Evidence

Question 1

When is evidence relevant?

Answer 1

If it has any tendency to make a material fact more or less probable than if the evidence weren’t admitted.

All relevant evidence is admissible unless some specific exclusionary rule (privileges, hearsay) applies, or if the court in its own discretion determines its probative value might be substantially outweighed by risk of prejudice

Question 2

What are the factors that make evidence’s risk of prejudice substantially outweigh probative value?

Answer 2

Promoting accuracy in fact-finding:

1. Danger of unfair prejudice
2. Confusion of the issues
3. Misleading the jury

Promoting efficiency:

1. Undue delay
2. Waste of time
3. Unduly cumulative

Courts determine on a case-by-case basis.

Note: extrinsic evidence that contradicts on a minor, unimportant point is not admissible.

Question 3

When will plaintiff’s accident history be deemed relevant, and when will it be deemed irrelevant?

Answer 3

General rule: if evidence concerns time, event, person other than that involved in case at hand, inadmissible (weak relevance, danger of confusion, misleading jury, confusing). Some exceptions:

Plaintiff’s accident history exception: inadmissible to show general history of being accident prone (character evidence), admissible if event that caused P’s injuries is at issue.

Question 4

When will similar accidents caused by the same instrumentality/condition be deemed relevant, and when will it be deemed irrelevant?

Answer 4

Similar accidents caused by the same instrumentality or condition.

Generally, other accidents involving D inadmissible, except if other accidents occurred under substantially similar circumstances and:
(a) to show existence of dangerous condition
(b) to show causation of accident, OR
(c) prior notice to defendant
Also applies to tests/experiments.

Question 5

When will intent be deemed relevant, and when will it be deemed irrelevant?

Answer 5

Intent in issue (prior similar conduct of a person may be admissible to raise inference of intent at that later occasion)

Question 6

When will comparable sales values be deemed relevant, and when will it be deemed irrelevant?

Answer 6

Comparable sales on issue of value (selling price of other property of similar type, same general location, close in time to period at issue)

Question 7

When will habit be deemed relevant, and when will it be deemed irrelevant?

Answer 7

Habit will be admitted as circumstantial evidence of how a person or business acted on the occasion at issue in litigation. Habit is a repeated response to a particular set of circumstances.

Evidence of prior similar occurrences is not admissible to show a party probably acted the same way again in the event in question. BUT evidence of a HABIT is admissible to show that party probably acted the same way again in the event that gave rise to the litigation.

Distinguish general propensity - habit is a repetitive response to a particular set of circumstances, requires:

1. frequency and
2. particularity of conduct

Key words: always, never, invariably, instinctively
Ex: every morning for 7 years, consecutive days

Question 8

When will industrial custom as standard of care be deemed relevant, and when will it be deemed irrelevant?

Answer 8

Evidence re: how others in the same trade or industry have acted in the recent past may be admitted as some evidence as to how a party in the instant litigation should have acted, i.e. as evidence of the appropriate standard of care

Question 9

What are policy-based exclusions of evidence?

Answer 9

1. Liability insurance
2. Subsequent remedial measures
3. Settlements of disputed civil claims
4. Offer to pay hospital or medical expenses
5. Plea bargains in criminal cases

Question 10

What are the rules governing the inadmissibility of liability insurance?

Answer 10

Evidence that a person does or doesn’t have liability insurance is inadmissible for the purposes of proving fault or the absence of fault

Exception: evidence of insurance may be admissible for some other relevant purpose, such as:

(1) proof of ownership/control of instrumentality or location, if that issue is disputed by D
(2) for the purposes of impeachment of a witness on the grounds of bias (ex. this witness is just a claims adjuster, being paid)

Question 11

What are the rules governing the inadmissibility of subsequent remedial measures?

Answer 11

Post-accident repairs, design changes, policy changes - all inadmissible for the purpose of proving negligence, culpable conduct, product defect, or need for warning.

Policy: safety, encourage people to make repairs.

Exception: may be admissible for a different relevant purpose (proof of ownership/control, feasibility/possibility of safer condition if either is disputed by defendant - like if the defense was “it wasn’t possible”).

Question 12

What are the rules governing settlements of disputed civil claims?

Answer 12

In the event of a disputed claim, the following are inadmissible:

(1) settlement
(2) offer to settle
(3) statements of fact made during settlement discussion for the purpose of showing liability or to impeach a witness as a prior inconsistent statement.

Note: the exclusionary rule only applies if there is a claim that is disputed (at the time of settlement discussions), either as to validity of claim (liability) or the amount of damages.

Exception:

(1) settlement evidence admissible for the purpose of impeaching W on the grounds of bias, OR
(2) statements of fact made during settlement discussion in civil litigation with a gov’t regulatory agency are admissible in a later criminal case

Question 13

What types of plea bargains are inadmissible?

