Evidence

Question 1

Relevance

Answer 1

• To be admissible, evidence must be relevant. Evidence must be both logically AND legally relevant.

Question 2

California Proposition 8

Answer 2

• Under Proposition 8 of the California Constitution, all relevant evidence is ADMISSIBLE in a criminal trial.
• However, such evidence is still subject to CEC 352 balancing (whether the probative value is substantially outweighed by the risk of unfair prejudice, confusion of issues, misleading to the jury, or being needlessly cumulative).

Question 3

Subsequent Remedial Measures

Answer 3

• Evidence of subsequent remedial measures is NOT admissible to show culpability or negligence. Under the FRE, evidence of subsequent remedial measures is also NOT admissible in strict products liability cases (to prove a defect in a product/design or a need for a warning/instruction).
• However, the court may admit such evidence for other purposes, such as: (i) impeachment; or (ii) to prove a disputed issue as to ownership, control, or feasibility/impossibility of precautionary measures

Question 4

Evidence of Liability Insurance

Answer 4

• Evidence of liability insurance is NOT admissible to prove culpability (that a person acted negligently or wrongfully). However, the court may admit such evidence for another purpose, such as proving bias/prejudice of a witness, or proving agency, ownership, or control

Question 5

Offers to Pay Medical Bills

Answer 5

• Evidence of paying or promising/offering to pay medical expenses or bills is NOT admissible to prove liability (even if there is no disputed claim). Under the FRE, any related statements or factual admissions (other than the offer to pay) ARE ADMISSIBLE. In CA, related factual statements are NOT admissible

Question 6

Offers to Settle

Answer 6

• Offers to compromise, and statements made during settlement negotiations are NOT admissible to: (a) prove the validity or amount of a disputed claim (the claim must be filed or threatened); OR (b) to impeach by a prior inconsistent statement or contradiction. However, the court may admit such evidence for another purpose, such as proving bias/prejudice of a witness, negating a contention of undue delay, or proving obstruction in a criminal matter.
• CA also excludes written/oral statements made during mediation proceedings

Question 7

Statements of Sympathy

Answer 7

• In CA, statements of sympathy made to a person or their family are NOT admissible in a civil case as evidence of an admission of liability. Any accompanying statements of fault are admissible.
• Under the FRE, no such exclusion exists

Question 8

Authentication of Evidence: General Rule

Answer 8

• All evidence MUST be authenticated before being admitted into evidence. A party must prove that the item it seeks to admit is actually what the party purports it to be, UNLESS the parties stipulate otherwise

Question 9

Physical Evidence

Answer 9

• Physical evidence may be authenticated through: (a) witness testimony; OR (b) by evidence that shows it has been held in a substantially unbroken chain of custody

Question 10

Voice Recordings

Answer 10

• Voice recordings may be authenticated by anyone who has (1) heard the person speak (either first hand or electronically); AND (2) identified the recorded person as the speaker

Question 11

Best Evidence Rule

Answer 11

• 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 a writing; OR (b) testifies to knowledge gained solely from a writing.
• Under the FRE, handwritten duplicates are NOT admissible. In CA, handwritten duplicates ARE admissible

Question 12

Character Evidence

Answer 12

• Generally, evidence of a person’s character is NOT admissible to show propensity (that on a particular occasion the person acted in conformity with the character trait). HOWEVER, character evidence is generally admissible for any non-propensity purpose, such as when character is an ultimate issue in a case (i.e. defamation) or to impeach.
• Notwithstanding the above, character evidence may be offered as circumstantial evidence to prove propensity in certain limited circumstances: o Defendant’s Character: In criminal cases, a defendant may always introduce evidence of his own character. The prosecution is NOT allowed to present evidence of the defendant’s character to prove propensity UNLESS the defendant first presents evidence of his own character (the defendant “opens the door”). ▪ In CA, the prosecution can initiate a showing of defendant’s acts of domestic violence or elder abuse. o Victim’s Character: Except in cases involving rape, a defendant may offer evidence of the victim’s character to prove the defendant’s innocence. If the defendant presents such evidence, the prosecution may present evidence of the: (a) victim’s good character for the same trait; or (b) defendant’s same bad character trait (in CA it is limited only to violent character trait). o Under the FRE, in a Homicide Case the prosecution may offer evidence of the victim’s character for peacefulness ONLY IF the defendant claims the victim was the aggressor (self-defense). In CA, no such rule exists. o For Sex-Offense Cases involving alleged sexual misconduct, evidence offered to prove a victim’s sexual behavior or predisposition is generally NOT admissible. However, certain exceptions to this rule exist. ▪ In a criminal case, the court may admit: (a) evidence of specific instances of a victim’s sexual behavior if offered to prove that the defendant was not involved in the sex crime; (b) evidence of sexual relations between the defendant and victim if offered (i) by the defendant to prove consent, or (ii) by the prosecutor for any reason; and (c) evidence whose exclusion would violate the defendant’s constitutional rights. o Civil Cases: Character evidence CANNOT be introduced in a civil case to prove propensity, unless the exception for sex-offense cases applies (see above). In CA, there is no exception for sex-offense cases. • Methods of Proving Character: o Under the FRE, when character evidence is admissible, it may be proven in the following ways: (1) on direct examination by opinion testimony or testimony of reputation in the community; OR (2) on cross examination of the character witness by opinion, reputation, or specific acts. o In CA, the defendant’s character may only be proven by opinion or reputation; and a victim’s character may be proven by opinion, reputation, or specific acts

