Federal Rules of Evidence: CA Bar

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Relevance:

General Rule:

a. Irrelevant evidence is inadmissible / NOT ADMISSIBLE

b. Relevant evidence MIGHT be admissible.

Always write about why the evidence is RELEVANT:

Relevance defined:

Evidence is relevant if it has
ii. ANY TENDENCY
iii. to make the existence
iv. of any fact
v. that is OF CONSEQUENCE
vi. to the determination of the action
vii. MORE OR LESS PROBABLE
viii. than it would be without the evidence.

Offered to prove a fact OF CONSEQUENCE:

1) Need to prove a fact that the substantive law says is of consequence

MORE OR LESS PROBABLE:

Need to distinguish between RELEVANCE from PROBABTIVE VALUE:

Relevance
i) is always yes or no.
ii) it either effects the probabilities or it doesn't

Probative value:
i) is relative:
ii) it can effect the probabilities in different ways.

OBJECTION TO EVIDENCE 1:

Courts have the discretion to exclude relevant evidence

1) if probative value
2) is substantially outweighed by

a) unfair prejudice,
b) confusion,
OR
c) waste of time.

Emotionally disturbing evidence or evidence admissible for one purpose but inadmissible for another purpose

Exclusion of relevant evidence for policy reasons:

i. LIABILITY INSURANCE:
ii. SUBSEQUENT RELEDIAL MEASURES OR REPAIRS:
iii. SETTLEMENT OFFERS TO SETTLE AND PLEAS:
iv. PAYMENTS OR OFFERS TO PAY MEDIAL EXPENSES:

Exclusion of relevant evidence for policy reasons:

LIABILITY INSURANCE:

Evidence of liability insurance is inadmissible to prove

a) culpable conduct like NEGLIGENCE

b) or Ds ability to pay a judgment.

2) Evidence of insurance is admissible to prove ANYTHING ELSE.

a) Bias of defense witness

b) Vicarious liability

c) Etc.

Exclusion of relevant evidence for policy reasons:

SUBSEQUENT REMEDIAL MEASURES OR REPAIRS:

Evidence of
1) safety measures or repairs
2) after an accident
3) is inadmissible
4) to prove culpable conduct

5) and, in a PRODUCTS LIABILITY ACTION, is inadmissible to prove DEFECTIVE PRODUCT DESIGN.

6) Can offer it to prove other things: like
a) Control or responsibility
b) Also to rebut the defense of NO FEASIBLE PRECAUTION:
i) D says there was nothing he could have done to avoid this accident
ii) P offers Ds actions modifying it

This is admissible to prove their were feasible precautions available. D is arguing more than just D was not negligent, D is arguing the accident was impossible. When this argument is made, the law says you made a repair after the accident, so apparently the accident could have been avoided, so its only fair that D can admit this evidence.

Exclusion of relevant evidence for policy reasons:

SUBSEQUENT REMEDIAL MEASURES OR REPAIRS:

in a PRODUCTS LIABILITY ACTION,

is inadmissible to prove DEFECTIVE PRODUCT DESIGN.

Exclusion of relevant evidence for policy reasons:

SUBSEQUENT REMEDIAL MEASURES OR REPAIRS:

Can offer it to prove other things: like,

a) Control or responsibility
b) Also to rebut the defense of NO FEASIBLE PRECAUTION:
i) D says there was nothing he could have done to avoid this accident
ii) P offers Ds actions modifying it

This is admissible to prove their were feasible precautions available. D is arguing more than just D was not negligent, D is arguing the accident was impossible. When this argument is made, the law says you made a repair after the accident, so apparently the accident could have been avoided, so its only fair that D can admit this evidence.

Exclusion of relevant evidence for policy reasons:

SETTLEMENT OFFERS TO SETTLE AND PLEAS:

1) In a CIVIL case,

a) evidence of settlements,
b) offers to settle,
c) and related statements
d) are inadmissible to prove liability or fault.

Exceptions:
i) NO CLAIM FILED OR THREATENED YET.
ii) NO DISPUTE AS TO LIABILITY OR DAMAGES.

Exclusion of relevant evidence for policy reasons:

SETTLEMENT OFFERS TO SETTLE AND PLEAS:

In a CRIMINAL case,

a) pleas later withdrawn,
b) offers to plea
c) and related statements
d) are inadmissible to prove guilt.
e) This includes not just pleas of guilty but also nolo.

Exclusion of relevant evidence for policy reasons:

PAYMENTS OR OFFERS TO PAY MEDIAL EXPENSES:

1) Evidence of payments or offers to pay
2) medical expenses
3) is inadmissible
4) when offered to prove liability for the injuries in question.

5) BUT RELATED STATEMENTS ARE STILL ADMISSIBLE.

SIMILAR OCCURRENCES:

Usually evidence is irrelevant if it is not about the specific people and events in issue.

SOMETIMES IT IS RELEVANT
a) when there are certain similarities
b) between that evidence
c) and the people and events at issue.

SIMILAR OCCURRENCES: IS RELEVANT

8 types of cases:

i) SOMETIMES ADMISSIBLE TO PROVE CAUSATION:

ii) PRIOR ACCIDENTS OR CLAIMS OF PLAINTIFFF EXCEPTION: FOR PATTERN OF FRAUDULENT CLAIMS:

iii) PREVIOUS SIMILAR ACTS OF A DEFENDENT

iv) REBUT A DEFENSE OF IMPOSSIBILITY

v) COMPARABLE SALES RELEVANT TO ESTABLISH VALUE:

vi) HABIT EVIDENCE:

vii) ROUTINE PRACTICE EVIDENCE:


viii) INDUSTRIAL CUSTOM EVIDENCE

SIMILAR OCCURRENCES:

CAUSATION:

SIMILAR OCCURRENCES:

i) SOMETIMES ADMISSIBLE
ii) TO PROVE
iii) CAUSATION:

Similarities between x and y's occurrences.

SIMILAR OCCURRENCES:

PRIOR ACCIDENTS OR CLAIMS OF PLAINTIFFF

EXCEPTION: FOR PATTERN OF FRAUDULENT CLAIMS:

PRIOR ACCIDENTS OR CLAIMS OF PLAINTIFFF
i) USUALLY IRRELEVANT:
ii) Without anything more to make the prior accidents pertinent to what was going on in this case, then this evidence is usually irrelevant.

iii) EXCEPTION: FOR PATTERN OF FRAUDULENT CLAIMS:CAN SHOW PRIOR ACTS IF SHOWS
1. PATTERN OF FRAUDULENT CLAIMS
or
2. PREEXISTING / PRIOR CONDITION / INJURY >

relevant because it goes to damages / causation

SIMILAR OCCURRENCES:

PREVIOUS SIMILAR ACTS

PREVIOUS SIMILAR ACTS OF A DEFENDENT

i) RELEVENT TO PROVE INTENT

SIMILAR OCCURRENCES:

DEFENSE OF IMPOSSIBILITY

REBUT A DEFENSE OF IMPOSSIBILITY.

i) D says what happened was impossible

ii) P can use evidence of prior acts/incidents to prove it was possible.