Answer 13

The following are inadmissible against D in pending criminal cases or in subsequent civil litigation based on the same facts:

(1) Offer to plead guilty
(2) Withdrawn guilty plea

Can’t be used in subsequent civil litigation based on same facts:
- Plea of nolo contendere

Statements of fact made during any of the above plea discussions also inadmissible.

BUT a plea of guilty (not withdrawn) is admissible in the subsequent litigation based on the same facts under the rule of party admissions.

Question 14

What are the rules governing admissibility of offers to pay hospital or medical expenses?

Answer 14

Evidence that a party has paid or offered to pay an accident victim’s hospital or medical expenses is inadmissible to prove liability.

Note: does not exclude other statements made in connection with an offer to pay medical expenses

Question 15

What is character evidence, and potential purposes for its admissibility?

Answer 15

A person’s general propensity or disposition (honesty fairness, peacefulness, violence)

Potential purposes for its admissibility:

1. Person’s character is an essential element in the case, under the substantive law (rare in civil cases, never in criminal cases)
2. Character evidence as circumstantial evidence of the person’s conduct on a particular occasion
3. Witness’s bad character for truthfulness to impeach credibility

Question 16

When is character evidence regarding the defendant’s character inadmissible/admissible in a criminal case?

Answer 16

Prosecutor cannot introduce character evidence if the purpose is to prove probability of conduct on the occasion in question (during case-in-chief).

However, D can open the door, by offering evidence of a relevant good character trait to prove that D’s conduct was in conformity with that character, and that he didn’t do the crime. Can do through character witness testifying to reputation or opinion.

1. Can never use specific acts.
2. Can only testify to the trait that is relevant in the adjudication
3. Can say a witness is “law-abiding” in general, though

Note: If D testifies, he automatically puts trait of “truthfulness” in issue, and P can present character evidence to show that D is not a truthful person.

In prosecutorial rebuttal, if D opened the door:

1. Can cross the character witness with “do you know” or “have you heard” questions, but can’t impeach with evidence - must take the answer.
2. W’s testimony that D is “law abiding” doesn’t open the door to impeachment or cross on past criminal character

Question 17

What are special standards regarding admissibility of character evidence during a self-defense case?

Answer 17

Can be used to introduce evidence of a victim’s violent character (in addition to bringing evidence re: victim being first aggressor).

Method: character witness gives testimony re: victim’s reputation for violence and opinion.

Rebuttal: prosecution can bring witness on victim’s character for peacefulness through reputation.
If homicide, pros can introduce evidence corroborating this.

Exception to specific act requirement:
If defendant, at time of alleged self-defense, was aware of the victim’s violent reputation or prior specific acts of violence, such awareness may be proven to show the D’s state of mind – fear – to help prove that he acted reasonably in responding as he did to V’s aggression.

Question 18

What are the rules governing admissibility of victim’s character in a sexual misconduct case?

Answer 18

Under rape shield laws, usually inadmissible:

1. Opinion/reputation about V’s sexual propensity
2. Evidence of specific sexual behavior of victim

Exceptions in criminal cases:

1. Specific sexual behavior to show that semen belonged to someone other than D,
2. Victim’s past sexual activity with D if consent is asserted,
3. Where exclusion would violate defendant’s due process (e.g. love triangle defense)

Wider in civil cases:
Can be admissible if the probative value is not substantially outweighed by risk of undue prejudice

Question 19

When will character evidence be admissible in a civil action?

Answer 19

Neither party can introduce any evidence of character trait of a party to show that a party probably acted in conformity with that trait during the event that gave rise to lawsuit. If the litigant has OTHER purpose and it is relevant, then character evidence won’t keep it out:

1. Tort action alleging negligent hiring or entrustment
2. Tort of defamation
3. A child custody dispute

If a party testifies they automatically place their character of truthfulness in issue, and the other party can present contrary character evidence.

Defendant generally does not get to raise reputation/opinion evidence through a character witness (no “peacefulness” opinions)

Question 20

When will a defendant’s other past crimes be admissible/inadmissible in a criminal case?

Answer 20

Generally, other past crimes will be inadmissible to show criminal propensity (exception for sex crimes). However, if used for non-character purpose may be admissible as part of case-in-chief [MIMIC]

M - Motive
I - Intent (if D’s state of mind is at issue - did he mean to possess drugs or to sell them?)
M - Mistake/accident (or absence thereof)
I - Identity (closeness in time/place to show identification; using the same MO)
C - Common scheme or plan

However, these are all subject to 403 probative/prejudicial.

Question 21

What are ways in which prosecutors can bring in MIMIC-purpose crimes?

Answer 21

1. By conviction OR
2. By evidence (witness etc.) that proves the crime occurred - conditional relevancy standard (special burden of proof): prosecution need only produce sufficient evidence from which a reasonable juror could conclude that D committed other crime

Upon D’s request P must give pretrial notice of intent to introduce MIMIC’s evidence

Court must weigh probative value v. prejudice and give limiting instruction if MIMIC evidence is admitted

In civil cases: if relevant to non-character purpose, MIMIC evidence can also be used in civil cases, such as tort actions for fraud/assault

Question 22

What are rules governing admissibility of evidence regarding other sexual misconduct of defendant?

