection Recorded. Requirements Witness has insufficient memory to testify without document Witness does not need to have personal knowledge of the document. Evidence NOT admitted even by other side unless independently admissible. ANYTHING the judge will allow can be used to refresh the witness memory.

Katherine Stockton

Hearsay Exceptions: Business Records Requirements: Record made during the course of regularly conducted business activity Record made by employee whose job it was to record Relation to business primary activity o Hospital records: only admissible if concern diagnosis & treatment o Accident reports: inadmissible if prepared in anticipation of litigation, adversarial atmosphere untrustworthy Authentication by certification or testimony

Katherine Stockton

Character Evidence Rule: Character evidence is inadmissible unless: Defendant submits evidence of his own good character o Prosecution can rebut Defendant calls the victims character into question OR o Then Prosecution can admit evidence of Defendants character Character is at issue in the case When Defendant submits evidence of his character, a witness can testify to: Defendants good character Defendants reputation in the community Note: this is very limited, not actions, but reputation/good character

Katherine Stockton

Character Evidence Rule: Character Evidence = general propensity Character Evidence inadmissible to prove conduct on specified occasion. Character Evidence inadmissible to prove action in conformity with that trait on a particular occation Ex: This guy is a crummy driver, so must have driven badly and caused that accident. Ex: This guy is a drunk, so must have been drunk on the job that day Rationale: Evidence of prior conduct is highly prejudicial.

Katherine Stockton

Character Evidence CAN get in to show: K = Knowledge I = Intent P = Plan (or Common Scheme) P = Preparation O = Opportunity M = Motive I = Identity A = Absence of Mistake or accident Evidence includes: prior crimes, prior bad acts, pattern of bad conduct, reputation evidence, and evidence of bad character.

Katherine Stockton

Habit DIFFERENT then character evidence Character: done a number of things in past Habit: you ALWAYS do things in the same way Must show A lot of times Relevant Does the thing this particular way each time Ex: Mechanic in air conditioning case, prove or disprove negligence Ex: Business records always kept this same way, contract case

Katherine Stockton

Rape Shield Laws Rule: Evidence of the victims past sexual conduct with other people is inadmissible to prove the likelihood that the victim consented. Rationale: Evidence of past sexual conduct has very little probative value on the issue of whether victim consented to sex with defendant. HOWEVER, Evidence of past sexual conduct with Defendant IS admissible to show consent. HOWEEVER, Evidence of Defendants past sexual crimes is ALWAYS admissible.

Katherine Stockton

Rape Shield Laws Exception: Constitutional concerns (LIMITED cases only) Statutes infringe on Defendants 6th AMD right to confront accuser Olden v. Kentucky: D had right to confront victim about relationship with man she cohabited with because it related to motive to lie Prior sexual conduct with other people is admissible for other purposes: To prove prior false complaints by victim To prove pattern of conduct by victim To prove pregnancy was really caused by another person, not D To prove venereal disease was really caused by another person, not D To impeach rape victim and show motive to lie (Olden: specifically about cohabitation)

Katherine Stockton

PRIOR Similar Happenings Evidence: The way something physically occurred in the past Ex: Defect in sidewalk, negligence cases To prove: Dangerous condition must prove identical conditions (weather etc.) must prove happened many times in the past

Katherine Stockton

Subsequent Precautions Rule: evidence of subsequent remedial measures is not admissible to prove negligence or fault for the earlier event o NOT admissible to impeach the D, in order to show that the prior approach was unsafe. o Policy reason: want to encourage making premises safe and changing policies for the better BUT may be admissible for another purpose (any reason besides fault) Feasibility of precautionary measures To show identity/control of premises

Katherine Stockton

Subsequent Precautions Ds evidence: measures not feasible P can introduce subsequent remedial measures or change in policy Ds evidence: believed remedial measures were unsafe P CANNOT introduce evidence of subsequent remedial measures because unsafe not feasible, unsafe can mean that D did believed other options were safer at the time.