Question 13

Prior Bad Acts

Answer 13

• Evidence of prior bad acts (crimes, wrongs, or acts) is NOT admissible to show propensity (that on a particular occasion the person acted in conformity with a character trait). • However, evidence of prior bad acts may be admissible for other relevant non-propensity purposes, such as proving Motive, Identity, Absence of Mistake or Accident, Intent, a Common Plan or Scheme, Opportunity, or Preparation

Question 14

Habit and Routine Practice

Answer 14

• Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the party acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or if there was an eyewitness.
• A habit is a regular response to a repeated situation (i.e. going down a stairway two stairs at a time), and usually has four key elements: (1) specificity; (2) repetition; (3) duration; AND (4) is semi-automatic or reflexive. Usually, courts limit habit evidence to behaviors that are semiautomatic or reflexive

Question 15

Prior Inconsistent Statements

Answer 15

• Prior inconsistent statements are admissible to impeach a witness’s trial testimony. A party DOES NOT need to show or disclose the contents of the prior statement when examining a witness on it, but must (on request) show it or disclose its contents to the adverse party’s attorney. o Extrinsic evidence is admissible only if: (1) relevant to a material issue at trial (one other than the witness’s credibility); AND (2) a proper foundation is shown – (i) the witness is first given an opportunity to explain or deny the statement, and (ii) the adverse party is given an opportunity to examine the witness about it. HOWEVER, the above limitation on extrinsic evidence is not applicable to statements by a party opponent.
• In CA, a prior inconsistent statement is admissible as nonhearsay when offered only to impeach a witness. A prior inconsistent statement will be deemed hearsay if offered to prove the truth of the statement (but may still be admissible if a hearsay exception applies)

Question 16

Prior Convictions

Answer 16

• Under the FRE, evidence of prior convictions may be admitted to attack a witness’s character for truthfulness in certain instances. o Prior felony or misdemeanor convictions involving dishonesty (a dishonest act or false statement) are ALWAYS admissible to impeach a witness (the judge has no discretion to exclude it). All other misdemeanors are NOT admissible to impeach. o Felonies that DO NOT involve dishonesty are admissible in the following cases: (1) in a civil or criminal case where the witness is not a defendant (subject to the FRE 403 exclusions); and (2) in a criminal case where the witness is a defendant, but only if the probative value outweighs its prejudicial effect. o Notwithstanding the above, if 10-years have passed since the later of the witness’s conviction or release from confinement, evidence of the conviction is admissible only if: (1) its probative value substantially outweighs its prejudicial effect and; and (2) proper notice was given.
• In CA, prior felony convictions involving moral turpitude are ADMISSIBLE to impeach, subject to CEC 352 balancing. Felonies that do not involve moral turpitude are NOT ADMISSIBLE. In a criminal case, misdemeanors are ADMISSIBLE under Proposition 8 for crimes involving moral turpitude (subject to CEC 352 balancing). Otherwise, misdemeanor convictions are NOT ADMISSIBLE. o Moral Turpitude is a broad standard, and includes crimes involving lying, violence, sex crimes, and extreme recklessness

Question 17

Specific Instances of Conduct (“Bad Acts”)