Answer 22

For the purposes of showing propensity (in sex-crime prosecution or civil action):
- Defendant’s prior specific acts of sexual assault are ADMISSIBLE as part of the case-in-chief of prosecution (in criminal) or of plaintiff (civil) for the purposes of showing D’s propensity for sexual assault!

In case of child molestation, same rule allows prior acts of child molestation.

We allow prior acts only, not reputation or opinion

Question 23

What are rules governing the authentication of writings?

Answer 23

If the relevance of a writing depends on its source or authorship, a showing must be made that the writing is authentic. In the absence of a stipulation to authenticity, a foundation must be made in order for the document to be deemed genuine.

Question 24

What are the methods of authentication (aside from self-authentication)? (5)

Answer 24

1. Witness’s personal knowledge
2. Proof of handwriting (lay person, expert comparison, jury comparison)
3. Proof by circumstantial evidence (appearance, contents, substance, internal patterns, distinctive characteristics)
4. Ancient document rule (20+ years, facially free of suspicion, place of natural custody)
5. Solicited reply doctrine (received in response to prior communication to alleged author)

Question 25

What are self-authenticating documents?

Answer 25

1. Official publications (government)
2. Certified copies of public/private records on file in public office
3. Newspapers or periodicals
4. Trade inscriptions or labels
5. Acknowledgement document (document w/ certification by notary)
6. Commercial paper (e.g. promissory note)

Question 26

How may photos be authenticated?

Answer 26

Witness may testify on the basis of personal knowledge that the photo is a fair and accurate representation of the people/objects portrayed.

Question 27

What is the Best Evidence Rule?

Answer 27

Defintion: Party who seeks to prove the contents of a writing must either produce the original writing or provide an acceptable excuse for its absence. If the court finds the excuse is acceptable, the party may then use secondary evidence (oral testimony, copy).

Writing included sound recordings, x-rays, films.

Question 28

When does the best evidence rule apply?

Answer 28

When the party is seeking to prove the contents of a writing. Two main situations.

1. Writing is a legally operative document (patent, deed, mortgage, divorce decree, written K).
2. Witness is testifying to the facts that she learned solely from reading about them in a writing.

Question 29

When does the Best Evidence Rule NOT apply?

Answer 29

When a witness with personal knowledge testifies to a fact that exists independently of a writing that records the fact

Question 30

What qualifies as an “original writing” for purposes of the Best Evidence Rule?

Answer 30

Whatever the parties intended as the original

1. any counterpart intended to have the same effect (2 copies of lease).
2. any negative of film or print from negative
3. computer print-out from computerized evidence

Question 31

What qualifies as a “duplicate” for purposes of the Best Evidence Rule?

Answer 31

Any counterpart produced by any mechanical means that accurately reproduced the original (e.g. photocopy, carbon copy). Usually photocopies just as good.

Duplicates are admissible to the same extent as the original unless it would be unfair (e.g. photocopy of fuzzy fax, original in color and copy B&W), or genuine question raised as to authenticity of the original.

Note: a handwritten copy is neither the original nor duplicate

Question 32

What are excuses for the non-production of a document, for purposes of the Best Evidence Rule?

Answer 32

1. Lost or cannot be found with due diligence
2. Destroyed without bad faith, OR
3. Cannot be obtained with legal process (beyond subpoena power)

Standard: court must be persuaded by preponderance of evidence that excuse has been established; secondary evidence is then admissible (e.g. testimony based on memory, handwritten copy)

Question 33

What are some escapes from the Best Evidence Rule?

Answer 33

1. Voluminous records as a chart (provided the originals would be admissible, and that the original documents are available to the other party for examination and copying)
2. Certified copies of public records (let’s keep originals with the gov’t)
3. Collateral documents (not very important to the merits - judicial discretion)

Question 34

What are the basic requirements of a competent witness?

Answer 34

1. Personal knowledge

2. Oath or affirmation (doesn’t need to be to supreme being)

Question 35

What is a Dead Man’s Statute?

Answer 35

Witness is not ordinary incompetent merely because they have a legal interest (direct legal stake) in the outcome of litigation. But some states (half) have a “Dead Man’s Act”, which provides that:

1. In a civil action,
2. An interested witness
3. Is incompetent to testify
4. Against the estate of a decedent
5. Concerning a transaction/communications between the interested witness and the decedent.

There is no FRE dead man’s rule - only apply if explicitly asks you to.

Note: even in a Dead Man’s state, a biased person doesn’t have a direct state. You can bring friend clearly on your side, so long as they aren’t P/D.

Question 36

What is a leading question, and when is it allowed?

Answer 36

A form of question which suggests the answer.
Generally not allowed on direct except:
1. Preliminary/introductory matters
2. Youthful/forgetful witness
3. Hostile witness

Allowed on cross.