Katherine Stockton

Offers in Compromise Rule: Evidence of a compromise and settlement discussions are inadmissible. Rule: offers to pay medical/hospital bills inadmissible to show fault. Admission is admitted, but not offer to pay $ excluded. Requirement: Must be an actual settlement negotiation, must be an actual dispute before negotiations may take place. Policy reason: relevant to prove Fault, strength/weakness of claim, amount of claim, but prejudicial We value settling cases MORE. The system needs to settle cases. Allows people to talk candidly

Katherine Stockton

Impeachment/Cross Examination = Deconstructing evidence brought by the other party Who may impeach: Any party, including party calling witness Scope of cross examination: limited to matters brought up during direct examination To matters of credibility Additional matters at judges discretion Character/Opinion Evidence: Character evidence and opinion evidence (based on personal knowledge) is admissible to impeach because by taking the stand, the witness their honesty and character have been put at issue FRE bars extrinsic evidence of specific acts for character/opinion

Katherine Stockton

Impeachment/Cross Examination Leading questions: should not be used on direct examination except if necessary to develop witness testimony Are permitted during cross examination Are permitted if the witness is hostile Rule against impeaching your own witness CL: cant impeach your own witness unless hostile Modern: trend to eliminate rule bc not free to choose witnesses, you get the witnesses that the situation gives you, dont have to vouch for your witnesses

Katherine Stockton

Impeachment/Cross Examination Rule: cannot use extrinsic or collateral evidence to impeach a witness

Extrinsic: anything besides words from witness' mouth

Collateral: Cannot use unimportant, periphery evidence to impeach a

witness Limiting instructions: used to instruct the jury on the limited purposes for which an item of evidence is to be used. Here, instructions needed to indicate that impeachment evidence only used to show witness untruthful, NOT the truth of the impeaching evidence.

Katherine Stockton

Impeachment/Cross Examination 9 ways to impeach a witness **Purpose: to demonstrate that witness has poor character for truthfulness, lacks credibility, or lacks believability for the jury **Collateral: unimportant, periphery

**Not Collateral: important, central to the issue, presumptively admissible bc relevant, but still must assess prejudice v. probative value

Katherine Stockton

Impeachment/Cross Examination #1-4: Can use to impeach a witness without needing a good faith basis (NC) 1 2 3 4 Oath Perception Memory Communication NC NC NC NC **KEY: (NC=Never Collateral = always important, central) #1-6: Never Collateral = always important, central

Katherine Stockton

Impeachment/Cross Examination #5-8: Need good faith basis in order to impeach a witness w/these methods 5 6 7 8 Bias Prior Felony Convic Prior Bad Acts Prior Incon. Statmtnt NC NC AC SC/SNC 9 Call another Witness: SC/SNC - Character Evidence, to impeach reputation of prior witness, or to introduce contrary evidence **KEY: (AC=Always Collateral = never important, always periphery) (NC=Never Collateral = always important, central) (SC/SNC = Sometimes Collateral, Sometimes Non, depending on relevancy)

Katherine Stockton

Impeachment/Cross Examination Oath: NC = always important, central, attacking witness ability to tell truth Perception: NC = always important, central, attacking witness ability to perceive, ie. faculties were so dulled at the time of the occurrence that perception questionable OR it was dark or too far away etc. Extrinsic evidence always allowed Bias: Preconceived opinion; the relationship between two parties which might lead one party to slant his testimony in favor or against the other party. (Hostility, adverse interest) Extrinsic evidence only allowed if witness is first asked about facts AND denies them (if admits, w/in discretion of court to allow or not)

Katherine Stockton

Impeachment/Cross Examination Prior Bad Acts: Always Collateral (Never important/always periphery) CA does not recognize FRE: Must weigh prejudice v. probative value of testimony Must prove relevance of testimony: o Ex: crimes of dishonesty/fraud are relevant to impeach Extrinsic evidence: always inadmissible because bc AC o If witness denies prior bad act, cannot bring in EE

Katherine Stockton

Impeachment/Cross Examination Prior Inconsistent Statements: SN/SNC Sometimes collateral = sometimes not important, periphery o Can ask a question about prior statement, but if witness denies, then you are stuck with it o CANNOT bring in extrinsic evidence Sometimes Not Collateral = sometimes important, central o Can ask a question about prior statement o Required to either ask question about prior inconsistent statement or reserve time later to ask, then if impeached, not necessary to actually recall witness CAN bring in extrinsic evidence

Katherine Stockton

Impeachment/Cross Examination Prior Felony Conviction Exception: trend to restrict impeaching defendant in criminal trials using prior convictions. NC=Never Collateral = always important, central -> speaks to character, truth, may commit future crimes Felony: any prison time of a year or longer Probative v. Prejudice test (only for other felonies, not dishonest) o DEFENDANT: probative must outweigh prejudice o OTHER witness: probative value not substantially outweighed by prejudice (lower standard) Remoteness: 10 yrs too remote, unrelated conviction too remote crime of dishonesty: fraud, forgery, racketeering, perjury, false statement, embezzlement (element of deceit, untruth, falsification) o no probative v. prejudice balancing needed