SIMILAR OCCURRENCES:

COMPARABLE SALES

COMPARABLE SALES RELEVANT TO ESTABLISH VALUE:

i) Where value of property is of issue, evidence of the sales price of similar property in the same area and sold at the same time si relevant.

SIMILAR OCCURRENCES:

HABIT EVIDENCE:

HABIT EVIDENCE:

i) Habit of a person (Frequently repeated conduct) to act in a certain way is relevant and admissible
ii) to show the person acted in accordance with the habit
iii) on the occasion in question.

DISTINGUISH HABIT FROM CHARACTER EVIDENCE:

CHARACTER EVIDENCE:
1. Says something general about a person
2. and conveys a moral judgment
3. Not admissible. This is not habit.

HABIT EVIDENCE: Describes
1. specific conduct
2. and makes no moral judgment
3. Frequently repeated conduct.
4. Then admissible.

SIMILAR OCCURRENCES:

ROUTINE PRACTICE EVIDENCE:

ROUTINE PRACTICE EVIDENCE:

i) Routine business practice is relevant
ii) to show that conduct of the entity
iii) was in conformity with that practice
iv) on the occasion in question

SIMILAR OCCURRENCES:

INDUSTRIAL CUSTOM EVIDENCE

INDUSTRIAL CUSTOM EVIDENCE

i) RELEVANT TO PROVE
ii) STANDARD OF CARE
iii) IN NEGLIGENCE CASE.

Admissible because it proves the standard of care in the industry.

CHARACTER EVIDENCE:

Global issues:

i. The rules will be different for the purpose for which the character is being offered:

1) Offered to prove character because character is an issue in the case

2) Offered to prove character as circumstantial evidence of a person's conduct on the occasion in question

3) Offered to impeach or support the credibility of a witness

ii. What is the method or technique used to prove character?

1) Specific acts of conduct
2) Opinion
3) Reputation

iii. Civil or Criminal case?

iv. Does the evidence prove a pertinent character trait?

IN A CIVIL CASE:

Character evidence to prove CONDUCT?

IN A CIVIL CASE:

Character evidence
1) is inadmissible to prove CONDUCT

2) except where the civil claim is based on sexual assault or child molestation. In such a case Ds prior acts of sexual assault or child molestation are admissible to PROVE CONDUCT in this case.

3) Same rule applies if D is bringing forward the evidence. Still inadmissible if D is bringing forward evidence to prove CONDUCT by character.

IN A CIVIL CASE:

Character evidence to prove character itself:

ii. ISSUE: But changing the purpose for which the character evidence is being offered.
1) Before offering it to prove conduct.
2) Here we are offering it to prove character itself.

RULE:
i) CHARACTER EVIDENCE
ii) ADMISSIBLE
iii) WHERE CHARACTER IS IN ISSUE

EXAMPLES:
i) Suit for defamation of character.
ii) Negligent entrustment
iii) Child custody disputes
iv) Loss of consortium

IN A CIVIL CASE:

Character evidence

ISSUE: Allowable methods to prove character when character is in issue:

ISSUE: Allowable methods to prove character when character is in issue:

a) ALL:
i) specific instances of conduct,
ii) opinion,
iii) and reputation.

If in a CIVIL case where character is itself in issue the character evidence will be admissible and you can prove it any way you want.

IN A CRIMINAL CASE:
i. Is the character evidence admissible to prove conduct of the D, or of the victim?

Think about doors through which the character evidence can passed.

RULE: When the trial begins both of these doors are closed.
a) The D has the keys to the doors, and the P can offer evidence.

Opening one door wont open other doors

IN A CRIMINAL CASE:

ADMISSIBILITY OF EVIDENCE OF Ds CHARACTER TO PROVE CONDUCT:

1) Prosecution cannot be first to offer such evidence.

EXCEPTIONS:
i) In cases of sexual assault or child molestation, prosecution can be first to offer evidence that D committed other acts of sexual assault or child molestation.

ii) Where the court has admitted evidence of the VICTIM's character offered by the D, prosecution can be FIRST to offer evidence that D has the SAME character trait.

IN A CRIMINAL CASE:

ADMISSIBILITY OF EVIDENCE OF Ds CHARACTER TO PROVE CONDUCT:


ISSUE: Defense can open the door. On cross examination of a prosecution witness, the D offers evidence D has a reputation as being non violent = CHARACTER EVIDENCE.

RULES:
i) This is admissible because the D is doing it.

ii) Must be a pertinent character trait.

iii) Once he does it, the prosecution can offer pertinent CHARACTER EVIDENCE to rebut.

Must be of the pertinent character trait.

IN A CRIMINAL CASE:

ADMISSIBILITY OF EVIDENCE OF Ds CHARACTER TO PROVE CONDUCT:



Once the door is open: METHOD THAT CAN BE USED TO PROVE CHARACTER EVIDENCE:

i) ON DIRECT:
One. REPUTATION
Two. AND OPINION EVIDENCE are admissible on direct examination by any party, but not specific instances evidence.

ii) On cross examination
One. by any party, REPUTATION,
Second. OPINION,
Third. AND SPECIFIC INSTANCES ARE ALL ADMISSIBLE.

IN A CRIMINAL CASE:

ADMISSIBILITY OF EVIDENCE OF VICTIM's CHARACTER TO PROVE VICTIM's CONDUCT:

1) Lots of the same rules apply:

2) Prosecution cannot be the first to offer character evidence to prove conduct:
a) the trial begins with the door to the victim's character closed.

3) There are two ways D can open the door:
i) If the D offers evidence of the victim's character, prosecution may rebut.

ii) In a HOMICIDE case, if D offers evidence
the VICTIM attacked first, prosecution may offer evidence of VICTIM's character for PEACEFULNESS.

EXCEPTION:
i) After court admits evidence of victim's violent character, prosecution can offer evidence of D's VIOLENT character.

-Needs to be evidence of the SAME character trait.

-D is opening 1 door here, but this is opening 2 doors for the Prosecution. This is the only exception like this.

VICTIM's CHARACTER: RAPE SHIELD STATUTE:

Special rules,in criminal and civil cases involving rape or other sexual assault, limiting defense evidence of alleged victim's character when offered to prove consent.

Criminal rules:

i. Reputation
ii. and opinion evidence
iii. inadmissible

iv. Specific instances of alleged victim's conduct admissible only to prove
1. Third party is source of semen or injury
Or
2. Prior acts of consensual intercourse between D and alleged victim.

