Evidence Flashcards
1
Q
Relevance
A
Threshold question = Any tendency to make the existence of any material fact more or less probable than it would be without the evidence
Relevant evidence is:
1) material = of consequence
2) probative = any tendency to make the proposition more or less likely
- only needs to shift the probability sightly
2
Q
Federal Rules of Evidence are generally applicable in all civil and criminal federal proceedings, except:
A
1) preliminary fact determinations by judge
2) grand jury proceedings
3) other miscellaneous proceedings:
- sentencing
- extradition
- bail
- probation
3
Q
General rule of admissibility
A
All relevant evidence is admissible unless:
1) it is kept out by a specific exclusionary rule of evidence or
2) the court uses its Rule 403 discretion to keep it out
4
Q
Rule 403 balancing test
A
Court’s broad discretion to exclude relevant evidence probative value is substantially outweighed by the danger of one of the following considerations:
- unfair prejudice
- confusion of the issues
- misleading the jury
- undue delay
- waste of time
- repetitive evidence
5
Q
General rule for similar occurrences
A
If evidence involves some time, event, or person OTHER than that involved in the present case, it is INADMISSIBLE –> doesn’t survive the 403 balancing test
Exceptions:
1) P’s accident history - prior false claims or same bodily injury
2) Similar accidents or injuries caused by same event or condition
3) previous similar acts admissible to prove intent
4) habit and business routine evidence
5) industry custom as evidence of standard of care
6
Q
Plaintiff’s accident history
A
P’s other lawsuits or accidents are generally inadmissible, UNLESS they tend to show something other than carelessness of P:
1) prior false claims to prove present claim is false
2) prior accidents involving same body part when causation is at issue
7
Q
Similar accidents or injuries caused by same event or condition
A
Evidence of prior accidents or injuries caused by the same event or condition and occurring under substantially similar circumstances is admissible to prove:
1) existence of a dangerous condition
2) dangerous condition was the cause of the present injury
and
3) that D had notice of the dangerous condition (if it occurred before the P’s accident)
Evidence of absence of complaints is admissible to show D’s lack of knowledge of the danger
8
Q
Previous similar acts admissible to prove intent
A
Party’s similar conduct previously committed is admissible to prove their present motive or intent in the current case
9
Q
Habit and business routine evidence
A
Admissible as circumstantial evidence that the person or organization acted in accordance with the habit on the occasion at issue in the current case
Habit = regular response to a specific set of circumstances:
1) frequency of conduct
2) particularity of circumstances
10
Q
Industry custom as evidence of standard of care
A
Evidence as to how others in the same trade or industry have acted in the recent past is admissible as the appropriate standard of care, but NOT conclusive on the point
11
Q
Public policy exclusions
A
1) liability insurance
2) subsequent remedial measures
3) civil settlements and settlement negotiations
4) plea discussions
5) payments of and offers to pay medical expenses
12
Q
Liability insurance
A
Inadmissible to prove negligence or wrongful conduct
Admissible for other purposes:
1) prove ownership or control, if disputed
2) impeach a witness
3) as part of an admission of liability (“Don’t worry, my insurance will pay it off”)
13
Q
Subsequent remedial measures
A
SRM = repairs or other precautionary measures made following an injury
Inadmissible to prove negligence, culpable conduct, product or design defect, or need for a warning or instruction
Admissible for other purposes:
1) to prove ownership or control, if disputed
2) to rebut a claim that a precaution was not feasible
3) to prove that the opposing party has destroyed evidence
14
Q
Civil settlements and settlement negotiations
A
Evidence of a compromise or offer to compromise a civil claim and conduct or statements during negotiations are inadmissible to:
1) prove or disprove the validity or amount of a dispute claim or
2) impeach a witness by prior inconsistent statement or contradiction
Evidence of settlement IS ADMISSIBLE to impeach a witness on ground of bias
For exclusion to apply, there must be a claim in dispute as to:
1) liability or
2) amount
15
Q
Limited exception to inadmissibility of settlement negotiations rule
A
Conduct or statements in civil negotiation with government or regularity authority are admissible in a criminal case
16
Q
Plea discussions
A
Inadmissible in any criminal or civil case against the D who made the plea or participated in discussions:
1) offers to plead guilty
2) withdrawn guilty pleas
3) actual pleas of nolo contendere (no contest)
4) statements of fact made during any of above plea discussions
17
Q
Payments of and offers to pay medical expenses
A
Inadmissible to prove liability for the injury
BUT admissions of fact accompanying such payments and are offers are ADMISSIBLE
18
Q
Character evidence
A
Refers to a person’s general propensity or disposition, such as for honesty, fairness, peacefulness, violence, etc.
