Evidence Flashcards
Exceptions when fed courts apply state law
-privilege law in diversity cases
When do federal rules not apply>
Apply in all fed court proceedings except:
- Preliminary fact determinations relating to admissibility by judge
- Grand jury proceedings
- Other misc. proceedings (sentencing, extradition, vail, warrant, probation, prelim examination in criminal)
For evidence to be relevant, it must be:
- Material: relevant and significant to issues in the case
- Probative: some ability of the evidence to prove something
-(just need to shift the probabilities slightly)
General rule of admissibility
irrelevant evidence is ALWAYS inadmissible
all relevant evidence is admissible EXCEPT:
-kept out by some evidence rule, or
-court uses Rule 403 discretion to exclude it
Rule 403
even if evidence is relevant a judge can decide not to allow it if it could cause more harm than good (balancing test)
- Unfair prejudice
- Confusion of issues
- Misleading jury
- Undue delay
- Waste of time
- Repetitive evidence
Prior similar occurences?
Generally Inadmissible
May be admissible to show something other than carelessness:
-evidence that person has made previous false claims
-prior accidents involving same body part when causation at issue
Similar accidents or injuries caused by same event or condition?
Generally inadmissible UNLESS evidence of prior accidents/injuries caused by the same event or condition and occurring under SUBSTANTIALLY SIMILAR CIRCUMSTANCES is admissible to prove:
- existence of a dangerous condition,
- that the dangerous condition was the cause of the present injury, and
3, the defendant had notice of the dangerous condition
-lack of complaints can show that the D lacked knowledge of the danger
Previous similar acts admissible to prove intent
admissible to prove the party’s present motive/intent in the current case
(in a sex discrimination case, can show that the other party hired no other women)
Rebut a claim of impossibility
similar occurrences admissible to rebut claim that occurrence at issue was not impossible (D’s claim that car won’t go over 50 mph can be rebutted by showing occasions where it has gone over 50 mph)
Habit and Business Routine Evidence (Character Evidence)
Evidence of a person’s habit is admissible to show that the person acted in accordance with the habit on the occasion. 2 defining characteristics of habit:
1. frequency of conduct and
2. particularity of circumstances
NOT character evidence
-describes someone’s general disposition or propensity w/ respect to general traits
Evidence excluded for public policy reasons: liability insurace
Inadmissible to prove negligence/wrongful conduct.
However may be admissible for:
1. prove ownership/control if disputed
2. to impeach a witness
3, part of an admission of liability (“don’t worry y insurance will pay it off”)
Evidence excluded for public policy reasons: subsequent remedial measures
Evidence of repairs or other precautionary measures made following an injury is inadmissible to prove negligence, culpable conduct, defect, or need for warning or instruction UNLESS:
- prove ownership/conduct if disputed
- to rebut a claim that a precaution was not feasible
- to prove that the opposing party has destroyed evidence
Evidence excluded for public policy reasons: civil settlements and settlement negotiations and exception
evidence of a settlement or an offer to settle a civil claim is not admissible to:
- prove validity or amount of a disputed claim
- impeach by prior inconsistent statement/contradiction (impeachment w/ bias permitted)
EXCEPTION: conduct/statements in civil negotiation w/ government admissible in criminal case
Whats all the evidence that may be excluded for policy reasons?
- liability insurance
- subsequent remedial measures
- settlement offers/negotiations
- offers to pay and payment of medical expenses
- withdrawn guilty pleas and offers to plead guilty (always inadmissible: offers to plead guilty, withdrawn guilty please, no-contest pleas, statements in plea discussions)
When does the public policy exclusion for settlements and negotiations only kick in?
If there was a claim or some indication that a party was going to make a claim. ALSO the claim must have be in dispute as to either:
- Validity OR
- Amount
What does character evidence refer to and when may it be offered?
A person’s general propensity or disposition (e.g. honesty, fair, anger).