Question 37

What are the rules governing refreshing recollection?

Answer 37

1. If W’s memory fails him, may show memorandum or any other tangible item to jog memory
2. Adversary has right to: inspect memory-refresher, use it on cross, introduce it into evidence.
3. W cannot read anything into evidence

Anything may be used to refresh recollection.

Question 38

What are the rules governing past recollection recorded?

Answer 38

Will be used when trying to enter into evidence. This is a hearsay exception. Foundation for reading contents of the contents into evidence:

1. Showing writing to the witness fails to jog memory
2. Witness had personal knowledge at the former time
3. Writing was either made or adopted by witness
4. Making or adoption occurred while the event was still fresh in witness’ memory, AND
5. Witness can vouch for accuracy of writing when made/adopted.

CAN be read into evidence
CANNOT be introduced into evidence.

Question 39

When is opinion testimony admissible by a lay witness?

Answer 39

Admissible if:

(1) rationally based on witness’s own perception (personal knowledge) AND
(2) opinion must be helpful to the jury in deciding a fact (court’s discretion)

Examples of “helpful”: drunk/sober, speed of vehicle, sane/insane, emotions of another person, odors, handwriting, character (when permitted)

Question 40

What are the necessary qualifications for an expert witness?

Answer 40

Education and/or experience

Question 41

What is the proper subject matter for an expert witness?

Answer 41

Scientific, technical, other specialized knowledge that will be helpful to a jury in deciding a fact

Question 42

What is the proper basis of an opinion, for expert witness?

Answer 42

1. Opinion must be based on “reasonable degree of probability or reasonable certainty”
2. Three permissible data sources:
   (a) Personal knowledge
   (b) Other evidence in the trial record
   (c) Facts outside the record if the evidence is of a type reasonably relied upon by experts in the particular field in forming an opinion. In general, the contents of those materials shouldn’t be disclosed to jury unless judge makes a determination that it would help the jury evaluate the expert’s opinion. If judge makes that determination, out of court material may be admitted with the warning to consider only in evaluating the quality of the expert’s opinion

Question 43

What are the relevancy and reliability requirements of an expert witness’s opinion?

Answer 43

To be admissible, the expert opinion must be relevant to the issue at hand and sufficiently reliable. Expert must use reliable methods/principles, and apply them reliably to the facts of the case.

Court’s factors in determining reliability of principles and methodology (Daubert) - [TRAP] -
T - Testing of the principles/methods
R - Rate of error
A - Acceptance by other experts in the same discipline (doesn’t require general acceptance, just a factor)
P - Peer review and publication

Note: polygraph tests do not pass the Daubert test. The scientific reliability of polygraph evidence is substantially outweighed by the tendency of its results to mislead and confuse the jury.

Question 44

What is the hearsay exception for a learned treatise in aid of expert testimony?

Answer 44

On direct exam of a party’s own expert witness, relevant portions of a treatise/periodical/pamphlet may be read into evidence as substantive evidence if established as a reliable authority

On cross, can read into evidence to impeach and contradict the expert.

BUT the learned treatise may not be introduced as an exhibit, and can only be used with an expert.

Question 45

What are the “ultimate issue” rules regarding witness testimony?

Answer 45

Opinion testimony (lay or expert) is not objectionable just because it embraces an ultimate issue in the case.

BUT all other requirements for such testimony must be satisfied, including the requirement that it be helpful to the jury (can’t use legal jargon or the legal standard)

In crim cases: can object to ultimate issue testimony if an expert witness seeks to give the direct opinion that a defendant did or didn’t have the relevant mental state

Question 46

What is the proper scope of cross examination for an opposing witness?

Answer 46

Party has a right to cross any opposing witness who testifies at trial. Significant impairment of the right results at minimum in striking witness testimony.

Proper subject matter:

1. Matters that came up on direct
2. Matters that test witness credibility

Question 47

When can an attorney bolster their own witness?

Answer 47

You can’t bolster your own witness’ credibility until their credibility has been attacked.
Note: UNLESS there was a separate legitimate purpose (ex. can present evidence of good honesty when the crime is for embezzlement). That is character evidence that is still admissible.

Can’t offer a prior consistent statement on direct.
Exception: witness prior identification of a person, when the witness is testifying in current case

Impeachment of own witness is permitted without limitation.

Question 48

What are the methods of impeaching a witness?

Answer 48

1. Confront witness - ask them about the impeaching fact with the aim of having witness admit it
2. Prove the impeaching fact with extrinsic evidence (can’t use on bad acts, contradictory facts that are collateral).

When it comes to bias, must confront first before showing extrinsic evidence.

Question 49

How can an attorney cross someone on a prior inconsistent statement?

Answer 49

General purpose must be limited to impeachment only, to suggest that the witness can’t keep story straight, raise doubts w/r/t credibility. Can’t use as substantive evidence (except with party opponents).