VICTIM's CHARACTER: RAPE SHIELD STATUTE:

Special rules,in criminal and civil cases involving rape or other sexual assault, limiting defense evidence of alleged victim's character when offered to prove consent.

Civil Rules:

1) REPUTATION
2) OPINION AND
3) SPECIFIC INSTANCES
4) Evidence is admissible
5) if probative value substantially outweighs unfair prejudice

6) and in the case of REPUTATION evidence,
1. plaintiff
2. put her reputation in issue.

SPECIFIC INSTANCES OF D's BAD CONDUCT:

a) May be admitted
i) to prove anything
ii) other than character
iii) that is relevant.

May be admitted to prove MIMIC:

Motive
Intent
Mistake / absence of mistake
IDENTITY: Similarity and uniqueness required to prove identity.
Common plan or scheme

Court has discretion to exclude MIMIC evidence for unfair prejudice

TESTIMONIAL EVIDENCE:

Competency: 4 requirements:

i. Personal knowledge.
1) Need to show that testifying to facts that you perceived with your 5 senses.
2) Perceptions may be limited / don't have to be perfect.

ii. PRESENT RECOLLECTION:
1) witness must testify from present recollection.
a) Not from some record regarding matters what witness once knew but has now forgotten

iii. Communication:
1) Witness must be able to relate perception either directly or through interpreter

iv. SINCERITY:
1) witness must take OATH or make AFFIRMATION to tell the truth.
a) Atheists: ok if make affirmation
b) 3 year old: ok if promise to tell the truth and not make things up.
c) Pathological liars: ok
d) Hypnotized witness: Yes / ok

OBJECTIONS TO FORM OF TESTIMONEY AND QUESTIONS:

a. Need timely and specific objection or else the objection is waived.

b. CALLS FOR A NARRATIVE:
i. Problem: open ended question gives the witness the opportunity to say anything
ii. Questions need to be specific

c. UNRESPONSIVE;
i. Answers need to be responsive.
ii. Remedy is motion to strike

d. USUALLY NO LEADING QUESTIONS ON DIRECT EXAMINATION:
i. A question that suggests the answer
ii. LEADING is ok on CROSS EXAMINATION
1) On cross examination, need to stay within the scope / subject matter as the direct examination.
iii. Leading OK on direct if
1) Adverse witness
2) Hostile witness
3) Witness needing help

e. ASSUMES FACTS NOT IN EVIDENCE

f. ARGUMENTANTIVE:
i. Things that aren't really question, but simply makes an argument to the jury. This is better for final summation

g. COMPOUND:
i. 2 questions in 1 = bad

OBJECTIONS TO FORM OF TESTIMONEY AND QUESTIONS:

-CALLS FOR A NARRATIVE:

-UNRESPONSIVE;

b. CALLS FOR A NARRATIVE:
i. Problem: open ended question gives the witness the opportunity to say anything
ii. Questions need to be specific

c. UNRESPONSIVE;
i. Answers need to be responsive.
ii. Remedy is motion to strike

OBJECTIONS TO FORM OF TESTIMONEY AND QUESTIONS:


LEADING QUESTIONS: Cross and Direct examinations:

d. USUALLY NO LEADING QUESTIONS ON DIRECT EXAMINATION:

DEF: A question that suggests the answer

ii. LEADING is ok on CROSS EXAMINATION: On cross examination, need to stay within the scope / subject matter as the direct examination.

iii. Leading OK on direct if
1) Adverse witness
2) Hostile witness
3) Witness needing help

WITNESS USE OF DOCUMENTS DURING TESTIMONY:

REFRESHING RECOLLECTION:

a. Watch for hearsay issues!!!
b. Witness cannot purely read from a document bc of hearsay problems

REFRESHING RECOLLECTION:

i. Witness can silently read the record to themselves

ii. Then can say: now I remember x: witness has to say "now they remember"

iii. This is permissible

iv. Not allowed to read the record to the jury. Dr. is supposedly saying what he is remembering.

v. The opponent may inspect and offer into evidence anything used to refresh

vi. Anything can be used to refresh recollection

RECORDED RECOLLECTION EXCEPTION:

ISSUE: After attempting REFRESHING RECOLLECTION witness still cant remember: What to do now?

i) Actually try to get the hearsay admitted.
ii) Recorded recollection exception:

Elements:
1) The witness once had PERSONAL KNOWLEDGE of the facts

2) The document was made by the witness or under the witness direction or was adopted by the witness.

3) The document was written or adopted at a time when the facts were fresh in the witness's memory

4) The document was accurate when made

5) The witness now has INSUFFICIENT RECOLLECTION to testify as to the matters contained in the document.

OPINION TESTIMONY:

LAY OPINION:

admissible if

1) rationally based on the witness's perceptions
2) and helpful to the Trier of fact.

Cannot be based on scientific or other specialized knowledge.

Helpful: the lay opinion gives jury MORE information than would testimony limited to describing witness' perceptions

Legal conclusions are not helpful.

OPINION TESTIMONY:

EXPERT OPINION:

ELEMENTS:

1) Helpful to the jury:
a) Expert uses specialized knowledge to reach conclusion the average juror could not figure out for herself.

2) Witness must be qualified
a) Specialized knowledge as to the area of expertise / opinion.

3) Witness must believe in opinion to reasonable degree of certainty

4) Opinion must be supported by a properly factual basis
a) Opinion must be based on one of the following:
i) Admitted evidence
ii) Personal knowledge
iii) Inadmissible evidence reasonably relied on

5) Opinion must be based on reliable principles that were reliably applied
a) Peer reviewed and published in scientific journals,
b) has been tested and is subject to retesting,
c) and a low error rate, and
d) has a reasonable level of acceptance.
e) ON THE WHOLE WE ALSO ANALYZE EXPERT OPINIONS ALWAYS LOOK TO THE FACTS TO SEE IF THERE ARE COMMON SENSE PROBLEMS WITH THE OPINION.
i) Look for
-Logical inconsistencies
-Failure to consider all the evidence
-Failure to consider alternative explanations

OPINION TESTIMONY:

EXPERT OPINION:

5) Opinion must be based on reliable principles that were reliably applied

5) Opinion must be based on reliable principles that were reliably applied
a) Peer reviewed and published in scientific journals,
b) has been tested and is subject to retesting,
c) and a low error rate, and
d) has a reasonable level of acceptance.
e) ON THE WHOLE WE ALSO ANALYZE EXPERT OPINIONS ALWAYS LOOK TO THE FACTS TO SEE IF THERE ARE COMMON SENSE PROBLEMS WITH THE OPINION.
i) Look for
-Logical inconsistencies
-Failure to consider all the evidence
-Failure to consider alternative explanations

LEARNED TRISTES HEARSAY EXCEPTION:

LEARNED TRISTES HEARSAY EXCEPTION:
i. A LT
ii. is admissible
iii. to prove anything stated therein
iv. if it is an accepted authority in the field.