Katherine Stockton

Impeachment/Cross Examination Prior conviction admissible under FRE if: 1) conviction is a crime of dishonesty or false statement, 2) conviction is a felony by DEFENDANT and probative outweighs prejudice OR conviction is a felony by witness OTHER than the accused and probative value not substantially outweighed by prejudice, 3) NOT collateral, central to an issue in the case and central to an issue in the testimony (i.e. relevant to central issue) 4) witness not pardoned, 5) conviction not too remote ex: more than 10 years is too remote ex: similarity between past crime and charged crime

Katherine Stockton

Privileges and Confidentiality Policy: Society values confidentiality with attorneys, physicians, psychotherapists, spouses Presumption against Privileges need to discover the truth refuge for scoundrals Strictly construed Must assert claim of privilege, if not asserted then it is waived & you cannot assert it later on appeal

Katherine Stockton

Privileges and Confidentiality: Judicial Control

Judicial Control: Too much judicial control = force disclosure of the thing privilege meant to protect Abandonment of all judicial control = intolerable abuses Contempt: if judge finds no privilege & witness refuses to talk

Katherine Stockton

Privileges and Confidentiality: Who may assert Who may assert: o the holder o Guardian o Personal representative if client is dead o Once estate wrapped up, no privilege o In order to assert: must be your privilege *Privilege must be personal to you*

Katherine Stockton

Privileges and Confidentiality: Waiver Confidentiality: privilege waived if not made in confidentiality o to be privileged, a communication must have been made in confidence o Presumed to be have been made in confidence o As long as you do not believe information disclosed to a 3rd party o reasonably believe you are alone Privilege waived if not asserted o if you are not present, judge must assert privilege for you Where there is a dispute between lawyer and client o By suing lawyer, client waives privilege as to anything relating to that dipute **only for that trial/case**

Katherine Stockton

Privileges and Confidentiality: Waiver Not waived if communicated between one privileged party to another o Ex: if doctor needs to disclose in order to carry out job, not waiving privilege Joint privilege holders o Both must waive o One can waive & doesn't affect others waiver

Katherine Stockton

Privileges and Confidentiality: Scope/Duration

Federal Courts: survives privilege holder (Survives DEATH) CA: privilege dies with person

Katherine Stockton

Privileges and Confidentiality: Attorney-Client Privilege Purpose: to make sure people feel comfortable sharing with lawyer Client must be assured that communication will never get out even after death Lawyer: Person authorized or reasonably believed by client to be authorized to practice law Includes Personnel: secretary, partner, investigator Privilege begins the moment they start discussing legal opinions o No payment etc. required CL: waived if person not lawyer (imposter, bar dues lapsed) o Privilege did not ascend until lawyer accepted case Client: sees attorney for the purpose of seeking legal services

Katherine Stockton

Privileges and Confidentiality: Attorney-Client Privilege Rule: A Client (whether or not a party to litigation) Can refuse to disclose & prevent attorney from disclosing (or anyone else) Any confidential communication Made between the client and the attorney Related to the rendering of legal services

Katherine Stockton

Privileges and Confidentiality: Attorney-Client Privilege The Crime-Fraud exception o Rule: No privilege exists for communications made to enable the client (or attorney) to perpetrate a future crime or fraud. o No privilege if go to attorney in order to cover up crime o Communication to attorney AFTER crime committed is privileged, but not communication to attorney BEFORE crime (when planning crime with attorney). o BUT client can still disclose past crimes to the attorney w/o losing privilege (may create other ethics issues though)

Katherine Stockton

Privileges and Confidentiality: Attorney-Client Privilege Public Officials - No privilege exists for communications made by public officials to counsel on matters of public interest. Privilege only exists for private affairs between public official and his private attorney, not state attorney. Corporate Client - Privilege exists for all corporate officials and employees as long as employee is authorized or directed to communicate with attorney. Privilege belongs to corporation, not individual employee.