It may be offered as substantive evidence (to prove a fact at issue in the case) for:
- to prove persons character when directly in issue (RARE) OR
-character is an essential element
2.Prove how person probably acted (conduct in conformity/propensity evidence)
- Truthfulness may be offered for impeachment
CANT BRING UP PAST EVENTS
Methods of proving character
- specific acts
- opinion testimony of a witness who knows the person
- reputation testimony, (gen. reputation in community)
Defendant’s character in a criminal case
Prosecution can’t initiate evidence of D’s character, but the D can. But once he does, the prosecution can rebut with character evidence
character witness cab testify for Ds good reputation for a pertinent trait and can give their personal opinion
Victim’s character in a criminal case
-When can D initiate
character evidence is inadmissible to show that the
defendant had propensity to commit the crime at issue. That includes evidence that the defendant had committed a similar act or crime in the past. However,
this evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
-Except in sexual assault cases, D may introduce reputation/opinion evidence of a bad character trait of victim when its relevant to show D’s innocence (usually violence to support self-defense claim)
Victim’s character in HOMICIDE case, initiated by prosecution
if D claims self-defense evidence of any kind that victim was first aggressor, it opens doors to evidence of victim’s good character for peacefulness
ONLY WHEN D BRINGS IN A CHARACTER WITNESS, unless victim is dead
Victim’s character In sexual assault cases
Generally inadmissible except
in criminal cases: to prove different source of injury or physical evidence (that semen, injury, etc. is NOT defendants) or to show consent between victim and defendant is admissible if its not excluded by any other rules
In civil cases: evidence of victims sexual behavior when not excluded by any other rules and PROBATIVE VALUE SUBSTANTIALLY OUTWEIGHS UNFAIR PREJUDICE
Character evidence in civil cases
character evidence is inadmissible, unless:
CHARACTER IN ISSUE: when a person’s character itself is a central issue in the case (defamation, employment, custody.
-Exception is sexual violence, when evidence of prior acts of sexual violence are allowed.
IMPEACHMENT: to challenge credibility of a witness to show they are not trustworthy or lied
HABIT EVIDENCE: to demonstrate a person’s routine practice, which is a consistent response to a SPECIFIC SITUATION, not just general character
When permitted then: may come in as opinion, reputation, and specific acts, whether on direct or cross.
MIMIC character evidence
exceptions to the general prohibition against using evidence of a person’s prior bad acts solely to prove that the person has a propensity to commit the crime currently being tried. These exceptions are:
Motive (reason to commit crime)
Intent
Mistake (or absence of mistake) (was act deliberate or accidental)
Identity (identity of perp)
Common plan or scheme
These exceptions allow the prosecution (or sometimes the defense) to introduce evidence of prior acts not to show that the person is bad or has a bad character, but rather to establish specific relevant facts that are important to the case at hand.
When can P bring in character evidence?
- sex cases
- when D has offered evidence about victim’s character, P can rebut but it must be for the same trait
-cross-examine D’s character witness by asking specific acts of the defendants that show the D’s bad character, (“Have you heard” or “did you know”)
*limited to inquiry can’t bring in extrinsic evidence - P can rebut with evidence for a pertinent character trait once D brings in character evidence about their own conduct
- If a D in a homicide case is alleging self defense, P can bring in evidence about victim’s peacefulness
On direct examination how may character evidence be brought in?
presented only as opinion or reputation evidence?
On cross examination how may character evidence be brought in?
s opinion, reputation, or through specific acts, but no
extrinsic evidence is permitted. That means that it only comes in through the
testimony of the witness, not through evidence of the act at issue.
How to evaluate a character evidence issue?
- Where
-Where is the case being heard, criminal/civil? - What
-What sort of evidence is being offered? Is it evidence of a past conviction? Is it a non-criminal wrongful act? - Why
-Why is it coming in? To show propensity? To show motive, plan, or intent? To impeach credibility? - Who
-Against whom? If P is bringing it in, did D already open the door? Or does it fall into an exception where P does not need to wait for D to initiate? - When
-When is it coming in? On direct or cross? - How
-How is it being offered? As an opinion? As
reputation evidence? As evidence of a specific Instance? Is it being brought in through extrinsic evidence?