19
Q
Admissibility of character evidence
A
Character evidence is admissible as substantive evidence for:
1) proving a person’s character when directly in issue
- trait is an essential element
- RARE
2) proving how a person probably acted during the events of the case
- conduct in conformity with character or propensity evidence
3) impeachment, but only for truthfulness character trait
- attacking credibility of the witness
20
Q
Allowable methods for proving character
A
1) evidence of person’s specific acts
2) opinion testimony of a witness who knows the person
3) testimony as to person’s general reputation in the community
21
Q
D’s character in a criminal case
A
Prosecution can not initiate evidence of D’s bad character to show conduct in conformity
BUT D can introduce evidence of their own good character -> opens the door for prosecution to rebut with evidence of D’s bad character
22
Q
How D can prove character
A
With a character witness as to:
1) D’s good reputation for a pertinent trait and
2) their personal opinion concerning that trait of the D
23
Q
When D takes the witness stand in his own defense…
A
He does NOT open the door to the issues of his character
Only his credibility is at issue when he takes the stand to testify
24
Q
Once D opens the door by introducing character evidence, prosecution can:
A
1) Cross-examine D’s character witness regarding the basis for their testimony by asking questions about specific acts of D that shows D’s bad character for the trait in question
- purpose = to show witness’s lack of knowledge, NOT prove D’s bad character
- NO extrinsic evidence of D’s previous misconduct –> P can only ask if witness knows of the conduct
2) Call its own character witness to prove REPUTATION or OPINION testimony about D’s bad character for the trait in question
25
Victim's character in criminal case - when D can initiate
D can offer reputation and/or opinion testimony concerning victim's character for relevant trait when it is relevant to show D's innocence
D claiming self-defense and arguing that victim was the first aggressor
26
D introducing evidence of victim's character...
Opens door for prosecution to introduce evidence about:
1) victim's good character for same trait or
2) D's bad character for the same trait
27
When prosecution can introduce evidence of a victim's character
Prosecution can offer evidence of a victim's character for peacefulness in a homicide case where D pleads self-defense
Evidence of any kind that victim was first aggressor opens the door for evidence that victim was peaceful
Admissible even if D hasn't introduced evidence of victim's generally violent propensity
28
Rules for rape victim's past behavior
Evidence to prove sexual behavior or disposition of a rape victim is generally inadmissible except:
In a criminal case:
1) specific instances of victim's behavior are admissible to prove that someone OTHER THAN D is source of physical evidence
2) instances of sexual conduct between D and victim to prove consent
In a civil case:
1) Admissible if not excluded by another rule AND
2) its probative value substantially outweighs danger of harm to victim and unfair prejudice
29
Admissibility of character evidence in civil cases
Generally inadmissible to prove conduct in conformity UNLESS character is an essential element of a claim or defense:
1) defamation where truth is a defense
2) negligent hiring or entrustment and
3) child custody cases
30
Evidence of other misconduct
Generally inadmissible if offered solely to prove propensity
Admissible for non-character purposes (independently relevant) if D is contesting the non-character issue = MIMIC:
Motive
Intent
Mistake (absence of)
Identity
Common plan or scheme
31
Requirements for admissibility of misconduct evidence
Misconduct for non-character purposes may be proved by any evidence, as long as it is sufficient to support a jury finding that D committed the other misconduct
Subject to 403 balancing test
In a criminal case = prosecutor must give reasonable notice to D
32
D's similar misconduct in sex-crime cases
Evidence of a D's other acts of sexual assault or child molestation is admissible in a criminal OR civil case for any purpose (even showing propensity) where D is accused of committing such an act
33
Three issues for writings
1) authentication
2) best evidence rule
3) hearsay
34
Authentication of writings and spoken statements
Writing or secondary evidence of its content must be authenticated by proof that shows the writing is what proponent claims it is
Standard of proof = sufficient to support a jury finding of genuineness
35
Methods of authentication
1) Opponent's admission