Katherine Stockton

Privileges and Confidentiality: Work Product

Attorney has a right of privacy to her work product, opinions, strategies o Facts not privileged Theory: Opposing counsel should not benefit from the work of the attorney Work Product is not subject to discovery unless o opposing counsel can show good cause o or necessity If need shown, Judge will review notes in chambers o May blue pencil privileged opinions/strategies o OR may decide that cannot separate fact from opinion, not admissible Tip: when taking notes, combine fact & opinion

Katherine Stockton

Privileges and Confidentiality: Physician-Patient Privilege Rule: A patient, whether or not a party to the action has a privilege to refuse to disclose, and to prevent physician from disclosing, any information acquired by the physician in confidence while attending the patient. Holder: Patient, guardian, representative rd In confidence: if patient consents to presence of an unnecessary 3 party privilege is waived. BUT lab technicians etc. and people the Physician needs to communicate to treat patient does not waive. Communications: information and communications transmitted between patient and physician. While attending the patient: in the course of a consultation for purposes of obtaining treatment

Katherine Stockton

Privileges and Confidentiality: Physician-Patient Privilege Patient-Litigant Exception When patient is suing physician for malpractice, privilege is waived. Body at issue exception Anytime the patient puts their body at issue, the privilege is waived Occurs mostly in personal injury suits Criminal Trial Exception Privilege does not apply in competency, guardianship, commitment Privilege does not apply in Criminal cases, only civil Privilege can be waived

Katherine Stockton

Privileges and Confidentiality: Psychotherapist-Patient Privilege Rule: Communications made during course of treatment, made to ANY kind of medical or counseling professional who gives help related to counseling, are privileged. CL: only psycotherapists Modernly: any kind of licensed therapist or counselor therapists, counselors, social workers, licensed workers at free clinic/schools o Classism if only confined to psychiatrists, psychologists, medical Sexual Assault Victim-Counselor: many states have enacted Rationale: Society values the privacy needed in order to receive proper mental health treatment. If communications are disclosed, then people will not feel free to open up to their counselors and receive the help they need.

Katherine Stockton

Privileges and Confidentiality: Psychotherapist-Patient Privilege Wharton Rule: therapist-patient privilege applies to a communication which the patient believes is confidential Applies even if loses confidential status Patient is only person who can wave privilege NO exemption from criminal proceedings CAN assert in criminal cases More protection than Physician-Patient privilege MORE constitutional dimensions: right of privacy Waiver: if patient pleads insanity or puts mental health at issue (civil/crim)

Katherine Stockton

Privileges and Confidentiality: Psychotherapist-Patient Privilege Tarasoff/Menendez Dangerous Patient Exception When patient confides an intent to harm a third person, the danger of violence justifies therapist to warn third person Duty to warn to prevent harm Privilege against disclosure waived ONLY regarding sessions where patient confided intent to harm Privilege not waived for other sessions

Katherine Stockton

Privileges and Confidentiality: Marital Privilege Rationale: The court values the marital relationship. The law does not want to weaken the marital bond. CL: Spouses incompetent to testify against eachother without permission because they were considered one (wife = property)

Katherine Stockton

Privileges and Confidentiality: Marital Privilege Modernly: Two privileges 1) Privilege not to be called as a witness at all In any action where spouse is a party IN the others: can be asked questions, but must assert privilege 2) Privilege not to be compelled to testify Against eachother About confidential communications between spouses during the course of the marriage BUT, a spouse CAN testify if they wish

Katherine Stockton

Privileges and Confidentiality: The Seal of Confession

English CL: not privileged Modernly: Developed from American CL in NY now statutorily recognized in most states Rule: Person may refuse to testify and prevent clergy from testifying about communication made to clergy when clergy acting as spiritual advisor.

Katherine Stockton

Privileges and Confidentiality: The News Persons Privilege 1st AMD: Freedom of Press Some protection in gathering news & safeguarding sources BUT scope of protection not clear, not resolved Matter of Farber: News reporter investigated during a murder trial. Refused to testify and produce materials and was fined heavily Held: News Person Shield Laws Apply if no showing of need o due process concerns, relevancy in a criminal case If no showing of need, only protects from criminal contempt Branzenburg: requiring newsmen to appear and testify does not abridge freedom of speech and press guaranteed by 1st AMD

Katherine Stockton

Privileges and Confidentiality: Miscellaneous

Accountant-Client Privilege: SMALL Minority of states recognize Parent-Child Privilege: SMALL Minority of states recognize

Katherine Stockton

Privileges and Confidentiality: The Privilege Against Self Incrimination

5th AMD: no person shall be compelled in any criminal case to be a witness against himself Protects: testimony NOT evidence

Katherine Stockton

Privileges and Confidentiality: Governmental Privileges Scope: Any Govt Agency can claim, but not absolute Tax agencies , State Secrets, Military Secrets, Official Information relating to international affairs, Presidential communications Balancing Test Privilege balanced against what is on the other side Need v. Danger in production: What do we lose if it is produced? Problem w/In camera review: revelation, judge may need experts