In a civil case, when character is directly in issue, that character may be proved by evidence in the form of:
Reputation, opinion, specific acts
In order for a defendant’s prior misconduct to be admissible for some relevant non-character purpose (motive, intent, etc.), there must be:
Sufficient evidence to support a jury finding that the defendant committed the prior misconduct
Prior misconduct evidence is inadmissible if the danger of unfair prejudice __________ the probative value.
Substantially outweighs
Authentication of writings and spoken statements
a writing or any secondary evidence of its content will not be allowed unless the writing is authenticated by proof. Proof must be sufficient to support jury finding of genuineness
Ways in which authentication methods are allowed
Methods Allowed:
1. Opponent’s admission
2. Eyewitness Testimony
3. Handwriting verification by expert, witness, fact finders comparison
4. ancient documents
5. Reply letter doctrine (response to a communication sent to author)
6. photographs and videos (identified by witness, doesn’t need photographer)
7. xrays, etc. (can’t be verified by witness, must show machine and process was working correctly)
Ancient Documents
-20 years old,
-was found in a place where such a writing would be kept,
-non sus condition
Authentication of oral statements
- Voice identification
-Anyone who knows - Telephone
Telephone conversation voice authentication
-anyone who testifies that
(1) they recognize the voice;
(2) speaker had knowledge of certain facts only that person would know;
(3) called a particular persons number and a voice answered as that person OR
(4) called a business and talked about biz matters
Best evidence rule definition
Under the Best Evidence Rule, a party must provide the original document, or a reliable duplicate, when a witness,
(a) testifies to the contents of the writing; or
(b) testifies to knowledge gained
solely from a writing.
It’s important to note that the Best Evidence Rule applies
to any writing, recording, or photograph.
When does the best evidence rule apply?
- where writing creates rights and obligations
- where witness’s knowledge results from having seen the writing
How do we know a duplicate is reliable?
A reliable duplicate is one that accurately reproduces the
original document, such as a photocopy. However, it’s important to note that
handwritten copies are not admissible under the Federal Rules of Evidence.
Exceptions to best evidence rule
When an original doc or reliable duplicate is not required to prove their content if:
- all the originals are lost/destroyed and not through bad faith of the offering party
- original can’t be obtained by judicial process
- not produced after proper notice was given to the party in control & against whom it would be offered against; OR
- it’s not closely related to the controlling issue
If any of these exceptions apply, witness can testify about contents
Competency requirements for witnesses
personal knowledge
oat or affirmation to testify truthfully
*interpreter needs to be qualified and take an oath
Modern modifications of CL disqualifications
Children: case-by-case
Insane: allowed if they understand obligation and can tell truth
Judges and jurors: not allowed (presiding judge) unless exception fo rpast verdict
Jurors-inquiry into past verdict or indictment
Jurors generally not allowed to testify about deliberations or matters affecting vote but may testify as to:
- extraneous prejudicial info
- outside influence
- mistake in verdict form
- another juror’s clear statement that they relied on racial stereotypes
Dead mans act
in STATE CIVIL cases, some states
typically interested person not allowed to testify against decedent’s estate/successors about any personal transaction or communication w/ the deceased
no federal rule, only applies when fed cases use state law under Erie
Leading Questions
generally only allowed on cross not direct. court will only allow on direct if:
- preliminary or introductory matters
- witness needs help responding
- witness is hostile, adverse party or affiliated w/ adverse party
When can documents be used to aid oral testimony?
- refreshing recollection
(can’t read from the writing)
-but adverse party can have (1) writing produced, (2) cross-examine witness with it, (3) introduce portions into evidence
General scope of cross
- scope of direct and
- matters that test witness’ credibility (impeachment)
When can a recorded recollection be submitted into evidence?