2) eyewitness testimony of someone with knowledge
3) handwriting verifications
- lay opinion of someone with pre-existing knowledge
- expert opinion
- jury's comparison
4) ancient documents = authenticated if:
- at least 20 years old when offered
- in a condition that creates no suspicion
- found in a place such a writing would be kept
5) Reply letter doctrine = document can be authenticated by evidence it was written in response to a communication sent to alleged author
6) Photos and videos = must be identified by witness as fair and accurate representation of facts depicted
36
Authentication of oral statements
1) voice identification = can be familiar with voice for sole purpose of testifying (different from handwriting)
2) phone conversation = authenticated by any party to the call who:
- recognized speaker's voice
- speaker had knowledge of certain facts that only a particular person would know
- speaker answered and identified themselves
- speaker who answered business's phone discussed business matters
37
Self-authenticating documents
Extrinsic evidence is not required to authenticate:
- public documents bearing a seal
- official publications
- certified copies of public records or private records on file in a public office
- newspapers and periodicals
- trade inscriptions and labels
- notarized documents
- commercial paper
- business records
38
Best evidence rule
Original document rule
To prove the content of a writing, recording, or photo, the original writing must be produced if the terms of the writing are material
Secondary evidence admissible ONLY IF proponent has a good excuse for not producing original
39
When does the best evidence rule apply?
1) where the writing is a legally operative or dispositive instrument
- writing itself creates rights and obligations
2) where the knowledge of a witness concerning a fact results from having read it in the writing
40
Best evidence rule does NOT apply when...
The witness has personal knowledge of the fact to be proved, even if the fact happens to also be recorded in a writing
Oral testimony of the fact may be given without producing the original writing that recorded the event
41
Originals and duplicates
Original = writing itself, or any counterpart intended to have the same effect
Duplicate = an exact copy made by mechanical means
42
Admissibility of duplicates
Admissible to same extent as originals unless:
1) circumstances make it unfair to admit the duplicate or
2) a genuine question is raised about the authenticity of the original
Handwritten copy ≠ duplicate, but secondary evidence and only admissible if original or duplicate is unavailable
43
Admissibility of secondary evidence
Valid excuses justifying admissibility:
1) loss or destruction of original (unless proponent destroyed in bad faith)
2) original cannot be obtained by any available judicial process
3) original is in the possession of an adversary who fails to produce original after due notice
44
Exceptions to the best evidence rule
1) summaries of voluminous records
- may be presented in form of summary or chart
- must be made available for inspection or copying
2) certified copies of public records
3) writing is of minor importance (collateral) to litigated issue
4) opponent testified or gave written admission about contents of writing
45
Questions of fact reserved for the jury
1) whether original ever existed
2) whether a writing produced at trial is an original
3) whether the evidence offered correctly reflects the contents of the original
46
Real evidence
Actual physical evidence addressed directly to the trier of fact
May be direct, circumstantial, original or demonstrative
47
Admissibility of real evidence
1) authentication = identified as what proponent claims it to be by:
- testimony of a witness that they recognize the object or
- evidence that object has been held in a substantially unbroken chain of possession
2) Condition of object = must be shown in substantially the same condition at trial
48
Competency of witnesses
Witnesses are generally presumed to be competent until the contrary is established
No qualifications required beyond:
1) personal knowledge of the matter about which they are to testify
2) giving an oath or affirmation to testify truthfully
49
CL disqualifications
1) lack of religious belief
2) conviction of a crime
3) interest in the lawsuit
Not disqualifiers in modern law
50
Leading questions
Generally allowed only on cross-examination, NOT direct
51
Leading questions allowed on direct examination:
1) to elicit preliminary or introductory matters
2) when witness needs help responding because of loss of memory, etc.