Katherine Stockton

The Best Evidence Rule Rule: to prove the contents of a writing, where the terms are material, the original writing must be produced. A writing = document, movie, tape, photo, x-ray, any type of recording Secondary evidence inadmissible (ex. draft, long hand copy, another person testifying that he saw the writing) ***Duplicate = same as original***

Katherine Stockton

The Best Evidence Rule Excused if: Can show good cause for not having an original (lost, someone else has document) NOT excused if: unintentionally unavailable Doesnt apply: if you are talking about the document, but not offering the document into evidence (and are not seeking to prove the contents of the document)

Katherine Stockton

Competency Definition: willingness of the court to hear evidence from a particular witness. The Witness eligibility to testify, eligibility to be rcvd. CL: disqualifications: lack of religious belief, race, felony (bc of oath) Modern Law: reasonable rules, age, mental qualifications Rule: Judge determines whether the witness must @ time of testifying: Capable of expressing himself so as to be understood by the jury Capable of understanding the duty to tell the truth (THE OATH) o Sincere, truthful, understand importance of oath Testimony based on personal knowledge (if not an expert) Perceived the event RARE for witness to be incompetent

Katherine Stockton

Authentication rule: Definition: proof of authorship, proof that document is what it purports to be, genuine Rule: Must provide enough proof for a reasonable jury to conclude that the documents are what they purport to be Everything needs to be authenticated, condition precedent to admissibility Authentication includes chain of custody testimony, witness must testify CL: signature or recitation of authorship not sufficient Majority: custodian or other qualified witness must appear to authenticate Minority: affidavit authentication for records of a nonparty are enough Fed: No sponsoring witness required if records certified.

Katherine Stockton

Judicial Notice Taken when something is so well known in community that everyone is aware of it (Ex: Oakland is east of SF) Facts are "common-sense" and "taking-for granted" Court can do it even when not asked Jury instructions: jury CAN but does not have to accept fact judicially noticed as true Problem: when judicial notice is an element of the crime itself *Judicial notice can never be taken to prove an element of the crime or of the tort* Burden on Prosecutor to prove element of every crime Burden on Plaintiff to prove every element of tort

Katherine Stockton

Judicial Notice Subject to immediate verification by sources that are impeccable Calendar, almanac Ex: Lincoln proved that witness could not have seen crime bc there was no full moon that night, no visibility -> used almanac CAN rebut: but accepted on first instance if not rebutted

Katherine Stockton

Presumptions: Generally

o o

Must provide proper jury instructions Burdens: o Burden of Proof: To Produce Evidence o Burden of Proof: Persuasion

Katherine Stockton

Presumptions: Inference Permissive Presumption OR Presumption of fact = Inference

o o o

Relationship between proven or admitted fact (basic fact)(A) and another Fact which is sought to be proven (can presume fact)(B) Not necessary to conclude either way If you want to you are allowed to infer

Katherine Stockton

Presumptions: Rebuttable Presumption of Law = Rebuttable Presumption

o

The only true presumption

Two Types: o Thayer Bursting Bubble o Morgan

Katherine Stockton

Presumptions: Rebuttable Thayer: If (basic fact)(A) is proven you must conclude (presumed fact)(B) Ex: Post office case: Little chance that received on another day If you find that it was mailed (basic fact)(A), then you must find that arrived certain day (presumed fact)(B)

Katherine Stockton

Presumptions: Rebuttable Thayer: To Rebutt: Bursting Bubble

Two ways to rebutt: o Never Mailed (basic fact) o Never Received (presumed fact) Bursting Bubble o If prove that never received (attack presumed fact), then presumption disappears (bubble bursts) o To (attack presumed fact) must provide: enough evidence that reasonable jury could conclude that not rcvd If Bubble Bursts -> becomes permissive, inference Burden: on PROPONENT to prove (basic fact)

Katherine Stockton

Presumptions: Rebuttable Morgan

If evidence of (basic fact) given, then must conclude (presumed fact) UNLESS convinced that presumed fact did not occur Burden shifting Evidence of (basic fact) given by PROPONENT -> not proven necessarily CHALLENGER must prove that (presumed fact) did not occur Burden: on CHALLENGER to disprove (presumed fact)

Katherine Stockton

Opinion Testimony by Non-Expert Witness Layperson Opinion Rule: Opinion = inference or conclusion drawn from facts observed May testify only as to relevant facts about which she has firsthand knowledge (giving direct evidence) Cannot state opinions and conclusions drawn from observations Non Expert Opinion Testimony admissible if: Rationally based on witness' perception Helpful to a clear understanding of the testimony, fact in issue Not based on scientific, technical or specialized knowledge Opinions of non-lawyers to legal matters inadmissible