Exception: prior inconsistent statements can be used both to impeach and go to SUBSTANTIVE evidence in 2 ways:
if witness is currently subject to cross and if
(a) prior inconsistent made orally, under oath, as part of a formal hearing, proceeding, trial, grand jury proceeding, deposition.
(b) if prior inconsistent statement itself qualifies under independent exception to the hearsay rule.

Extrinsic evidence:

1. Extrinsic evidence is inadmissible if on a minor point
2. W being impeached must be given opportunity to comment (may be given before or after testimony), exception: unless it also qualifies as admission by party opponent.

Summary: Don’t need to confront witness with PIS, can prove later by extrinsic evidence without confrontation, but DO need to give W opportunity to get back on stand either to explain or deny (doesn’t need to be immediate).
Exception if W is opposing party (and then the PIS can always be used as a party admission - even if made informally)

Question 50

How can an attorney impeach a witness for bias, interest, motive to misrepresent?

Answer 50

May be based on any fact that would give a witness reason to testify favorably or negatively about a party’s case (ex. party, friend, relative, employee, expert paid by part, person with grudge against party, prosecution witness testifying pursuant to plea bargain). Purpose: suggest testimony is false or slanted

Requirement: must confront witness on bias while they are on the stand.
If confrontation clause requirements are met, then may prove with extrinsic evidence (rather than on cross).

Question 51

What are the rules governing impeachment for sensory deficiency?

Answer 51

May impeach on anything that could affect witness’ perception or memory (ex. bad eyesight, consuming alcohol or drugs at time of event or on stand)

Confrontation isn’t required.
Extrinsic evidence is allowed.

Question 52

What are the rules governing impeachment for a bad character for truthfulness?

Answer 52

Any witness subject to impeachment by this method.

Confrontation not required.
Extrinsic evidence allowed (indeed required)
Direct attack through reputation or opinion of target witness’s character for truthfulness.
But can’t use specific acts.

Question 53

What are the rules governing impeachment for criminal convictions?

Answer 53

Categories of permissible past convictions:

1. Any criminal conviction, felony/misdemeanor, involving false statements. Judge has no discretion, must let these in.
2. Any other felony other than those found above, UNLESS judge finds it is too prejudicial. Impeachment can take place either on cross or with extrinsic evidence (conviction sheet).
   Factors that make it probative: seriousness, relation to deception/stealth
   Factors that make it prejudicial: similarity to case being tried, inflammatory nature.

Time limit: Conviction must be within 10 years of current trial. If more than 10 years, may not be used unless proponent shows probative value on credibility is substantial

Note: not for substantive evidence, just to show testimony false. Allowed in both criminal and civil. Relevance - person convicted of a crime is more likely to lie under oath.

Method of impeachment: ask witness to admit prior conviction OR introduce record of conviction (extrinsic). Don’t have to confront witness prior to introducing record of conviction.

Question 54

What are the rules of impeachment for a bad act without a conviction?

Answer 54

Must reflect adversely on witness’s character for truthfulness.

1. X-examiner must have good faith basis for inquiry, and permission to make inquiry is subject to court’s discretion
2. Inquiry limited to act of untruthfulness itself, not its consequences (job termination, civil judgment, arrest)

Only permissible procedure is to confront on cross and hope that witness admits it (no extrinsic evidence allowed - even if you can prove he committed).

NOTE: you can allow the extrinsic evidence if the bad act is relevant for a different purpose aside from bad character for truthfulness (bias, e.g.)

Question 55

What is impeachment by contradiction?

Answer 55

A cross examining witness can try to get witness to admit that they said mistake/lie on direct. If witness admits, have proven impeachment by contradiction. If witness denies, extrinsic evidence isn’t allowed if the fact at issue is a collateral contradictory fact (no significant relevance to merits of case, nor does it shed strong light on credibility).

Must be a major point on the testimony.

Question 56

How can an attorney rehabilitate a witness

Answer 56

1. Show W’s good character for truthfulness (when impeachment suggested that W was lying; bring character witness to testify to character for truthfulness through reputation or opinion). That is possible if W was impeached with evidence of bad rep for truthfulness, OR prior crimes, OR prior bad acts. If W impeached on any other method, evidence is ambiguous w/r/t whether this can be admitted.
2. Prior consistent statement to rebut a charge of recent fabrication (admissible prior statement if it was made before the motive to fabricate arose, neutralizing later bias)
3. Prior consistent statement to rebut a contention of inconsistency
4. Prior inconsistent statement to rebut a contention of sensory deficiency (consistent statement right after accident but before sensory issue arose)

If you fit this, the evidence can come in as SUBSTANTIVE evidence.

Question 57

If there is a federal court action based on diversity jurisdiction, whose privilege law applies?

Answer 57

The state whose substantive law applies to parties’ claims and defenses is also the state whose privilege laws are applicable.

They also apply the state law on competency, burdens of proof, and presumptions. Otherwise, apply FRE in all court actions in federal court.