- witness has insufficient recollection
- witness has personal knowledge when record was made
- record was made by witness, made under witness’s direction, or adopted by witness
- record was made when matters were fresh in witness’s mind
- record accurately reflects knowledge (witness vouches for it)
After it is allowed to be read into evidence, but can’t be admitted as an exhibit unless offered by adverse party. just a substitute for the witness testimony
Opinion testimony
only allowed if the court is sure that it will be necessary or helpful
Lay (nonexpert) opinion testimony:
admissible if:
1. rationally based on witness’s perception
2. helpful, and
3. not based on specialized knowledge
Expert witness
1. helpful
2. based on sufficient facts/data
3. reliable
4. specially qualified
situations where opinions of lay witnesses are NOT admissible
can’t give opinion as to whether they or someone else acted as an agent or whether a contract was made. because they are legal conclusions
Proper factual basis for expert testimony
- Facts based on expert’s own observation
- Facts made known to expert at trial
- Facts supplied to expert outside courtroom that are of a type reasonably relied upon by other experts in field
Factors court uses to determine reliability of expert testimony (daubert)
- testing or principle or methodology
- rate of error
- acceptance by other experts in same discipline
- peer review and publication
Learned Treastise
scholarly treatise, periodical or pamphlet MAY be used to impeach experts or substantive evidence
can be offered under a hearsay exception if:
1. treatise established as reliable authority
2. treatise called to expert’s attention on cross or relief upon by expert on direct, and
3. excerpt read into evidence (not received as exhibit)
exclusion and sequestration of witnesses
upon a party’s request the judge MUST order witnesses excluded from the courtroom. Judge can also do this on their own. They can’t exclude:
- a party/designated officer/employee of a party,
- a person whose presence is essential to the presentation of a party’s claim/defense
- a person statutorily authorized to be presented
Only proper objection to a testimony of an ultimate issue
Defendant’s mental state in a criminal case
What can a court do on their own regarding witnesses?
- call their own expert witness
2, call its own witness - examine a party’s witness
What does impeaching a witness mean?
Attempts by opposing counsel to discredit a witness or call into question their credibility. They do this by presenting evidence/asking questions that may show their testimony was biased, inconsistent, or untrue.
Character impeachment
whether or not the witness is credible.
- Bias
-bias, motive, partiality, or corruption - Character for truthfulness
- Evidence for a witness’s conduct (prior bad acts)
Character for truthfulness Impeachment
-on cross exam
Introduction of two things:
(1) reputation testimony about witness’ honesty; or
(2) opinion testimony
-evidence is admissible but can only be introduced if and when the witness’s character for truthfulness is attacked.
*Once introduced, other side can introduce positive character evidence
Specific instances of conduct for a witness’s conduct for impeachment
-only in specific circumstances
-may be attacked w/ specific instances of prior bad acts ONLY if conduct is probative of witness’s character for honesty
-extrinsic evidence is NEVER admissible, ONLY TESTIMONY
Can prior convictions be admitted to impeach a witness?
Only in certain circumstances unless exceptions apply:
1. crimes involving dishonesty are always allowed to impeach a witness (NOT theft)
2. non dishonest misdeameanors-not allowed
3. some felonies: ONLY if witness is not the defendant
(1) if probative value of evidence is substantially outweighed by the danger of unfair prejudice. (subject to rule 403)
-ONLY CIVIL
(2) if witness is defendant, then only criminal. but probative value outweighs any prejudicial effect.
Exceptions to the admission of prior convictions for impeachment
- 10 year exception (10 years pass- not allowed) unless:
(1) probative value outweighs its prejudicial effect and
(2) the proponent provides reasonable written notice to the adverse party
-requires reasonable written notice be given to the opposing party if the evidence is going to be admitted - Pardon/Annulled convictions
Impeachment of the testimony definition
Is the information reliable, trying to show that what the witness is saying is unreliable in this instance and shouldn’t be believed–not trying to say the witness is unreliable just the testimony
Rule for how counsel can properly question a witness’s testimony
Prior inconsistent statements
Prior inconsistent statements to impeach a witness’s testimony
-admissible to impeach a witness
-if witness says 1 thing, counsel has example of something diff they can introduce. must show to attorney upon request but not to witness
-extrinsic evidence may be admissible if:
(1) it is relevant to a material issue at trial (issue OTHER than the witness’ credibility); and
(2) proper foundation is shown, (witness is first given an opportunity to explain or deny the statement and adverse party is given opportunity to examine witness about it)
What is hearsay?