Katherine Stockton

Opinion Testimony by Expert Witness Admissible if: 1) Specialized knowledge 2) That will assist a jury in understanding 3) Proper basis for opinion/Sources of expert data (experts in field rely on this information) 4) Basis of opinion revealed 5) Reasonable Certainty: reasonable degree of probability of opinion

Katherine Stockton

Opinion Testimony by Expert Witness

1)

Specialized knowledge or qualifications Training or Education Skill, experience in field CAN BE ANYTHING Familiarity with authoritative references in the field Membership in professional association

Katherine Stockton

Opinion Testimony by Expert Witness

2)

That will assist a jury in understanding o Layperson uninformed about the issue: Help jury decide question to which they lack knowledge or training o Evidence regarding the "Ultimate Issue" admissible as long as does not draw legal conclusions o Criminal: mental state/condition o CANNOT opine as to whether D had mental state at time of crime, but CAN testify about mental disease/defect o CANNOT opine as to whether D had the mental state constituting an ELEMENT of the crime o NOT admissible for: fault, negligence, guilt o Jurors can draw these conclusions from the facts

Katherine Stockton

Opinion Testimony by Expert Witness

3)

Proper basis for opinion/Sources of expert data (experts in field rely on this information) o Facts personally observed o Evidence adduced during trial CANNOT resolve credibility issues o Hypothetical questions o Data presented by counsel/others during trial

Katherine Stockton

Opinion Testimony by Expert Witness

4)

Underlying data revealed o Must first describe data upon which opinion based OR respond to hypothetical o FRE: not necessary unless requested by judge Reasonable Certainty: reasonable degree of probability of opinion

5)

Katherine Stockton

Opinion Testimony by Expert Witness CAN impeach expert witness Qualifications Prior inconsistent opinions in the present case Alteration of hypothetical questions Showing compensation Contrary expert views

Katherine Stockton

Scientific Evidence Admissible if: Similar conditions: experiment must be conducted under substantially similar conditions Conducted by experts: then experts must testify about conduct of the test and reliability of procedures Policy: Frye test is too restrictive, novel or new scientific approaches are not admissible until they are well established, which might not occur until much later because scientific community is naturally hesitant to accept new science, so as a result a lot of valid science is kept out. BUT Daubert test in practice has not admitted any more evidence. Judges really like factor #5

Katherine Stockton

Scientific Evidence

Frye General Acceptance Test: expert testimony permissible where scientific principle underlying the testimony is sufficiently established to have gained general acceptance in the particular field which it belongs Daubert Scientific Value Test: rejects Frye Test. Factors considered in determining whether scientific evidence is based on acceptable science and testability: 1) Peer Review 2) Publication 3) Error Rate 4) Existence of standards 5) General Acceptance in its Field

Katherine Stockton

Scientific Evidence: Judicial Notice Rule: Firmly accepted scientific knowledge can be judicially noticed, but jury not bound by test results (ex: radar) Probative Value: probative value must outweigh risk of confusing or misleading jury Types: fingerprinting, microanalysis, DNA profiling, toxicology, psychiatry, psychology, fingerprinting, polygraphs (most exclude), hypnosis (special rules)

Katherine Stockton

Scientific Evidence/Competency: Hypnotism Problem: its a novel scientific approach, controversial Competency: after hypnosis, no memory, memory altered 3 diff approaches 1) Restrictive: after hypnosis, incompetent forever 2) Lax: Witness testifies, leave it up to jury to decide, can attack vulnerabilities of hypnosis 3) Middle: Dangers of hypnosis v. value of investigation

Katherine Stockton

Scientific Evidence/Competency: Hypnotism 3) Middle: Dangers of hypnosis v. value of investigation Recognize dangers of hypnosis Recognize value of investigation: if trying to rescue other victims o Allows police to use to investigate After hypnosis, not incompetent forever, but limitations: In testimony, witness may only testify to things remembered before hypontic session o How: video before hypnosis Hypnosis must be conducted by recognized clinical practitioner Hypnosis must be taped

Katherine Stockton

Hearsay Mnemonic

BAD SPPPITE (because it's bad to be spitefull, so you stutter it Business Records Admissions Dying Declarations State of mind Past/Present Recollection Recorded Present Sense Impression Prior Identification Interest (statements against) Testimony (former) Excited utterance