Answer 17

• Under the FRE, a witness’s credibility may be attacked on cross-examination by questioning him with specific instances of conduct (i.e. prior bad acts) ONLY IF the conduct is probative of the witness’s character for truthfulness or untruthfulness. However, extrinsic evidence is NEVER admissible to attack or support such instances of a witness’s credibility. Even if a witness lies or denies a specific instance of conduct, he CANNOT be contradicted by extrinsic evidence, such as documentary evidence or by testimony of another witness to show that the witness is lying.
• In CA, prior bad acts (specific instances of conduct) are generally NOT ADMISSIBLE. However, prior bad acts are admissible under Proposition 8 only if the act(s) involve moral turpitude. In such instances, the use of extrinsic evidence is permitted on cross-examination

Question 18

Lay Witness Testimony

Answer 18

• A lay witness is any person who gives testimony in a case that is NOT called as an expert. A lay witness’s testimony is admissible if he is competent to testify. To be competent, the witness must: (1) take an oath to tell the truth; AND (2) have the capacity to perceive, recall, and communicate. Additionally, a witness may only testify to matters of which he has personal knowledge. o Under the FRE, competency is presumed except for the presiding judge and jurors. o In CA, in addition to the above competency factors, the witness must also understand the legal duty to tell the truth. Also, the presiding judge and jurors may testify if there is no objection.
• A lay witness may only offer an opinion if it is: (1) rationally based on the witness’s perception; AND (2) helpful to clearly understand the witness’s testimony or to determine a fact in issue (legal conclusions are not helpful). Additionally, under the FRE, the opinion cannot based on scientific, technical, or other specialized knowledge

Question 19

Expert Witness Testimony

Answer 19

• Expert testimony is permitted when: (1) the witness is qualified as an expert; (2) the opinion is helpful to the jury (if an average jury could not figure the issue out for themselves); (3) the witness believes in the opinion to a reasonable degree of certainty; (4) the opinion is supported by sufficient facts or data (i.e. documentary evidence, personal knowledge, examination); AND (5) the opinion is based on reliable principles and methods that were reliably applied.
• Under the FRE Daubert/Kumho standard, reliability is based on a methodology’s: (1) publication/peer review; (2) error rate; (3) testability; AND (4) whether it is generally accepted in the field. • Under CA’s Kelley/Frye standard, reliability is based on whether a methodology is generally accepted in the field.

Question 20

Cross-Examination

Answer 20

• The scope of cross-examination is limited to: (1) the subject matter of the direct examination; AND (2) matters affecting the witness’s credibility

Question 21

Refreshing Recollection

Answer 21

• Refreshing a witness’s recollection using a document is permitted when (1) the witness once had personal knowledge of the matter, (2) but is unable to recall the matter while testifying [in CA the refreshing may be done prior to or during trial]. When refreshing recollection, the witness will be able to read the document. However, only the opposing party may offer the document into evidence if it is otherwise inadmissible (but it may be admitted by the offering party if admissible under another ground, such as a recorded recollection). The opposing party is also entitled to have the document produced at the hearing/trial, to inspect it, and to cross-examine the witness about it

Question 22

Judicial Notice

Answer 22

• A court may take judicial notice of indisputable facts that are either: (a) commonly known in the community; OR (b) readily capable of verification and cannot reasonably be questioned. The court may take judicial notice at any stage of the proceeding.
• Under the FRE: In a civil case, the court must instruct the jury to accept the noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive.
• In CA: Judicially noticed facts are conclusive in BOTH civil and criminal cases

Question 23

Assumes Facts Not in Evidence

Answer 23

• A question that assumes facts not in evidence OR incorporates facts that have not yet been entered into evidence

Question 24

Calls for Narrative

Answer 24

• A question that calls for a narrative is open ended and requires more than a short response

Question 25

Leading Question

Answer 25

• A leading question is one that suggests an answer to the witness. Leading questions are permitted on crossexamination, but NOT on direct examination UNLESS (a) the witness is hostile, an adverse party, or identified with the adverse party; (b) it clarifies background information; OR (c) the witness has difficulty remembering. In CA, leading questions are only permitted on direct in the interests of justice

Question 26

Non-Responsive Answer

Answer 26

• A non-responsive answer provides more information than the question asked for.