EVIDENCE OF WITNESS

CREDIBILITY:

Evidence to support the credibility of a witness

watch out for hidden hearsay issues
i. when a PRIOR STATEMENT of a witness
ii. is offered
iii. to attack or support
iv. credibility!!!

RULES:
1) Evidence to support the credibility of a witness: Inadmissible
i) unless credibility is attacked first.

AFTER ATTACK:
2) Prior consistent statement is not HEARSAY and admissible for ALL purposes
i) if made BEFORE bribe or inconsistent statement.
ii) Otherwise it will be inadmissible for any purpose

iii) Statements inconsistent after bribe not admissible: consistent statements ok

iv). Statements made before bribe admissible for all purposes.
1) To support credibility
2) For substantive purposes

ATTACKING CREDIBILITY: IMPEACHMENT:

Three step approach to admissibility of impeachment evidence:

Three step approach to admissibility of impeachment evidence:

1) Is the source of impeachment
a) extrinsic evidence
or
b) testimony at this proceeding of witness being impeached?

2) If extrinsic evidence
a) is it admissible given impeachment technique?

3) Are there any other foundation requirements for the evidence?

4) Extrinsic Evidence:
a) Any evidence other than testimony given at this proceeding by the witness being impeached.
i) Testimony of other witnesses
ii) Writings

Prior statements of the witness who is now testifying

IMPEACHMENT BY CONTRADICTION:

IMPEACHMENT BY CONTRADICTION:
a) EE
b) inadmissible
c) to contradict on a collateral matter.

d) Collateral matter = a fact not material to the issues in the case that says nothing about the witness' credibility other than to contradict the witness

IMPEACHMENT BY PRIOR INCONSISTENT
STATEMNTS: PIS:

IMPEACHMENT BY PRIOR INCONSISTENT
STATEMNTS: PIS:

a) Admissible to impeach.

b) Not hearsay when offered for that purpose bc just showing he made an inconsistent statement

c) Not admissible to prove SUBSTANCE.

IMPEACHMENT BY PIS of witness who testifies at trial

IMPEACHMENT BY PIS of witness who testifies at trial

a) = not hearsay
i) If that prior statement
ii) was given under oath at trial or deposition

b) This is admissible for all purposes

Prior inconsistent statements given under oath at a trial or deposition is not hearsay. It is admissible to prove everything / impeachment / substance. Difference from above is that the stmt was not made under oath. OTHERWISE = hearsay

c) EE evidence of PIS inadmissible to impeach on a collateral matter.

FOUNDATION REQUIREMNT:
a) When offering EE to show a PIS of a witness, the EE admissible only if witness given opportunity to explain or deny.

Impeachment with evidence of Bias, Interest, Motive.

Impeachment with evidence of Bias, Interest, Motive. Is admissible

Foundation requirement:
i) EE admissible only if witness is given opportunity to explain or deny.

Impeachment with
i. CONVICTION
ii. FOR A CRIME
iii. INVOLVING FALSE STATEMENT / LYING

This is a form of character evidence to impeach

Reasoning:
i) if you have been convicted of a crime involving a false statement, that tells us something about your character we need to know: that you're a liar.
ii) Jury needs to hear about this because they need to evaluate your credibility

RULE:
1) All convictions felonies and misdemeanors
2) for crimes of false statement (Perjury Forgery, Fraud)
i) Are all admissible.

3) No balancing of unfair prejudice against probative value

4) IT SHALL BE ADMITTED TO IMPEACH
except for convictions more than 10 years old.

5) THIS EVIDENCE IS ADMISSIBLE / SHALL BE ADMITTED FOR THE PURPOSE OF
i) IMPEACHING WITNESSES CREDIBILITY AS A WITNESS.

Impeachment with
1) CONVICTION FOR A CRIME
2) NOT
3) INVOLVING FALSE STMT:
4) FELONIES

RULE:
Felonies that do not involve false statement
i) Murder
ii) Robbery
iii) Rape
b) May be admissible to impeach
c) but court may exclude for unfair prejudice

5) Misdemeanors
a) that do not involve
b) false statement are

5) Misdemeanors
a) that do not involve
b) false statement are
c) inadmissible
d) to impeach.

Convictions
i. of the witness
ii. method of IMPEACHMENT P25:
1) EE

Convictions
i. of the witness
ii. method of IMPEACHMENT P25:
1) EE

2) is admissible :
a) COPY OF THE CONVICTION

3) But if more than 10 years from the date of the conviction or release, whichever is later it is inadmissible unless probative value outweighs unfair prejudice.
a) then can balance,
b) and the balance is construed against admissibility.

Impeachment
i. with NON-CONVICTION
ii. MISCONDUCT EVIDENCE
iii. BEARING ON TRUTHFULNESS

1) Acts of misconduct that did not result in a conviction?

2) EE to prove the act admissible?

1) Acts of misconduct that did not result in a conviction
a) are admissible
b) to impeach
c) in both civil and criminal cases
d) if the acts involved lying.

2) EE to prove the acts is inadmissible
a) Impeacher only may cross-examine witness about her misconduct
b) In essence can ask a witness about the times in their life when they have lied.
c) IF HE DENIES IT YOU CANT PROVE HE IS LYING.

3) MUST BE FOR SOME ACT OF LYING.
No other types of non-misconduct misconduct allowed to impeach the witness

Impeachment
i. with REPUTATION AND OPINION
ii. REGARDING TRUTHFULNESS.

Impeachment
i. with REPUTATION AND OPINION
ii. REGARDING TRUTHFULNESS.
1) EE
2) admissible
a) No limitations

REPUTATION AND OPINION
i) concerning truthful character no limits on what is admissible.

HEARSAY:

RULE: Hearsay is usually inadmissible.

When is evidence hearsay?

1) You can tell if evidence is hearsay if you keep in mind why hearsay is inadmissible.

a) It is inadmissible because the speaker (declarant) cannot be cross-examined when she speaks out of o court.

b) Without cross-examination we cannot tell if declarant is lying or mistaken about the facts in her statement.

c) But this is a problem ONLY IF the evidence is used to prove those facts. That's when it is hearsay.

d) If it is used to prove ANYTHING ELSE,
i) we do not need to cross-examine declarant,
ii) because it does not matter if declarant is lying or mistaken about facts we are not trying to prove. This is when it is NOT HEARSAY.

iii) Typically just that the statement was made.