Hearsay is an out-of-court statement made other than the declarant offered for the truth of the matter asserted
Two parts:
1. Is statement being made outside of current court?
-spoken, writing, gesture
-statement must convey something
-has to be human
- Is the statement being offered in order to show that the statement is true?
-take the words literally
-e.g. friend saying “your house is chilly” in a lawsuit against your landlord for not fixing the heater
What is Non-hearsay
-statement being offered as circumstantial evidence of a defendant’s state of mind (proving insanity/knowledge/murder=passion)
-statement offered to show its effect on listener or reader (show notice or knowledge)
-verbal acts of legal significance or legally operative facts (words of contract/defamatory words)
Hearsay within hearsay
admissible only if each hearsay statement falls within an exception.
*look for an out-of-court declarant who repeats or transcribes another person’s statement
-e.g. witness says john told me that mary said she was fine (john and mary are two hearsay declarants)
-plaintiff offers a police report that says “eyewitness reports that the truck driver was speeding” (police officer and eyewitness are the two hearsay declarants)
Prior statements of testifying witness
A witness’s own prior out of court statement is hearsay and is inadmissible unless an exception applies
(e.g. I told the cops when they arrested me that I didn’t do it)
Hearsay exclusions-certain prior statements by testifying witnesses who are subject to cross examination (out of court statements)
NOT hearsay if:
- prior statements of identification
2.prior inconsistent statements made under oath - certain prior consistent statements:
-when witness charged w/ lying/exaggerating due to recent motive & statement pre-dates motive
-when witness impeached on other non-character ground
Hearsay exclusions-statements by opposing party
- statements by or attributable to an opposing party are not hearsay (overhearing what an opposing party says and repeating it)
- formal statements (pleadings, stipulations) are conclusive
- informal judicial admissions (during testimony/different case) are not conclusive can be explained
- Adoptive statements
-silence - vicarious statements
Are adoptive statements allowed?
When a party expressly or impliedly adopts or acquiesces in the statement of another, it may be admissible against them
Remaining silent in face of accusation can be used against them if:
-party heard and understood
-party capable of denying it
-reasonable person would have denied it
NOT CRIM CASE WHEN SILENT W/ COPS
Vicarious Statements
certain statements by another person are admissible against a party because of the relationship between them. a preliminary determination about the relationship MUST be made by the court before being allowed to testify.
Not allowed:
1. Co-parties (codefendants): insufficient
Allowed:
1. Authorized Spokesperson: can be admitted against the party
2. Employee/agent admitted if statement
-concerned matter within scope of agency/employment and
-was made during relationship
3. Partner
4. Co-conspirator
-if statement made in furtherance of conspiracy
5. Privies in title & joint tenant (STATE COURT ONLY)
Statements by an opposing party (also known as “admissions by a party-opponent”) are considered non-hearsay under the Federal Rules. For a party’s statement or act to qualify as an opposing party’s statement, it must __________.
be attributable to a party and offered against that party
Written statements past recollection recorded
Record made on a matter the witness once knew about but now cant recall
well enough to testify fully and accurately. (e.g. notes about an event)
The rule is: A past recollection recorded is admissible if:
1. personal knowledge at the time
2. writing was made/adopted by witness
3. writing was made while events were fresh
4. writing is accurate AND
5. witness can’t remember the event
*can only be read into evidence unless offered against an adverse party
What two categories can hearsay exceptions be divided into?
- where declarant is unavailable to testify
- where availability of declarant doesn’t matter
When is a declarant unavailable as a witness?
If they are:
1. privilege
2. refuses to testify despite a court order
3. death/illness
4. can’t remember subject matter
5. beyond court’s subpoena power and their attendance can’t be procured
-def is available if they can give a depo instead of attending trial except if theres a formal testimony exception and the forfeiture by wrongdoing exception
Prior statements made under oath/Former testimony exception
Admissible if:
- Made under oath?