Question 27

Speculation

Answer 27

• A witness may ONLY testify to personal knowledge and cannot speculate

Question 28

Vagueness

Answer 28

• An attorney should not ask vague or open-ended questions

Question 29

Prohibition Against Jury Investigations

Answer 29

• Juries are prohibited from conducting independent investigations of the case. Such conduct may result in a mistrial for the defendant

Question 30

Hearsay Definition

Answer 30

• Hearsay is (1) an out-of-court statement, (2) that is offered to prove the truth of the matter asserted. Hearsay is ONLY admissible if it falls under an exception. A “statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion. However, if the act DOES NOT assert or communicate anything (i.e. crying), it is not deemed a statement for hearsay purposes

Question 31

Multiple Hearsay

Answer 31

• When evidence contains hearsay within hearsay (multiple or double hearsay), each level of hearsay must fall within an exception to be admissible

Question 32

Statements Offered for Other Purpose

Answer 32

• If an out-of-court statement is offered to prove something other than the truth of the statement, it is non-hearsay and is ADMISSIBLE. Common non-hearsay statements include: (1) verbal acts of independent legal significance (i.e. a contract was formed); (2) statements offered to show the effect on the listener; (3) a prior inconsistent statement used to impeach; and (4) circumstantial evidence of the speaker’s state of mind

Question 33

Statements by a Party Opponent

Answer 33

• A statement/admission by a party opponent is NOT hearsay and is ADMISSIBLE. Under the FRE, statements by a party opponent are deemed to be non-hearsay. In CA, such statements are an exception to the hearsay rule

Question 34

Adoptive Admission

Answer 34

• A person’s silence may constitute an adopted admission if: (1) the person heard the statement; AND (2) a reasonable person would have denied the statement. An adoptive admission is excluded from hearsay under the Statements by a Party Opponent hearsay rule

Question 35

Vicarious Admissions

Answer 35

• A vicarious admission is excluded from hearsay under the Statements by a Party Opponent hearsay rule. Vicarious admissions are those made by: (a) an authorized spokesperson; (b) a principal or agent made during/within the scope of the agency relationship; OR (c) coconspirators.
• In CA, there is no principal agent situation, BUT in respondeat superior civil cases, statements made by an employee are admissible if the employee’s negligent conduct is the basis for the employer’s liability

Question 36

Prior Statement of Identification

Answer 36

• Under the FRE, a declarant’s prior statement of identification of a person is NOT hearsay if: (1) the declarant testifies; AND (2) is subject to cross-examination about the prior statement.
• In CA, statements previously made by a witness are an exception to the hearsay rule if: (1) the statement identifies someone who participated in a crime or other occurrence; (2) the statement was made at the time the crime or occurrence was fresh in the witness’s mind; AND (3) before the evidence of the statement is offered, the witness testifies that he made the identification and that it was a true reflection of his opinion at that time

Question 37

Declarant Unavailable Requirement

Answer 37

• A declarant is deemed unavailable as a witness if he: (a) is exempted from testifying due to privilege; (b) refuses to testify despite a court order to do so [does not apply in CA]; (c) testifies that he does not remember the subject matter; (d) cannot be present to testify because of death or illness; OR (e) is beyond the reach of a court’s subpoena, and his attendance cannot be procured by reasonable means. The unavailability of the declarant must not have been caused by either party

Question 38

Dying Declaration

Answer 38

• A dying declaration is an exception to the hearsay rule, and MAY ONLY be used in either: (a) a civil case; OR (b) a criminal homicide case [in CA can be used in any criminal case].
• In order to be admissible: (1) the declarant must be unavailable [in CA the declarant must be dead]; (2) the statement was made under a sense of impending death; AND (3) the statement was about the circumstances or cause that put the declarant in the position of impending death [in CA statement must concern what kill him]

Question 39

Statement Against Interest

Answer 39

• A statement made against one’s own penal, proprietary, or pecuniary interest is an exception to the hearsay rule, and is admissible when the declarant is unavailable.
• In CA, statements against one’s societal interests are also admissible.
• Under the FRE, if a statement against interest is offered in a criminal case, it MUST be supported by corroborating circumstances that clearly indicate its trustworthiness

Question 40

Prior Statements Made Under Oath

Answer 40

• Prior statements made under oath are admissible if: (1) the statements are offered against a party who was present in the previous trial (in a civil case, a party who was in privity with the party in the previous case is sufficient); (2) the same issues are involved; AND (3) the party who it is offered against had the same motive and opportunity to cross examine the witness in the previous trial. This exception applies only if the declarant is unavailable.
• In CA, the party whom the statements are offered against DOES NOT have to be in privity with a party in the previous case (the parties sharing similar interests is sufficient)