HEARSAY DEFINITION:

1) Out of court statement

2) Offered to prove the truth of the matter asserted

3) In that statement:

HEARSAY ELEMENTS (4)

ELEMENTS:

1) Statement:

2) MUST BE A PERSON

3) OUT OF COURT:

4) OFFERED TO PROVE THE TRUTH OF THE MATTER ASSERTED:

HEARSAY ELEMENTS:

Statement:

1) Statement:

ISSUE: Is there a statement?
i) If no statement then its not HEARSAY

ii) Needs to be some type of assertive conduct.

Gestures ok.

Pointing making an assertion intending to communicate is ok.

HEARSAY ELEMENTS:

Person:

MUST BE A PERSON
a) Things that dogs do cannot be HEARSAY.
Dogs don't lie.
b) Data coming automatically out of a machine cannot be HEARSAY: radar gun.
i) If person had to type it into a machine: then it's a conduit for a person making a statement: and that can be HEARSAY

HEARSAY ELEMENTS:

OUT OF COURT

3) OUT OF COURT:
a) Statement needs to be made out of court (THIS).
b) Testimony from another trial / court room / on the street are considered OUT OF COURT

HEARSAY ELEMENTS:

4) OFFERED TO PROVE THE TRUTH OF THE MATTER ASSERTED:

OFFERED TO PROVE THE TRUTH OF THE MATTER ASSERTED:

a) 3 step approach:

i) Find the statement:

ii) Ask what this is being offered to prove:
Which party is offering it as evidence, and then ask how this would be relevant to that parties case. Then we should know how it is relevant

iii) Ask will the jury be mislead by this evidence if that out of court speaker was lying or was mistaken in what they said

If Yes; then HEARSAY

If no: then NOT HEARSAY

Because then its not being offered to prove the truth of the matter asserted.

STATEMENTS THAT ARE NOT HEARSAY BECAUSE THEY ARE LEGALLY RELEVANT BECAUSE THE STATEMENTS WERE SIMPLY MADE: the mere uttering of the words is what makes the evidence important.

1) NOT HEARSAY BECAUSE STATEMENT HAS INDEPENDENT LEGAL SIGNIFICANCE:

2) NOT HEARSAY BECAUSE STATEMENT
OFFERED TO SHOW EFFECT ON LISTNER:

3) NOT HEARSAY BECAUSE STATEMENT
OFFERED TO SHOW P or D HAD KNOWLEDGE / P WAS ON NOTICE / A WARNING WAS GIVEN

4) NOT HEARSAY BECAUSE STATEMENT
OFFERED TO SHOW SPEAKERS OR WRITER'S KNOWLEDGE OF FACTS STATED:

5) NOT HEARSAY BECAUSE STATEMENT
IS CIRCUMSTANTIAL EVIDENCE OF THE SPEAKERS STATE OF MIND;

1) NOT HEARSAY BECAUSE STATEMENT HAS INDEPENDENT LEGAL SIGNIFICANCE:

1) NOT HEARSAY BECAUSE STATEMENT HAS INDEPENDENT LEGAL SIGNIFICANCE: is relevant for a reason other than to prove the truth of the matter asserted.

Ex: Defamation: that a statement was made.
Uttering the words can create independent legal significance.

2) NOT HEARSAY BECAUSE STATEMENT
OFFERED TO SHOW EFFECT ON LISTENER:

2) NOT HEARSAY BECAUSE STATEMENT
OFFERED TO SHOW EFFECT ON LISTENER:
1. Not hearsay
2. Not offered to prove the truth of the matter asserted, but the effect the stmt would have on the person.

3) NOT HEARSAY BECAUSE STATEMENT
OFFERED TO SHOW P or D HAD KNOWLEDGE / P WAS ON NOTICE / A WARNING WAS GIVEN

3) NOT HEARSAY BECAUSE STATEMENT
OFFERED TO SHOW P or D HAD KNOWLEDGE / P WAS ON NOTICE / A WARNING WAS GIVEN
1. Not hearsay
2. Not offered to prove IT, but instead that warning was given.

4) NOT HEARSAY BECAUSE STATEMENT
OFFERED TO SHOW SPEAKERS OR WRITER'S KNOWLEDGE OF FACTS STATED:

4) NOT HEARSAY BECAUSE STATEMENT
OFFERED TO SHOW SPEAKERS OR WRITER'S KNOWLEDGE OF FACTS STATED:
1. Written thing not offered to prove IT / what it asserts, but instead its offered to prove the person had knowledge of those facts.

5) NOT HEARSAY BECAUSE STATEMENT IS CIRCUMSTANTIAL EVIDENCE OF THE SPEAKERS STATE OF MIND;

5) NOT HEARSAY BECAUSE STATEMENT
IS CIRCUMSTANTIAL EVIDENCE OF THE SPEAKERS STATE OF MIND;
1. Go through 3 steps:
2. Not offered to prove what was asserted
3. But offered to prove state of mind with CE.

6) AN out of court statement can be HEARSAY EVEN IF OUT-OF-COURT DECLARANT IS NOW AN IN COURT WITNESS.
1. Go through 3 steps:
2. Couldn't cross examine her THEN, so its HEARSAY
3) Its different if she tells us what she SAW instead of what she SAID back then.

6) AN out of court statement can be HEARSAY EVEN IF OUT-OF-COURT DECLARANT IS NOW AN IN COURT WITNESS.

1. Go through 3 steps:
2. Couldn't cross examine her THEN, so its HEARSAY
3) Its different if she tells us what she SAW instead of what she SAID back then.

OFFERED TO PROVE THE TRUTH OF THE MATTER ASSERTED:

a) 3 step approach:

OFFERED TO PROVE THE TRUTH OF THE MATTER ASSERTED:

a) 3 step approach:

i) Find the statement:

ii) Ask what this is being offered to prove:
Which party is offering it as evidence, and then ask how this would be relevant to that parties case. Then we should know how it is relevant

iii) Ask will the jury be mislead by this evidence if that out of court speaker was lying or was mistaken in what they said

If Yes; then HEARSAY

If no: then NOT HEARSAY

Because then its not being offered to prove the truth of the matter asserted.

HEARSAY EXCEPTIONS AND EXEMPTIONS TO THE HEARSAY RULE:

Even if the evidence is hearsay under the basic definition it my still be admissible

The FRE creates exemptions to the usual definition of hearsay. Evidence falling within an exemption is admissible because it is NOT HEARSAY. Even where the evidence is HEARSAY, the FRE also provides exceptions that make the hearsay admissible.

Need to distinguish between
1) HEARSAY BUT ADMISSIBLE: Correct answer for EXCEPTIONS
AND
2) ADMISSIBLE BECAUSE NOT HEARSAY. Correct answer for EXEMPTIONS.

Have various levels of out of court statements incased within each other. Anytime looking at multiple hearsay, need to find a way to get each level past a HEARSAY objection, otherwise the whole thing gets tossed out.