- statements are offered against a party who was present in the previous trial or proceeding
-in a civil case, a party who was in privity w/ the party in the previous case is sufficient - the same issues are involved; and
- the party who is offered against had the same motive and opportunity to cross-examine the witness in the previous trial or proceeding
Hearsay exceptions that require declarant to be unavailable to testify
- Former testimony/Prior statements made under oath
- Statements against interest
- dying declaration
- statements of personal/family history
- statement offered against part procuring declarant is unavailable
Statements against interest
a statement of a person who is now unavailable as a witness may be admissible if:
- it was against that persons money, property, or criminal interest when made
- only a reasonable person would have made that statement and they believed it to be true and
- personal knowledge of the facts
- must be aware the statement was against their interest when they made it
*if criminal, statement must be corroborated
Dying declarations
is admissible if
- unavailable declarant
- homicide prosecution or any civil case
- declarant believed their death was imminent (didn’t actually have to die)
- statement concerned cause or circumstances of what the declarant thought was their impending death
*traditional rule-has to die and can’t be used in civil
*federal-doesn’t have to die, and all civil cases
Statements of personal or family history
Statements by unavailable declarant concerning birth, death, and other family matters admissible if:
- declarant is member of or intimately associated with family AND
- statements are based on declarant’s personal knowledge of facts/family’s reputation
Statements offered against party procuring declarant’s unavailability
Unavailable declarant’s statements admissible against party who intentionally caused declarant to be unavailable (he killed him so he didn’t testify)
Excited utterances
exception where availability doesn’t matter
- relates to startling event
- was made while declarant was under stress of excitement from event
Present sense impressions
exception where availability doesn’t matter
-describes or explains event or condition
-made while or immediately after declarant perceives event or condition
Present state of mind
exception where availability doesn’t matter
-includes statements of then-existing motive, intent, plan, and emotional, sensory, and physical condition
-includes statements of intent (do something in future or engage in conduct with another person)
-includes CURRENT/PRESENT physical condition
-does NOT include statements of memory or belief
Statements made for purposes of medical diagnosis or treatment
exception where availability doesn’t matter
-statements describing medical history, past or present symptoms, or their inception or general cause
-must be made for and reasonably pertinent to medical diagnosis or treatment
Exceptions where availability doesn’t matter
- Excited utterances
- Present sense impression
- Present state of mind
- Present bodily condition
- Statement for medical diagnosis or treatment
- recorded recollection
- Business records or absence thereof
- public records & reports or absence thereof; records of vital stats
- judgments
- ancient documents
- docs affecting property interest
- learned treatises
- reputation
- family records
- market reports
Records of a regularly conducted activity-business records
exception where availability doesn’t matter
Record of act, event, condition, opinion, or diagnosis admissible if:
- made in regular course of business and business regularly keeps such record
- made near time of event
- consists of matters within personal knowledge of entrant
*can used to prove nonoccurence
Business records foundation
custodian of records or other qualified witness must provide either
- in court testimony or
- written certification
Public records-permitted categories
- activities of agency
- matters observed pursuant to legal duty but NOT including police observations in criminal cases
- records of factual findings resulting from legally authorized investigation, but not against defendant in criminal case
-in civil or against government
*test interest of outsiders (ppl who arent public employees to make sure they are admissible)
Police reports
Generally not admissible against criminal defendant under public records or business records exceptions
Other official records
- records of vital stats
- absence of public record
-has to show diligence in searching - Judgments (exception where availability doesn’t matter)
Judgements
exception where availability doesn’t matter
- Prior criminal conviction-felony conviction admissible to prove any fact essential to the judgment
- Prior criminal acquittal-not allowed
- Judgment in prior civil case-generally not allowed in a criminal proceeding because standards are different
Recorded recollection and learned treatises
exception where availability doesn’t matter
record can only be read into evidence
Ancient documents
Statements in any authenticated doc prepared BEFORE JAN 1 1998 are admissible
Documents affecting property interests
exception where availability doesn’t matter
admissible if the statement is relevant to the doc’s purpose. Will not apply if later dealings with the property are inconsistent with the truth of the statement asserted or the intent of the doc
Reputation
exception where availability doesn’t matter
Allowed to prove:
1. character
2. personal/family history
3. land boundaries
4. community’s general history
Family Records
exception where availability doesn’t matter
statements of fact concerning personal/family history contained in family bibles, genealogies, jewelry engravings, etc.