Question 41

Excited Utterance / Spontaneous Statement

Answer 41

• An excited utterance is an exception to the hearsay rule. An excited utterance is a statement (1) relating to a startling event or condition, (2) made while the declarant was under the stress of excitement that the event/condition caused. There can be a slight delay between the event and the statement. In CA, this exception is referred to as a Spontaneous Statement

Question 42

Present Sense Impression

Answer 42

• Present sense impression is an exception to the hearsay rule. A present sense impression is a statement describing an event made by the declarant: (a) while observing the event; OR (b) immediately thereafter. A few minutes after the event is within the period contemplated under this hearsay exception.
• In CA, this exception is referred to as a Contemporaneous Statement, and it only applies when the statement: (1) is offered to explain, qualify, or make understandable conduct of the declarant; AND (2) was made while the declarant was engaged in such conduct

Question 43

Business Records

Answer 43

• Business records are an exception to the hearsay rule.
• Under the FRE, a business record is admissible if it is: (1) a record of events, conditions, opinions, or diagnoses; (2) kept in the regular course of business; (3) made at or near the time of the matter described; (4) made by a person with knowledge of the matter; (5) is the regular practice of the business to make such a record; AND (6) the opponent party does not show that the record was made under circumstances indicating a lack of trustworthiness. The witness who lays the business records foundation DOES NOT need be the author of the record or attest to its accuracy.
• In CA, the business record exception DOES NOT include records of opinions or diagnosis (even though courts usually do admit simple opinions and diagnosis). Additionally, the party introducing the business record has the burden of showing that the record was made under circumstances indicating trustworthiness

Question 44

Government/Public Records

Answer 44

• Under the FRE, the following records are admissible under the government or public records hearsay exception: (1) a record describing the policies and practices of a public office; (2) observations made by someone in accordance with his duties by law (except police reports in criminal cases); (3) factual findings from a legally authorized investigation (but are only admissible in civil cases or against the government in criminal cases). HOWEVER, if the opposing party shows that the record was made under circumstances indicating a lack of trustworthiness, the record will NOT be admitted.
• In CA, government or public records are admissible as long as the writing was (1) made by and within the scope of duty of a public employee; (2) made at or near the time of the act, condition, or event; AND (3) the record was made under circumstances indicating trustworthiness. This exception applies to civil and criminal cases, though there may be confrontation clause issues when such records are used against the defendant in a criminal case.

Question 45

Past Recollection Recorded

Answer 45

• A past recollection recorded is a record made on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately.
• A past recollection recorded is an exception to the hearsay rule, and is admissible if: (1) the witness had personal knowledge of the events at one time; (2) the writing was made or adopted by the witness; (3) the writing was made while the events were still fresh in the mind of the witness; (4) the writing is accurate; AND (5) the witness can no longer remember the event. If admitted, the record MAY be read into evidence. However, the record MAY ONLY be received as an exhibit if it is offered by an adverse party

Question 46

State of Mind

Answer 46

• Statements of the declarant’s then-existing state of mind (i.e. motive, intent, or plan) OR emotional, sensory, or physical condition are an exception to the hearsay rule. However, statements of memory or belief offered to prove a fact remembered/believed is NOT admissible UNLESS it relates to the validity or terms of the declarant’s will

Question 47

Statements Made for Medical Treatment

Answer 47

• A statement is NOT excluded by the hearsay rule when the statement: (1) is made for and reasonably pertinent to medical diagnosis or treatment; AND (2) describes medical history or symptoms (past or present). Statements not relevant to medical diagnosis or treatment (i.e. statements of fault) generally DO NOT fall within this hearsay exception.
• In CA, statements concerning a person’s past physical state are admissible ONLY IF they were made to medical personnel for the diagnosis or treatment of a childabuse/neglect victim less than 12 years of age

Question 48

Hearsay Catch-All Exception

Answer 48

• Under the FRE, a hearsay statement is NOT excluded by the rule against hearsay (even if the statement is not specifically covered by a hearsay exception) when the statement: (1) has equivalent circumstantial guarantees of trustworthiness; (2) is offered as evidence of a material fact; (3) is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; AND (4) admitting it will best serve the interests of justice. The statement is admissible ONLY IF the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant’s name and address, so that the party has a fair opportunity to oppose its introduction.
• California (CA) does not have a catch-all hearsay exception

Question 49

Confrontation Clause (6th Amendment)