3) when witness is hostile, an adverse party, or affiliated with adverse party
52
Scope of cross-examination
Generally limited to:
1) scope of direct, including all reasonable inferences that may be drawn from it
2) matters that test credibility of the witness (impeachment)
53
Improper questions and answers
Questions:
- misleading
- compound
- argumentative
- conclusionary
- cumulative
- unduly harassing or embarrassing
- call for a narrative answer or speculation
- assume facts not in evidence
Answers:
- lack foundation
- nonresponsive
54
Using documents to aid oral testimony
Generally witnesses cannot read their testimony from a prepared document, they must testify on the basis of their current recollection
Exceptions:
1) refreshing collection = present recollection revived
2) Past recollection recorded = recorded recollection
55
Present recollection revived
Witness may use any writing or object for the purpose of refreshing their present recollection
- cannot READ from the writing while testifying
56
Safeguards against abuse for present recollection revived
When witness has used a writing to refresh their memory while on the stand, adverse party is entitled to:
1) have writing produced at trial
2) cross the witness about the writing
3) introduce portions of writing relevant to testimony into evidence
57
Failure to produce or deliver a writing for present recollection in a criminal case
If prosecution fails to produce or deliver a writing as ordered, judge MUST strike the witness's testimony
58
Past recollection recorded
If witness has insufficient recollection even after consulting a writing, the writing may be read into evidence IF a proper foundation is laid:
1) witness has insufficient recollection to testify fully and accurately
2) witness had personal knowledge of the facts when record was made
3) record was made by the witness or adopted by them
4) record was made when the matter was fresh in their mind
5) record accurately reflects witness's knowledge (witness vouches for it)
59
Opinion testimony by lay witnesses
Generally inadmissible UNLESS:
1) rationally based on witness's perception
2) helpful to determination of fact in issue AND
3) not based on specialized knowledge
60
Admissible opinions of lay witnesses
1) general appearance or condition of a person
2) state of emotion
3) matters involving sense recognition
4) voice or handwriting identification
5) speed of moving object
6) value of own services or property
7) rational or irrational nature of another's conduct
8) intoxication
61
Opinion testimony by expert witnesses
Must be more likely than not that:
1) the subject matter is one where specialized knowledge would be helpful to trier of fact
2) opinion is based on sufficient facts or data
3) opinion is product of reliable principles and methods
4) opinion reflects a reliable application of principles and methods to facts of case
62
Proper factual basis for expert opinion
Facts are:
1) based on expert's own observation
2) made known to expert at trial
3) supplied to expert outside courtroom that are of a type reasonably relied upon by other experts in the field
63
Judge as the gatekeeper of expert opinion
Courts determine the reliability of all expert testimony, based on the Daubert factors = TRAP
Testing of principle or methodology
Rate of error
Acceptance by experts in the same discipline
Peer review and publication
64
Using learned treatises during examination of an expert witness
Learned treatises may be used to impeach experts AND as substantive evidence if:
1) established as reliable authority
2) called to expert's attention on cross or relied upon by expert on direct
3) read into evidence (but not received as an exhibit)
65
Expert opinion on ultimate issues
Generally permitted except for in a criminal case where D's mental state constitutes an element of the crime or defense --> expert cannot state an opinion as to whether accused did or did not have the mental state in issue
66
Exclusion and sequestration of witnesses
Upon a party's request, trial judge MUST order witnesses excluded from courtroom except:
1) the party or party's designated representative
2) person whose presence is essential to presentation of claim or defense or
3) person statutorily authorized to be present
67
Bolstering witness testimony is...
generally prohibited before witness has been impeached by the opposing party
68
Forms of impeachment
1) cross examination
2) extrinsic evidence
- sometimes foundation must be laid first
- sometimes not allowed at all
69
Impeachment methods that involve impeaching a witness with facts that are specific to the current case
1) prior inconsistent statements
2) bias
3) sensory deficiencies
4) contradiction
70
Impeachment methods that involve impeaching a witness with general bad character for truthfulness
1) opinion or reputation evidence of untruthfulness
2) prior convictions
3) prior bad acts involving truthfulness
71
Prior inconsistent statements
Party may show by cross-examination or extrinsic evidence that the witness has previously made statements inconsistent with their present testimony
- must lay proper foundation for use of extrinsic evidence
72
Prior inconsistent statements are admissible as substantive evidence when...
they are made under oath at prior proceeding
- admissible nonhearsay
73
Laying foundation for use of EE for prior inconsistent statements
Before or after introducing EE:
1) must give W an opportunity to explain or deny the statement AND
2) must give adverse party an opportunity to examine the witness about the statement
74
Exceptions to foundation requirement for using EE for prior inconsistent statements
1) statement is that of an opposing party
2) hearsay declarant is being impeached
3) justice so requires
75
Bias
May be impeached by EE if proper foundation is laid = W must be first be asked about the facts that show bias on cross-examination
76
Sensory deficiencies
Admissible on cross-examination or EE without laying a foundation
- W does not need to be confronted with the impeaching fact first
77
impeachment by contradiction
W may be impeached by trying to get them do admit they lied or were mistaken about a fact.