EXEMPTIONS;

i. ADMISSION OF A PARTY:

EXEMPTIONS;

i. ADMISSION OF A PARTY:

1) This is an exemption and thus not hearsay.

2) Party Admission =
a) statement by party, or by someone whose statement is attributable to a party,
b) offered by a party opponent.
c) Does not require that the statement be against your interest

3) ELEMENTS:
a) Statement by party
b) Offered by their opponent

4) This is NOT HEARSAY

5) Not subject to
a) Personal knowledge requirement
b) And
c) Limits on opinion

EXEMPTIONS;

ii. VICARIOUS PARTY ADMISSIONS:

ii. VICARIOUS PARTY ADMISSIONS:

1) Statements made by a non party but treated as if the party made it

2) This happens when: Statement by an authorized spokes person of party. Can be an implied or express authorized spokesperson.
i) Or employee of party concerning matter within scope of employment and made during employment relationship

3) Other VICARIOUS PARTY ADMISSIONS:
a) Adoptive admission: non party makes statement and the party indicates belief in its truth
b) Co-Conspirator statement (made during course and in furtherance of conspiracy).

4) All are not hearsay.

EXEMPTIONS from the usual HEARSAY definition

In addition to party admissions, there are the following there EXEMPTIONS from the usual HEARSAY definition.

1) These exemptions apply
a) to an out of court statement
b) from a declarant
c) who now testifies at trial
d) if the statement fits into 1 of the 3 categories:

i) Prior inconsistent statement given under oath at trial or deposition

ii) Prior consistent statement offered to rebut a charge of recent fabrication or improper influence or motive:

iii) Statement of identification of a person
made after perceiving the person:

All three of these are NOT HEARSAY under the FRE

FRE HEARSAY EXCEPTIONS:

i. FORMER TESTIMONY

ii. DECLARATION AGAINST INTEREST

iii. DYING DECLARATION

iv. EXCITED UTTERANCE

v. PRESENT SENSE IMPRESSION

vi. FOR DECLARATION OF THEN EXISTING PHYSICAL OR MENTAL CONDITON.

vii. STATEMENT OF PAST OR PRESENT MENTAL OR PHYSICAL CONDITION MADE FOR MEDCIAL DIAGNOSIS OR TREATMENT

viii. BUSINESS RECORDS

ix. PUBLIC RECORDS
JUDGEMENT OF PREVIOUS CONVICTION

x. JUDGEMENT OF PREVIOUS CONVICTION

EXCEPTIONS:

i. FORMER TESTIMONY

EXCEPTIONS:

FORMER TESTIMONY:

Testimony given by a person in earlier
i) proceeding
ii) or
iii) deposition

b) is admissible

c) if 1 of 2 applies:
i) The party against whom the testimony is now offered had,
a) during the earlier proceeding an opportunity to examine that person and
b) the motive to conduct that exam was similar to the motive the party has now.

ii) Or

iii) In a CIVIL case, the party against whom the testimony is now offered was not present in the earlier proceeding
a) but has a close privity-type relationship with someone who was a party to that earlier proceeding (a predecessor in interest)
b) and who had an opportunity and
c) a similar motive to examine the witness in that earlier proceeding.

iv) IN EITHER CASE: DECLARANT MUST BE UNAVAILABLE:

Declarant is unavailable if:

1. Court exempts declarant from testifying due to privilege.

2. Declarant is dead or sick.

3. Proponent of statement cannot procure declarant's attendance by process or other reasonable means.

4. Declarant refuses to testify despite court order.

5. Declarant's memory fails.

had an OPPORTUNITY TO EXAMINE:

Fair to admit evidence if the party had a chance in the first case to cross examine the witness in the 1st case, and the witness is UNAVAILABLE now.

SIMILAR MOTIVE TO EXAMINE:

The party had a similar motive to examine that witness then and now. The motives behind the questioning need to be similar.

1. Issues need to be the same / similar.

DEPOSITION TESTIMONY:

ISSUE: How do you handle former testimony when its taken in the same case in a deposition?

The former testimony was given in a deposition in this case, and now its being offered in this case at trial because the witness is unavailable

The former testimony was given in a deposition in this case, and now its being offered in this case at trial because the witness is unavailable

Is admissible

Parties the same

Motives similar

Typically, a deposition taken in a given case is admissible in the trial of that case if the party was there

PREDECESSOR IN INTEREST SITUATION:

Someone who is a close privity type of relationship against who that evidence is now being offered today.

Need relationship between the parties for the former testimony to be admissible

ii. DECLARATION AGAINST INTEREST
EXCEPTION:

a) HEARSAY statement
b) is admissible

i) if, at the time it was made, it was against the financial interest of declarant or would have subjected declarant to criminal liability.

ii) If the statement is offered to exculpate accused (by showing someone else confessed to the crime), there must be corroborating evidence to admit the statement.

iii) DECLARANT MUST BE UNAVAILABLE

iii. DYING DECLARATION

EXCEPTION:

HEARSAY STATEMENT:
i) by one believing he is about to die
and

ii) describing cause or circumstances leading to impending death

iii) is admissible in civil action and in homicide prosecution.

iv) Declarant need not die but must be unavailable.

EXCITED UTTERANCE

1) EXCEPTION:

a) HEARSAY statement
b) relating to startling event or condition
c) is admissible
i) when made while declarant
ii) was still under stress of excitement
iii) caused by that event or condition.

d) No need to show Declarant unavailable.

e) The key here is the emotional state of the speaker.

v. PRESENT SENSE IMPRESSION

1) EXCEPTION:

a) HEARSAY statement
b) is admissible
i) if describing or explaining
ii) an event or condition
iii) made while declarant was perceiving the event or condition or immediately therafter.

c) No need to show declarant unavailable.

vi. EXCEPTION

1) FOR DECLARATION OF THEN EXISTING PHYSICAL OR MENTAL CONDITON.

a) HEARSAY statement
b) of declarant's
c) then existing physical or mental condition or state of mind
d) is admissible

i) to show the condition or state of mind.

ii) But a statement describing a memory or belief is NOT admissible to prove the fact remembered or believed.

Thus "I remember / believe that the defendant shot the victim" is not admissible to prove defendant shot the victim

e) No need to show declarant unavailable.

f) Cant be I REMEMEBER or about an external fact.

g) Statement is admissible to prove intention, and its admissible for the the jury to infer the actions in accordance with the intention. Ca

h) Only applies to present statements.

vii. EXCEPTION FOR STATEMENT OF PAST OR PRESENT MENTAL OR PHYSICAL CONDITION MADE FOR MEDCIAL DIAGNOSIS OR TREATMENT:

a) HEARSAY statement by one person
b) concerning the past or present
c) mental or physical condition or its cause.
d) of that person or any other person
1. is admissible
2. if made for and pertinent to medial diagnosis or treatment.

e) No need to show declarant unavailable.

f) Applies to either past or present medical conditions / causes

vii. EXCEPTION FOR STATEMENT OF PAST OR PRESENT MENTAL OR PHYSICAL CONDITION MADE FOR MEDICAL DIAGNOSIS OR TREATMENT:

ISSUE: ACTION FOR MEDIAL MALPRACTICE:

i) Child: My head hurts

ii) Mom: My son has a temperature of 103 and he says his head hurts

This is multiple hearsay. Need to get each level of hearsay covered by an exception

1. Childs stmt to mom is admissible under 6 and 7. (Present sense impression / Medical diagnosis: talking to mom because mom says she is calling the Dr.)

