Evidence 51-64 Flashcards
Hearsay Exceptions
Under the FRE, what records are admissible under the Government or Public Records hearsay exception?
Policies and practices of a public office.
Observations in accordance with duties by law (except police reports in criminal cases).
Factual findings from a legally authorized investigation, BUT only in:
Civil cases; and
Against the government in criminal cases.
*Record will not be admitted if opposing party shows they were made under circumstances lacking trustworthiness.
Priority: Medium
Hearsay Exceptions
In California, what records are admissible under the Government or Public Records hearsay exception?
A writing that is:
Made by and within the scope of duty of a public employee;
Made at or near the time of the act/condition/event; AND
The record was made under circumstances indicating trustworthiness.
Priority: Medium
Hearsay Exceptions
When is a Past Recollection Recorded admissible?
If:
The witness had personal knowledge of the events at one time;
The writing was made/adopted by the witness;
The writing was made while the events were still fresh;
The writing is accurate;
AND
The witness can no longer remember the event.
Priority: Medium
Right to Confront Witnesses
When does an out-of-court statement violate a Defendant’s 6th Amendment rights?
When:
The statement is testimonial;
The declarant is unavailable to be cross-examined at trial;
AND
The defendant didn’t have an opportunity to cross-examine the declarant before trial.
**Exceptions: dying declarations, wrongdoing by a defendant.
Priority: HIGH
Right to Confront Witnesses
What types of statements are testimonial in nature?
Statements made to grand juries;
AND
Statements made to police whose primary purpose is to collect testimony to be used at a later trial.
(It is NOT testimonial if used to assist police in an emergency.)
Priority: HIGH
What is Spousal Immunity?
(FRE vs. CA)
FRE:
A witness-spouse in a valid marriage may refuse to testify against his/her spouse in a criminal case. Spousal Immunity DOES NOT apply in civil cases.
CA:
The spouse holding the privilege may refuse to testify in BOTH criminal and civil cases.
Priority: Medium
What is the privilege of Confidential Marital Communications?
Communications between spouses are privileged if:
Made during the course of a valid marriage; AND
Were intended to be confidential.
*Applies in both civil and criminal cases, held by both spouses even after a divorce.
Priority: Medium
In what circumstances do the Spousal Privileges (spousal immunity and confidential marital communications) NOT apply?
In cases between the spouses.
When a spouse commits a crime against the other spouse or their children.
Priority: N/A
What does the Attorney Work Product Doctrineprotect?
Under what circumstances is it NOT protected?
It protects ALL materials prepared by an attorney or his agents in anticipation of or during litigation. (In CA: Only materials prepared in anticipation of litigation are deemed work product).
They are protected UNLESS a party can show:
A substantial need for the materials exists; AND
A substantial equivalent of the materials cannot be obtained without undue hardship.
Priority: HIGH
Attorney Work Product Doctrine (California)
Absolute Privilege
vs.
Qualified Privilege
Absolute: Materials prepared in anticipation of litigation and are comprised of the attorneys’ mental impressions, notes, or opinions. These are absolutely protected and are NOT discoverable.
Qualified: All other materials prepared in anticipation of litigation are deemed as qualified work product. These may be discoverable upon showing of substantial need and inability to obtain elsewhere.
Priority: HIGH
What is the Attorney-Client Privilege?
It protects confidential communications between an Attorney and Client from disclosure if the communication:
Was confidential; AND
Made to facilitate legal services.
*The client holds the privilege.
Priority: HIGH
When does the Attorney-Client Privilege NOT apply?
When:
Legal services are sought to further a crime or fraud;
There is litigation related to the breach of duty between attorney and client; OR
Jointly represented clients are subsequently involved in a civil litigation against each other.
*CA: Privilege DOES NOT survive the client, and does not apply if the attorney believes disclosure is necessary to prevent a crime likely to result in bodily harm or death.
Priority: HIGH
What is the Physician-Patient Privilege?
It protects confidential communications between a Physician and Patient from disclosure if the communication:
Was confidential; AND
Made for the purpose of medical diagnosis or treatment.
*The patient holds the privilege (not the physician).
Priority: Low
When is the Physician-Patient Privilege recognized?
(CA vs. Federal)
CA: Recognizes the privilege
Federal Courts: DO NOT recognize the privilege
*Exception: Federal courts will recognize it when:
it’s a civil case;
a claim/defense is based on state law; AND
state law recognizes a physician-patient privilege.
Priority: Low