- If W sticks with their story, EE may be used UNLESS the contradictory fact is collateral (has no significance to case or credibility)
78
Opinion or reputation evidence of untruthfulness
Impeachment accomplished by calling a character witness to testify about the target witness's bad reputation or character for untruthfulness
79
Impeachment by proof of a conviction
May be used for certain crimes:
1) any crime (felony or misdemeanor) involving dishonesty or false statement
2) felony not involving dishonesty or false statement based on balancing test:
- criminal D = excluded if probative value does not outweigh prejudicial effect
- all other W's = 403 balancing test
80
Remote convictions for impeachment
Not admissible if more than 10 years have elapsed since date of conviction or date of release (whichever is later)
BUT under extraordinary circumstances, it may be admitted if:
1) probative value substantially outweighs prejudicial effect and
2) reasonable written notice to adverse party
81
EE of conviction for impeachment
No foundation required for EE
- usually shown by direct or cross-examination of witness or by introducing record of judgment
82
Conviction cannot be used to impeach if
1) pardon based on rehabilitation and no subsequent felony conviction
2) pardon based on innocence
3) juvenile conviction
4) constitutionally defective conviction
83
Prior bad acts involving untruthfulness
Must have good-faith basis to believe the W committed the misconduct
- EE NOT permitted
- can only be accomplished by cross-examination of W
- no reference to any consequences that may have resulted
- arrest ≠ bad act
84
Impeachment of hearsay declarant
Declarant may be impeached to the same extent (by any method) as an in-court witness
- need not be given opportunity to explain or deny prior inconsistent statement
85
Rehabilitation of impeached witness
1) explanation on redirect
2) good character for truthfulness if attacked on that ground
- reputation or opinion testimony
3) prior consistent testimony
- when W was attacked with a charge of lying or exaggerating because of some motive, and the statement pre-dates the motive
- when W impeached on other non-character ground
- also admissible as substantive evidence
86
Hearsay
A statement, other than one made by the declarant while testifying at the current trial or hearing, offered in evidence to prove the truth of the matter asserted
87
Statement (hearsay)
1) oral or written assertion
2) nonverbal conduct intended as an assertion (e.g., head nod)
88
Not made at current trial or hearing (hearsay)
out of court = statement was made outside of CURRENT trial or proceeding
89
Offered to prove the truth of the matter asserted
What's being offered is being offered to prove that it is true
90
Common non-truth purposes
Statements that are not hearsay (nonhearsay) because they are not being offered for the truth of the matter asserted:
1) verbal acts or legally operative facts
- e.g., contract or defamatory words
2) statements to show their effect on the listener or reader
- e.g., notice for negligence case
3) statements offered as circumstantial evidence of declarant's state of mind
- e.g., "I am Elvis Presley" offered to prove D is insane.