Question 58

What are the elements of attorney-client privilege?

Answer 58

Confidential communication between attorney-client, or representative of either.

Made during a professional/legal consultation, unless privilege is waived by client or exception applies.

Question 59

How define “confidential communication” under attorney-client privilege?

Answer 59

Client must have reasonable expectation of confidentiality.

Communication means the actual exchange between client and attorney (excludes physical evidence, prior existing documents, underlying information). Issues must be legal matters, not business or social advice.

Attorney - member of bar or person client reasonably believes is member of bar; representative (anyone reasonably necessary to facilitate provision - accountant, translator))

Client - includes prospective client.

A communication isn’t the knowledge of facts, just because ou talk to attorney.

Question 60

How does attorney-client privilege work with joint clients?

Answer 60

If two or more clients with common interest consult same attorney, their communications are privileged as to third parties. But if they later have a dispute, privilege does not apply between them.

Question 61

What are ways of waiving attorney-client privilege?

Answer 61

1. Voluntary waiver (only client can waive; continues after client death)
2. Subject matter waiver (multiple privileged communications - a voluntary waiver as to some will also waive those as to others if the (1) partial disclosure is intentional, (2) the disclosed/undisclosed communications concern the same subject matter, (3) fairness requires that disclosed and undisclosed documents be considered together.
3. Inadvertent waiver. An inadvertent disclosure won’t waive privilege so long as privilege-holder (1) took reasonable steps to prevent the disclosure, (2) took reasonable steps to correct the error after it happened.

Question 62

What are exceptions to attorney-client privilege?

Answer 62

1. Future crime or fraud

2. Client puts legal advice in issue

Question 63

What is physician-patient privilege, and when does it apply?

Answer 63

Privilege applies to: Confidential communication or information acquired by physician from patient with purposes of diagnosis/treatment of condition. The privilege cannot be invoked for information dealing with a nonmedical matter (must be necessary for treatment)

Includes psychotherapists.
Federal law - in federal actions based based on federal substantive law, privilege exists only for psychotherapy and not for physical doctors

Exception: if patient expressly/impliedly puts physical or mental condition in issue (e.g. asserts insanity defense)

Question 64

What is the spousal privilege of spousal immunity?

Answer 64

In a criminal case only, the spouse cannot be compelled to testify about anything against the defendant’s spouse (“privilege against adverse spousal testimony”)

Holder of privilege is the witness spouse, not the defendant (witness spouse can voluntarily testify against D)

Exists only during the marriage. If divorced, can be called upon to testify as to something that happened during the marriage if no longer married.

Question 65

What is the spousal privilege re: confidential communications with a spouse?

Answer 65

Applies in both civil and criminal cases.

Spouse is not required AND NOT ALLOWED, in the absence of consent by the other spouse, to disclose confidential communication (statement or act) made by one to other during marriage.

Both are holders of privilege.

If they divorce, but confidential communication was during the marriage, privilege applies.

Confidential communication - must be made in reliance upon the intimacy of the marital relationship, and the privilege survives the marriage. The privilege does not apply, however, if the communication is revealed to a third party.

Question 66

What are the exceptions to spousal privilege?

Answer 66

1. Communications or acts in furtherance of jointly-perpetuated future crime or fraud,
2. Communications or acts destructive of family unit (abuse)
3. In litigation between spouses themselves

Question 67

What is the definition of hearsay?

Answer 67

An out of court statement of a person (oral or written) offered into evidence to prove the truth of the matter asserted. It is inadmissible unless exception or exclusion.

• Does not apply to machines or animals.
• Not hearsay if not offered to prove truth of matter asserted.

EXCLUSIONS (non-hearsay): [even if the definition of hearsay is met]

• Adimissions by a party
• Prior inconsistent statement of a witness in this case, if it was given under oath in legal proceeding
• Prior identification made by a person who is a witness in the CURRENT case

Question 68

What are three types of non-hearsay purposes for admitting an out-of-court statement?

Answer 68

1. Verbal act (legally operative word) - substantive law attaches rights and obligations simply by their being spoken
2. Effect on person who heard or read the statement (put on notice, create fear, create motive, probable cause - prior notice or warning)
3. Circumstantial evidence of speaker’s state of mind (insane statement, asking a question to imply lack of knowledge, knowledge of a fact by the listener)

Question 69

What are the hearsay rules governing prior statements of trial witnesses?

Answer 69

Rule: witness’ own prior statement, if offered to prove truth of the matter asserted, is hearsay and inadmissible unless an exclusion or exception applies.

Three witness-statement exclusions from hearsay (aka not hearsay). Witness is currently subject to cross AND:

1. Witness’ prior statement of identification of a person
2. Witness’s prior inconsistent statement if made orally under oath, if during a formal hearing, trial, proceeding, deposition
3. Witness’ prior consistent statement if being used to rebut a charge of recent fabrication, contention of inconsistency, sensory deficiency.