2. Mom's statement: "or any other person" so when mom makes the statement it is covered by the exception. Exception 7 works. Temperature reading: It's a machine. Don't need another hearsay exception for that. Need to show its relevant and in working order

viii. BUSINESS RECORDS

EXCEPTION:

a) HEARSAY
b) is admissible if it is
i) A record of events, conditions, opinions or diagnoses
ii) Kept in course of regularly conducted business activity
iii) Made at or near time of matters described
iv) By person with knowledge of facts in that record
v) It was regular practice of business to make such record

c) Court may exclude if untrustworthy

d) No need to show declarant unavailable

BUSINESS RECORDS EXCEPTION CAN COVER MULTIPLE LEVELS OF HEARSAY

SO LONG AS....

1) EVERY PERSON CONTRIBUTING A LEVEL OF HEARSAY

2) IS AN EMPLOYEE ACTING

3) IN THE COURSE OF BUSINESS.

Records created in anticipation of litigation are not admissible under the BUSINESS RECORDS EXCEPTION

ix. PUBLIC RECORDS

EXCEPTION:

a) HEARSAY record
b) of a public office (MUST BE A PULIC SERVANT MAKING THE STATEMENT)
c) is admissible if within one of the following 3 categories

i) Record describes activities and policies of the office

ii) Record describes matters observed pursuant to duty imposed by law. (but not police reports in criminal cases / civil ok)

iii) Record contains factual findings resulting from investigation made pursuant to authority granted by law, unless untrustworthy.

d) In a criminal case, prosecution cannot use number 3:.

e) No need to show declarant unavailable.

x. JUDGEMENT OF PREVIOUS CONVICTION

EXCEPTION:

a) HEARSAY
b) statement describing
c) a felony conviction (copy of judgment of conviction)
d) is admissible
e) in both
i) civil
ii) and criminal cases

f) to prove any fact essential to the judgment,

i) but when offered by prosecution

ii) for purposes other than impeachment,
judgments against persons OTHER THAN THE ACCUSED are inadmissible.

No need to show declarant unavailable.

CONFRONTATION CLAUSE:

Crawford v. Washington

Even if hearsay law does not make the evidence inadmissible the CC of the US CONSTITUTION might make inadmissible an out of court statement offered by the prosecution against defendant in a criminal case.

Under Crawford v. Washington,
1) the CC excludes
a) an out-of-court statement
b) if declarant does not testify at the trial,
c) is now unavailable,
d) the statement is "testimonial"
e) and defendeant had no chance to cross-examine declarant
f) about the statement
g) when it was made.

TESTIMONIAL STATEMENTS: meaning:

The full meaning of testimonial is unclear,
a) but it at least applies
i) to statements made in court and
ii) statements made to further a police investigation aimed at producing evidence for prosecution.

b) Statements to police deal with an ongoing emergency are non-testimonial and their admission does not violate the CC.

c) Fit within the former testimony exception then you meet the requirements of the CC

WRITINGS AND OTHER PHYSICAL EVIDENCE:

AUTHENTICATION:

i. every item of non-testimonial evidence
a) Writings
b) Photos
c) Guns

ii. Must be authenticated: this means proving it is what the proponent of that evidence claims to be

iii. Burden of proof is LOW "sufficient to sustain a finding": jury gets to hear all conflicting evidence and decide for itself.
a) The burden is low.

ISSUE: How do you authenticate a letter: need to authenticate the SIGNATURES: Can authenticate a signature by

a) A party admission
b) Eyewitness testimony
c) Expert opinion
d) Lay opinion
e) Circumstantial evidence
i) Ancient documents rule:
f) A genuine exemplar
g) Plaintiff authenticates the letter in one of the ways described above. Defense experts and lay witnesses dispute signature is Ds.

i) Ancient documents rule:

Authenticity is established if

1. Document is 20 years old or more
2. Does not on its face present any irregularities
3. And was found in a place of natural custody

SELF-AUTHETNICATING WRITINGS:

i. For certain writings, authentication is unnecessary. These include

1) Certified copies of public documents (deeds)
2) Acknowledged documents
3) Official publications
4) Newspapers
5) Periodicals
6) Business records
7) Trade inscriptions: Tag or label that purports to have been attached in course of business and indicates ownership, control, or origin.

AUTHENTICATION OF PHOTOS:

Watch for personal knowledge problem.

ISSUE: Does the witness we are using to authenticate the photo have the personal knowledge needed to answer the questions being posed about it?

a) Does the fact the witness testified to = the fact they perceived?

b) EX: is this the traffic intersection? Yes... if witness knows then this is ok

c) Specific information about how the photo was taken: no: need the photographer to answer those questions.

AUTHENTICATION OF NON-UNIQUE ITEMS:

i. Items that by their facial appearance are indistinguishable from other like items.

ii. Fungible items.
1) Need to lay a chain of custody tracing that item from the Ds pocket to the court room so you can prove this is the specific item you claim it to be.

2) Put all the people on the stand.... Follow the item to the courtroom.

3) Small breaks are not a problem because the burden of proof is low. SUFFICIENT TO SUSTAIN A FINDING

4) Big breaks are a problem.

5) Only need to lay a chain of custody if it is non-unique

6) If unique you don't need to lay a chain of custody.

7) Generic items made unique with an indelible mark are then no longer generic and don't need a chain of custody

BEST EVIDENCE RULE:

i. Applies only where evidence is offered to prove the contents of a writing.

Writing includes
a) Documents
b) Videos
c) Photos
d) x-rays
e) Audio recordings
f) Computer disks
g) Or any tangible collection of data.

RULE: The rule requires the original, but with exceptions.

WHEN DOES THE BER APPLY?

2 situations:
1) Where the case depends on the contents of a legal instrument / document
Ex: case turns on contents of a writing / K.

2) Have a witness testifying as to a fact, but her knowledge about it is only based on her reading about it.
i) Document / Letter indicating motive for crime.

To create a best evidence problem; a witness must be telling us what is in a writing that they read.