91
Special hearsay exclusions
Statements that meet the definition of hearsay but are exempted as hearsay (come in as substantive evidence):
1) prior statements of testifying witnesses
2) statements by or attributable to opposing party
92
Prior statements of testifying witnesses
Prior statement of a testifying witness who is subject to cross-examination is not hearsay if prior statement is:
1) making an identification
2) inconsistent with declarant's in court testimony and was under under oath
3) consistent with in-court testimony and offered:
- to rebut charge of lying and statement was made before any motive to lie arose or
- to rehabilitate witness impeached on some other ground than lying
93
Statements by or attributable to opposing party - judicial and extrajudicial
1) judicial statements = conclusive and cannot be contradicted during trial
2) extrajudicial statements = not conclusive and can be explained
94
Statements by or attributable to opposing party - adoptive statements
Where party was expressly or impliedly adopts or acquiesces in statement of another
Includes silence in face of accusatory statement if party:
- heard and understood statement
- was physically and mentally capable of denying the statement
- reasonable person would have denied accusation
95
Statements by or attributable to opposing party - vicarious statements
Certain statements by another person are admissible against a party because of the relationship between them:
1) authorized spokesperson
2) agents and employees
- matter within scope of agency/employment
- during existence of agency/employment
3) partners if within scope of partnership
4) co-conspirators if made in furtherance of a conspiracy
96
Hearsay exceptions - declarant unavailable
These exceptions condition admissibility of the statement on the present unavailability of declarant to testify:
1) former testimony
2) statements against interest
3) dying declarations
4) statements of personal or family history
5) statements offered against party procuring declarant's unavailability
97
Grounds for unavailability
1) death or illness
2) privilege
3) refusal to testify despite a court order
4) inability to remember the subject matter
5) absent and attendance cannot be procured
98
Former testimony of a now unavailable witness is admissible if:
1) testimony was given under oath
2) party against whom testimony is now being offered had opportunity and similar motive to develop it
99
Statements against interest
Statement against unavailable declarant's pecuniary, proprietary or penal interest WHEN MADE
100
Statements by an opposing party vs statements against interest
Opposing party:
1) statement need not have been against interest when made
2) Declarant need not have personal knowledge of facts
3) declarant need not be unavailable
4) declarant must be a party
Against interest:
1) statement must have been against interest when made
2) declarant must have personal knowledge of facts
3) declarant must be unavailable
4) declarant need not be a party
101
Limitations on statements against penal interest
In criminal cases, statements against penal interest (subjecting declarant to criminal liability) must be corroborated
102
Dying declarations
Homicide prosecution or ANY civil case:
1) declarant believed their death was imminent
2) statement concerned cause or circumstances of impending death
compare traditional rule:
- required actual death
- could not be used in civil cases
103
Statements offered against party procuring declarant's unavailability
Admissible when offered against a party who has engaged or acquiesced in wrongdoing that intentionally procured declarant's unavailability
- ONLY applies if the party's MOTIVATION was to prevent declarant from testifying
104
Hearsay exceptions - declarant's unavailability immaterial
These exceptions do not require the declarant to be unavailable
1) excited utterances
2) present sense impressions
3) present state of mind
4) statements made for purposes of medical diagnosis or treatment
5) records of regularly conducted activity
6) official records and other official writings
7) recorded recollection
8) learned treatises
9) ancient documents
10) documents affecting property interests
11) reputation
12) family records
13) market reports
105
Excited utterance
1) relates to startling event
2) made while under the stress of excitement from the startling event
106
Present sense impression
1) describes or explains an event or condition
2) made while or immediately after the declarant perceives the event or condition
107
Present sense of mind
Includes statements of then-existing (present) state of mind (motive, intent or plan) or emotional, sensory or physical condition
Statement of memory or belief is NOT admissible to prove truth of fact remembered or believed
108
Statements made for medical treatment
1) describing medical history, past or present symptoms or their inception or general cause
2) must be made for and reasonably pertinent to medical diagnosis or treatment
- includes a diagnosis for the purpose of giving an expert opinion
109
Business records
1) made in regular course of business
2) near time of event
3) consists of matters within personal knowledge of entrant (or someone who had duty to transmit information to entrant)
110
Required foundation for business records
Custodian of records or other qualified witness must provide either:
1) in-court testimony or
2) written certification
111
Business records to prove nonoccurence of matter
Admissible if business regularly recorded such matters, but did not in this case
112
Official records and other official writings
1) Public records and reports
- police reports are not admissible against a criminal D
2) records of vital statistics
3) statement of absence of public record
4) judgments
113
Recorded recollection
Document recorded or adopted at or near the time of the event can be read into evidence if the W cannot remember/memory can't be revived