Question 70

What is a party admission, and what are the rules around it?

Answer 70

AKA statement of opposing party.

A relevant statement made by an opposing party is admissible for its truth if it is offered against the opposing party. It’s non-hearsay (exclusionary).

Analysis for determining whether admission:
1. Party, or employee in scope of employment (when made statement)?
2. Offered by the opposing party?
3. Relevant?
If yes, admission. Never kept out by hearsay, because they are exclusionary.

Methods:

1. Adoptive admission (admission by silence)
2. Vicarious party admission
3. Co-conspirator statement

Question 71

What is adoptive admission?

Answer 71

If party expressly or impliedly adopts a statement made by another person, it is as though the party herself made the statement.

Adoption by silence occurs when a party who hears another person’s statement remains silent under circumstances in which a reasonable person would protest if the statement were false.

Question 72

What is vicarious party admission?

Answer 72

Statement by agent/employee is admissible against principal/employer if statement concerns matter within scope of agency/employment and made during existence of the agency/employment relationship

(can be made 40 years later, so long as it was made within scope)

Question 73

When may a statement of a co-conspirator be admissible against a conspirator

Answer 73

If statement was made:
1. during and
2. in furtherance of
the conspiracy

Question 74

What is the right of confrontation, with regard to a criminal defendant?

Answer 74

6th Amendment confers the right of confrontation - the defendant must be “confronted” with the witnesses against him (opportunity for cross by defendant)

Prosecution may not use a hearsay statement, even if it falls within a hearsay exception, if:

1. Statement is testimonial,
2. Declarant has become unavailable, AND
3. Defendant has had no opportunity for cross-examination

Question 75

What is the meaning of a “testimonial” statement, for purposes of the confrontation clause?

Answer 75

Still being developed, but here are some applications:

TESTIMONIAL

1. Grand jury
2. Statements in response to police interrogation, if the primary purpose of the questioning is to establish/prove past events that are relevant to a later criminal prosecution
3. Sworn affidavits
4. Forensic laboratory, if primary purpose is to accuse targeted individual of criminal conduct (you have to have a suspect - NOTE: even if forensic report is testimonial, no CC violation if prosecution calls testifying expert who performed independent analysis, and only generally refers to report to show partial basis for opinion)

NON-TESTIMONIAL

1. Primary purpose of police questioning is to enable police assistance to meet ongoing emergency (ex. 911 call - crime recently ended, perpetrator armed, still poses threat to victim/police/public).
2. Business records (bank, utility)

Question 76

What are the hearsay exceptions for which unavailability is required?

Answer 76

1. Forfeiture hearsay exception (unavailable due to D’s wrongdoings)
2. Former testimony exception
3. Statement against interest (unavailable declarant’s statement against own interest)
4. Dying declaration

Question 77

What are the hearsay exceptions for which unavailability is immaterial?

Answer 77

1. Excited utterance
2. Present sense impression
3. Present state of mind
4. Declaration of intent
5. Present physical condition
6. Statement made for the purpose of obtaining medical treatment of diagnosis
7. Business records
8. Public records

Question 78

What is the forfeiture hearsay exception to hearsay?

Answer 78

Any type of hearsay statement admissible against the D whose wrongdoing made W unavailable, if court finds:

1. By preponderance of the evidence
2. That D’s wrongdoing was designed to prevent W from testifying

Question 79

What is the former testimony exception to hearsay?

Answer 79

Former testimony of a now-unavailable witness, if given at a former proceeding or in a deposition, is admissible against a party who, on the prior occasion, had an opportunity and motive to cross-examine or develop the testimony of the W.

Issue in both proceedings must be essentially the same.

If there was a prosecution and subsequent tort claim, can’t get in under this exception, because the state/plaintiff are not same party.

Party against whom the testimony is offered, or in civil cases, the predecessor in interest, must have been a party. Predecessor in interest includes someone in privity relationship (grantor/grantee, testator/executor, life tenant/remaindermen, joint tenants).

Question 80

What are grounds for unavailability of a witness?

Answer 80

1. Privilege (witness invokes)
2. Witness is absent from jdn (can’t be found with due diligence, looked all reasonable places, OR beyond subpoena power)
3. Illness/death
4. Lack of memory
5. Stubborn refusal to testify

Witness incarcerated in another state is unavailable in a civil but not a criminal case. Supreme Court has held that the Confrontation Cause requires a greater showing of “unavailability” in criminal cases than in civil cases. Because all states permit extradition of witnesses against the accused in criminal cases, a mere showing of incarceration is insufficient to establish unavailability.

Question 81

What is the statement against interest exception to hearsay?

Answer 81

An unavailable declarant’s statement against their personal interests:

1. Pecuniary interest
2. Proprietary interest
3. Penal interest
4. Must be against interest when made
5. Doesn’t need to be just party opponent
6. Personal knowledge is required
7. Declarant must be unavailable

In a criminal case, statement against penal interest must be supported by circumstances showing trustworthiness of the statement (initial corroborating evidence that the statement is true)

Question 82

What is the dying declaration exception to hearsay?