Answer 49

• The Sixth Amendment’s Confrontation Clause (as applied to the states via the Fourteenth Amendment) gives a criminal defendant the right to confront witnesses against him. The use of an out-of-court statement (even if it falls within a hearsay exception or exemption) violates a defendant’s Sixth Amendment rights when: (1) the statement is “testimonial”; (2) the declarant is unavailable to be crossexamined at trial; AND (3) the defendant did not have an opportunity to cross-examine the declarant before trial. This prohibition is subject to some exceptions, such as dying declarations and wrongdoing by the defendant.
• Courts have held that the following statements are testimonial in nature: (a) statements made to grand juries (and in other similar situations); and (b) statements made to the police whose primary purpose (when viewed objectively) is to collect testimony to be used at a later trial. HOWEVER, statements made to the police where the primary purpose of the questioning was to assist the police in an ongoing emergency are NOT considered testimonial. • When determining whether a statement is testimonial, consider the primary purpose of the conversation, and whether there is some intent to preserve for trial what is being said. For example, where the primary purpose of a police interrogation is to gather evidence, any statements made are testimonial. However, where the primary purpose of a police interrogation is to assist in an ongoing emergency, any statements made are NOT testimonial.

Question 50

Privilege & Eavesdroppers

Answer 50

• Unknown eavesdroppers DO NOT destroy privilege. However known or anticipated eavesdroppers WILL destroy privilege.

Question 51

Attorney-Client Privilege

Answer 51

• The attorney-client privilege protects confidential communications between an attorney and client from disclosure if: (1) the communication was confidential (it was not knowingly made in front of third-parties); AND (2) the communication was made to facilitate legal services. Such communications remain privileged even after the client dies. When the client is a corporation, only communications between the attorney and high-level employees are protected.
• The privilege DOES NOT apply when: (a) legal services are sought to further a crime or fraud; (b) there is litigation related to a breach of duty between the attorney and client; OR (c) joint clients are later involved in civil litigation.
• The client holds the privilege and may waive it at any time, including by disclosure to a third party. However, privilege is NOT waived through inadvertent disclosure to a third party.
• In CA, privilege DOES NOT survive the client. In addition to the above exceptions, the privilege DOES NOT apply if the attorney reasonably believes disclosure is necessary to prevent a crime that is likely to result in substantial bodily harm or death

Question 52

Attorney Work Product

Answer 52

• In Federal court, the work product doctrine protects ALL materials prepared by an attorney or his agents in anticipation of or during litigation. Such materials are protected from disclosure UNLESS a party can show: (1) a substantial need for the materials exist; AND (2) a substantial equivalent of the materials cannot be obtained without undue hardship.
• In California, the work product privilege applies solely to materials prepared by the attorney in anticipation of litigation. This is unlike the federal rules, where the work product doctrine applies generally to materials prepared in anticipation of litigation. o Absolute Privilege: Materials prepared in anticipation of litigation that are comprised of the attorney’s mental impressions, notes, or opinions, are absolutely protected and are NOT discoverable. o Qualified Privilege: Other materials prepared in anticipation of litigation are deemed as qualified work product. These materials MAY be discoverable upon a showing of substantial need and inability to acquire the materials elsewhere.

Question 53

Physician-Patient Privilege

Answer 53

• In California, confidential patient communications made to a physician for the purpose of medical diagnosis or treatment ARE PRIVILEGED. This includes any diagnosis, advice given by the physician, and information obtained during an examination. The patient holds the privilege (not the physician), and only the patient can invoke or waive it. The privilege may be waived by the patient when the medical condition is placed “in issue” (i.e. a personal injury lawsuit relating to the condition).
• Federal courts DO NOT recognize a Physician-Patient Privilege. However, under the FRE, state law governs privilege for civil cases regarding a claim or defense for which state law supplies the rule of decision.

Question 54

Confidential Marital Communications

Answer 54

• Communications between a husband and wife are privileged in both civil and criminal cases if: (1) made during the course of a valid marriage; AND (2) were intended to be confidential. The privilege is held by both spouses (either may assert it), and applies even after divorce. If a spouse divulges the content of communications to a third-party, the privilege for those disclosed communications no longer applies.

Question 55

Spousal Immunity

Answer 55

• Under the FRE, a witness-spouse in a valid marriage may refuse to testify against his or her spouse in a criminal case (even if the spouse is not a defendant). The witness-spouse alone holds the privilege, and the privilege ends after divorce. Spousal immunity DOES NOT apply in civil cases.
• In CA, the spouse holding the privilege may refuse to testify in both civil and criminal cases.