- can only be read into evidence
- can only be admitted as an exhibit unless offered by an adverse party
114
Residual catch-all hearsay exception
Hearsay statement may be admitted if:
1) trustworthy
2) strictly necessary
3) proponent gave reasonable notice to adversary
115
Hearsay and the confrontation clause
Hearsay statement will not be admitted where:
1) it's being offered against the accused in a criminal case
2) declarant is unavailable
3) statements was testimonial in nature and
4) accused had no opportunity to cross-examine declarant
116
Testimonial statement (confrontation clause)
1) sworn testimony or
2) statements to law enforcement for later prosecution
NOT statements to aid in an ongoing emergency
117
Affidavits or written reports of forensic analysis (testimonial nature)
If they have the effect of accusing a targeted individual of criminal conduct, they ARE testimonial and cannot be admitted unless D previously had opportunity to cross-examine author of the report
118
Applying federal or state privilege law in a federal court
Federal question case = privileges governed by federal common law
Diversity = Erie --> federal court must apply privilege law of the state
119
Federal common law privileges
1) attorney-client
2) spousal immunity
3) privilege for confidential marital communications
4) psychotherapist/social worker-client privilege
5) clergy-penitent privilege
6) governmental privileges
120
Confidentiality and privilege
To be privileged, communication must have been made in confidence
121
Comments on using privilege
Comments on someone's claim of privilege are forbidden
122
Waiver of privilege
1) failure to claim privilege
2) voluntary disclosure of privileged matter by privilege holder
3) contractual provision waiving in advance
- NOT waived if communication was overheard by someone whose presence is unknown to the parties
123
Physician-patient privilege
State privilege only
1) professional relationship
2) information acquired for diagnosis or treatment
3) information necessary for diagnosis or treatment
124
Exceptions to physician-patient privilege
1) patient puts physical condition in issue
2) doctor's assistance was sought to aid wrongdoing
3) communication is relevant to issue of breach of duty in dispute between doctor and patient
4) patient agreed by contract to waive privilege
5) federal case applying federal law of privilege (doesn't apply)
125
Spousal immunity
Married person whose spouse is a criminal D may not be called as a witness by the prosecution
- cannot be compelled to testify against legal interests of spouse in any criminal proceeding
- applies in criminal cases only
- must be a valid marriage
- privilege belongs to witness-spouse, not D-spouse
126
Privilege for confidential marital communications
Confidential communications between spouses during a valid marriage are privileged
- applies in criminal or civil cases
- either spouse can refuse to disclose and prevent the other from disclosing information
- marital relationship must exist when communication is made
- divorce does not terminate the privilege
- communication must be made in reliance on marital intimacy/confidentiality
127
Neither marital privilege applies when:
1) joint crime/fraud
2) legal actions between spouses
3) spouse charged with crime against other spouse or either spouse's children
128
Burden of production
Party who has burden of pleading has burden of producing evidence sufficient to make out a prima facie case
- once prima facie case is made, other side must come forward with evidence to rebut
129
Burden of persuasion (proof)
Civil cases = preponderance of the evidence
- sometimes clear and convincing
Criminal = beyond reasonable doubt
130
Preliminary facts decided by jury
FIRST = judge determines that there is sufficient proof to support a jury finding that the preliminary fact exists
THEN = Jury decides issues affecting relevance including:
1) whether evidence is authentic
2) whether person was acting as an agent
3) whether witness has personal knowledge of facts of their testimony
131
Preliminary facts decided by judge
Judge must determine facts affecting the competency of the evidence including:
1) is a witness mentally competent to testify?
2) does a privilege exist?
3) does the evidence meet the requirements of a hearsay exception
Judge can consider all non-privileged evidence when making determination
132
Presence of jury during preliminary fact determination
Within the discretion of trial judge, but jury MUST be excused if:
1) hearing involves whether confession is admissible
2) D in criminal case is testifying at hearing and requests jury be excused
3) justice so requires
133
Testimony by accused during preliminary fact determination
Accused can testify on any preliminary matter without subjecting themselves to testifying at trial or being cross-examined about other issues
134
Judicial notice
Court recognizes a fact as true without formal presentation of evidence
1) any fact not subject to reasonable dispute
2) required on party's request
3) conclusive in a civil case but NOT in a criminal case
4) govern adjudicative facts (those relating to the particular case)
135
Presumptions
Rules that require a particular inference be drawn from an ascertained set of facts
136
Common presumptions
1) mail delivery
2) death from 7-year absence
3) against suicide
4) legitimacy
5) sanity
6) ownership of car-agent driver
7) chastity
8) proper performance of duties in official office
9) solvency
10) marriage
137
Effect of presumption
Operates to shift the burden of production to the party against whom the presumption operates
138
Limited admissibility of evidence
If evidence is admissible on limited bases, judge must - upon timely request - issue a limiting instruction to the jury
- judge may also exclude evidence entirely under Rule 403