BER: VOLUMINOUS DOCUMENTS

EXCEPTION:

1) If documents are voluminous,
2) witness can testify / summarize their contents
3) if the originals are available for inspection.

vii. ISSUE: Assuming the best evidence rule applies, what type of evidence is admissible to prove the contents of a "writing"

1) Originals:
a) computer printouts and in the case of public documents, certified copies are considered originals

2) Duplicates
a) usually also admissible.
b) DUPLICATE" a copy of original produced by same impression that produced the original: a carbon copy or by machine.

3) Testimony
a) regarding the contents of a writing
b) may be admissible
c) where the original was lost or destroyed,
d) unless
i) bad faith
ii) by proponent of testimony.

EXCEPTION TO ADMISSIBILITY OF DUPLICATES OR OTHER WRITTTEN EVIDENCE THAT IS NOT ORIGINAL:

i) THIS EVIDENCE IS NOT ADMISSIBLE WHERE THERE IS A GENUINE QUESTION AS TO THE AUTHENTICITY OF THE ORIGINAL.

ii) So we need the original to see if it has been altered.

PRIVILEGES:

a. The FRE give the courts power to establish privileges.

b. The federal courts recognize
i. Attorney client
ii. Spousal
iii. Psychotherapist-patient
iv. And social worker.
v. In civil actions under diversity jurisdiction, state privileges apply in federal court.

Attorney client:

Privilege

i. A communication
1) between attorney and client
a) or their representatives

2) intended by client to be confidential

3) and made to facilitate legal services

4) is privileged in all civil and criminal proceedings

5) unless waived by the client.

Attorney client:

Privilege

ii. Corp employee:

1) privilege applies to employees to attorney if the corp authorized the employee / agent to communicate with the lawyer.

ISSUE: Communications by and between what people are privileged?

1) Client to dr hired by lawyer?

1) Client to dr hired by lawyer?
a) Yes:
b) clients stmts to dr protected by attorney client privilege. Documents sent to attorney by Dr. are protected.

c) Anyone the attorney hires to help prepare the case is a rep, and the communications are protected.

2) Attorney representatives to attorney is protected so long as intended by client to be confidential and facilitate legal services

iv. Communication must be intended by client to be confidential:

1) Objective standard of intent:
a) as would a reasonable person in the clients position by action intend their stmt to be confidential.

2) PHONE COMMUNICATIONS:

a) privileged: bc a reasonable person in the clients position can not tell someone is listening in if they are not visible.

3) Statements made in front of others:
a) stmt by client in front of attorney's agents:

privilege still exists.

v. Purpose must be professional legal services for privilege to exist.

1) Informal social conversation is not privileged.

2) Only communications in a professional context are privileged.

Attorney client privilege survives?

vi. This is a strong privilege, and it survives lots of bad stuff.

1) Communication survives after client fires attorney

2) Survives clients death

vii. Attorney client privilege does not apply where

1) Professional services sought to further
a) what client knew or should have known
b) to be a crime or fraud or

2) communication relates to alleged
a) breach of duty
b) between lawyer and client
c) (attorney can defend him / herself in re a breach of duty claim)

3) Two or more parties consult an attorney
a) on a matter of common interest and
b) the communication is offered by one of these parties against another.

Psychotherapist-patient / social worker - client:


Privilege

i. A communication between psychotherapist and patient or licensed social worker and client,

ii. intended by patient / client to be confidential and

iii. made to facilitate rendition of professional psychological series

iv. is privileged

v. in all civil and criminal proceedings
1) unless waived by the patient / client.

vi. Same basic rules as for attorney-client privilege.
1) Patient/client must have intended that communication be confidential and purpose of communication must have been to facilitated professional services.

Doctor-patient privilege;

i. There is no dr -patient privilege under the FRE but most states like CA have adopted the privilege.

ii. In federal court action arising under diversity jurisdiction, you will apply state privilege law on the MBE.

iii. Also sometimes an MBE questions will assume the existence of the dr. patient privilege.

iv. Def:
1) A patient has a privilege
2) to prevent disclosure of information
3) confidentially conveyed to a physician

a) where the patient conveyed the information
b) for the purpose of obtaining diagnosis or treatment
c) and the information was pertinent to diagnosis or treatment.

d) Information must be intended by patient to be confidential.
1) Anything said to expert witness dr is not confidential because they will have to testify in court.
2) Information conveyed to Dr. must be pertinent to diagnosis or treatment.

Doctor-patient privilege;

EXCEPTIONS:

EXCEPTIONS:
a) Privilege does not apply

i) Where the patient puts his physical condition in issue, as in a personal injury suit

ii) Where physician's services sought to aid in crime or fraud or to escape capture after a crime or tort

iii) In case alleging breach of duty arising out of physician-patient relationship as in a malpractice action.

iv) Some states / CALIFORNIA do not recognize the privilege in criminal cases.


Privilege is very limited then.

SPOUSAL PRIVILEGES:

i. Spousal testimonial privilege

ii. Spousal confidential communication privilege

iii. For both privileges,
1) there must be a legally valid marriage.
2) Neither privilege applies in civil action between spouses or in criminal prosecution where one spouse is charged with a crime against the other spouse or one of their kids.

SPOUSAL PRIVILEGES:

i. Spousal testimonial privilege

i. Spousal testimonial privilege

1) permits witness to refuse to testify against his/her spouse as to anything.

2) Applies only in criminal cases

3) TESTIMONIAL PRIVILEGE applies so long as they are married at the time of the TRIAL. Even if the trial is about an event that occurred before they got married.

4) This privilege is held by the witness.

5) The privilege is held by the witness. If spouse wants to testify the D cannot stop it.

SPOUSAL PRIVILEGES:

ii. Spousal confidential communication privilege

ii. Spousal confidential communication privilege

1) protects confidential spousal communications during marriage. Applies in both criminal and civil cases

2) Confidential communications made during the marriage are privileged even if divorced at trial, then it is still protected.
a) The key moment in time is when the communication was made.
b) If it was made at time of marriage then its still protected.

3) Privilege is in the hands of either spouse. Even if she wants to waive it, he can claim the privilege and stop her communication.

JUDICAL NOTICE:

a. Process of establishing facts without presenting evidence.

b. Two issues:
i. Facts appropriate for judicial notice?

ii. Procedure for taking judicial notice?

c. Facts appropriate for judicial notice:

i. Courts can take judicial notice of facts not subject to reasonable dispute because they are either

1) Generally known within the jurisdiction
2) Or capable of accurate and ready determinate by resort to sources whose accuracy cannot reasonably be questioned.

d. Procedure for taking judicial notice:

i. Party must request judicial notice to compel judicial notice and if not requested, court has discretion to take judicial notice.

ii. If requested in civil case, court instructs jury it must accept noticed fact as conclusive.

iii. In criminal case, court instructs jury it may but is not required to accept judicially noticed fact.

iv. Judicial notice may occur at any time, even on appeal.

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