Answer 82

Statement made under a belief of impending and certain death by now-unavailable declarant concerning cause or surrounding circumstances of declarant’s death.

Criminal case: need a charge of homicide before can use. Attempt doesn’t count!

Need to show declarant gave up all hope of survival.

Dying declaration made to police officer may be testimonial, but likely qualifies as exception.

Question 83

What is the excited utterance exception to hearsay?

Answer 83

Statement concerning startling event and made while declarant is still under the stress of excitement caused by event.

Factors to consider:

1. Nature of event (startling, traumatic)
2. Passage of time (closer in time)
3. Visual clues (exclamatory phrase, excitement-oriented verb, exclamation point)

Question 84

What is the present sense impression exception to hearsay?

Answer 84

Description of an event made while the event is still occurring or immediately thereafter (within a few seconds, not minutes)

Question 85

What is the present state of mind exception to hearsay?

Answer 85

Contemporaneous statement concerning declarant’s present state of mind, feelings, emotions.

Question 86

What is the declaration of intent exception to hearsay? (state of mind)

Answer 86

Statement of declarant intending to do something in the future, including the intent to engage in conduct with another person. Admissible to help establish that the person actually carried out the intention.

Ex. “I’m going to my mother’s house this afternoon.”

Question 87

What is the present physical condition exception to hearsay?

Answer 87

Statement made to anyone about declarant’s current physical condition.

Question 88

What is the statement made for purpose of obtaining medical treatment/diagnosis exception to hearsay?

Answer 88

Statement made to anyone (usually medical personnel) for the purpose of obtaining medical treatment or diagnosis (including diagnosis for expert testimony) if it concerns:

1. Present symptoms
2. Past symptoms, OR
3. General cause of D’s condition.

Does NOT include statements re: details of liability or the identity of the tortfeasor, unless it is the identity of the abuser in a domestic abuse/child abuse case, because then it does become germane to the diagnosis.

Exception does not include oral statements made by physician to patient (distinguish written entries made by physician in business records)

Question 89

What is the business record exception to hearsay?

Answer 89

Elements:

1. Records of a business of any type
2. Made in the regular course of business
3. Business routinely keeps such records
4. Record was made contemporaneously

Contents consist either of:

1. Information observed by employees of the business, OR
2. Statement that falls within independent hearsay exception.

Note: the person making the record does not need firsthand knowledge of the information; it can be learned from other business personnel.

If admissible, it is admissible to prove both what is in and is not in the record.

Proving foundation: call sponsoring witness to testify to five elements (need not be author, can be custodian or other person within business), OR written certification under oath attesting to the elements.

Question 90

What is the public records exception to hearsay?

Answer 90

Records of a public office or agency setting forth:

1. Activities of the office or agency (e.g. payroll records), or
2. Matters observed pursuant to a duty imposed by law
3. Findings of fact or opinion resulting from an investigation authorized by law.

Exclusion:
- Police reports prepared for prosecution are not admissible against D in a criminal case.
Nor is prosecution in such cases allowed to introduce such reports against D under alternative theory of business records.

Question 91

What is hearsay within hearsay?

Answer 91

If hearsay statement is included within another hearsay statement, evidence is inadmissible unless each statement falls within hearsay exception.

Question 92

What are impeachment rights once a hearsay statement is admitted?

Answer 92

When a hearsay statement is admitted, the party against whom it is offered may impeach the declarant’s credibility by evidence that would be admissible if the declarant had testified.

Question 93

When is judicial notice appropriate?

Answer 93

When the fact is indisputable or when it can be verified through scientific principles.

Question 94

What is the effect of judicial notice?

Answer 94

Criminal: jury MAY but is not required to conclude that the fact is established. Prosecutor has met the burden of PRODUCING evidence on the fact judicially noticed is satisfied. This does NOT mean that he has met the burden of persuasion (because the jury decides that).

Civil: fact judicially noticed is conclusively established. Court must instruct the jury to accept the judicially noticed fact as conclusive.

Question 95

What is impeachment?

Answer 95

Evidence offered to show that a witness who testified might not be telling the truth.

Major ways to do this:

1. Prior inconsistent statement
2. Bias
3. Prior conviction
4. Prior bad acts
5. Reputation for untruthfulness
6. Contradiction

Question 96

What are the requirements for admitting an object?

Answer 96

Proponent must establish some information to prove that the object is what the proponent claims it is. Must do that through authentication: enough additional evidence sufficient to purport a finding that the evidence is what the proponent claims. Most often, authentication is from person with firsthand knowledge of the object.

Ex. Skunk smelling coat - how can we know this coat is the one at issue?

Question 97

Are statements of fact concerning personal or family history contained in family Bibles, engravings on tombstones etc. admissible?

Answer 97

Yes, and the declarant need not be unavailable