Market Reports
exception where availability doesn’t matter
reports and other published compilations are admissible if generally used and relied upon by the public or by persons in a particular occupation
Catch-all exception
For a hearsay statement that is not covered by a specific exception to be admitted. Fed rules provide a catch all exception. Conditions are:
- statement is trustworthy
- statement is strictly necessary
- reasonable notice to adversary
Hearsay and the confrontation clause
inadmissible if:
1. offered against crim def
2. declarant unavailble
3. accused had no opportunity to cross examine declarant about statement
4. statement is testimonial
Hearsay and the confrontation clause: statements made to law enforcement
statements made to law enforcement:
depends on primary purpose:
-to aid in ongoing emergency-nontestimonial
-to provide info for later prosecution-testimonial
What privilege law applies in fed court
1.cases based on fed law-fed CL applies
-attorney-client
-spousal
-privilege for confidential marital communications
-therapist/social worker
-clergy
-governmental privileges
-NOT DOCTOR (state only)
- diversity-state privilege law applies
How is a privilege waived?
- failure to claim the privilege
- voluntary disclosure
- contractual waiver
-not waived if there is no consent such as with eavesdropper
Joint client rule
no attorney client privilege when joint clients have common interest, their communications w attorney are not privileged if they sue each other
doctor-patient privilege exceptions
state only
- patient put physical condition at issue
- assistance sought to aid wrongdoing
- dispute between doctor and patient
- patient agreed to waive privilege
- fed case applying fed law
spousal privilege
-prevents D’s spouse from testifying against D in criminal case
-must be married at time of trial
-witness-spouse holds privilege (party spouse cant stop them from testifying)
confidential marital communications privilege
-civil or crim
-either spouse can claim privilege
-must have been married at time of communication (privilege remains in divorce)
-communication must have been confidential in nature (threats/abuse not privilege)
Exceptions to marital privileges
-joint crime fraud
-legal actions between spouses
-spouse charged w/ crime against other spouse or either spouse’s children
Burdens of proof
- Burden of production
-a party’s obligation to come forward with sufficient evidence to support a particular proposition of fact. - Burden of persuasion
-civil cases: usually by a preponderance of the evidence (sometimes clear and convincing)
-criminal: beyond a reasonable doubt
Preliminary facts decided by jury
Jury decides issues affecting relevance, including:
1. whether evidence is authentic
2. whether person was acting as agent
3. whether witness has personal knowledge
Judge first determines that there is sufficient proof to support a jury finding that the fact exists
Preliminary facts decided by judge
judge decides whether evidence is admissible
1. is witness competent to testify
2. is evidence privileged
3. does evidence meet requirements of hearsay exception
-judge may consider all nonprivileged evidence when making determination
Preliminary facts decided by judge-presence of jury
When jury must be excused
If:
-hearing involves whether confession is admissible
-D in crim case is testifying at hearing and requests jury be excused
-justice requires
Judicial notice
courts ability to recognize a fact as true without formal presentation of evidence
facts not subject to reasonable dispute because:
1. generally known within trial court’s jx OR
2. can be accurately and readily determined from sources that cannot reasonably be questioned
Judicial notice-procedural issues
-can be taken at any stage
-mandatory if party formally requests it and provides necessary info
-conclusive in civil but not criminal
Rule of completeness
When some or all of writing or recorded statement is admitted, adverse party may require proponent to introduce any other part, or any related writing or recorded statemtn that ought in fairness be considered at the same time
Limited admissibility
if evidence is admissible on a limited basis, judge must-upon timely request-issue limiting instruction
-may also exclude evidence entirely under Rule 403
