Evidence CA: Auth, Priv, Real Evidence Flashcards
Ancient Documents - Authentication
A document can be authenticated by evidence that it is sufficiently old, IF it is in a condition that creates no suspicion as to authenticity, and was found in a place where such a writing would be kept.
Under the Federal Rules, a document qualifies as “ancient” if it is at least 20 years old.
In California, the document must be more than 30 years old.
Ancient Documents - how old does it have to be?
Under the Federal Rules, a document qualifies as “ancient” if it is at least 20 years old.
In California, the document must be more than 30 years old.
Ancient Documents - Related Hearsay Exception
There is also a hearsay exception for ancient documents (meaning, an authenticated ancient document can be offered for the truth of its contents under a specific exception).
FED: The federal hearsay exception for related documents applies to documents prepared before 1998.
CA: In California, the timing requirement is the same as for authentication—the hearsay exception applies to documents that are more than 30 years old.
CA: Ancient documents- Both authenticiation and hearsay exception require document be…
Both authenticiation and hearsay exception require document be more than 30 years old.
Self-Authenticating Writings
Authentication is unnecessary for certain writings (for example, certified public records, notarized documents, newspapers).
Federal and California law recognize a similar list of self-authenticating documents.
However, in California, trade inscriptions and certified business records are not self-authenticating.
In California, ___ and ___ are not self-authenticating.
In California, trade inscriptions and certified business records are not self-authenticating. They ARE under Federal Law
BEST EVIDENCE RULE/SECONDARY EVIDENCE RULE
When a party seeks to prove the contents of a writing, recording, or photograph- the best evidence rule requires the party to produce the original (subject to many exceptions).
In California, the best evidence rule is called the “secondary evidence rule.” (This rule is exempt from Prop. 8 in California. This means that, even in a criminal case, the secondary evidence rule applies.)
BEST EVIDENCE RULE called ___ in CA?
SECONDARY EVIDENCE RULE
Best Evidence Rule: Admissibility of Duplicates and Other Secondary Evidence
FED: Under the Federal Rules, where the best evidence rule applies, a “duplicate” (meaning, an exact copy made by mechanical means, like a photocopy or carbon copy) is usually admissible to the same extent as the original (unless it would be unfair to do so, or a genuine question is raised about the authenticity of the original). Secondary evidence of the contents of the writing, such as handwritten or otherwise reconstructed copies, or oral testimony, is not admissible unless a satisfactory excuse is given for the non-production of the original.
CA: In CA, where the secondary evidence rule applies, duplicates and any written secondary evidence of the contents of the original—such as reconstructed or handwritten copies—are all usually ADMISSABLE (unless, as above, it would be unfair to do so, or a genuine question is raised about the authenticity of the original). Oral testimony about the contents of the writing is not admissible unless a satisfactory excuse is given for non-production of the original.
Best Evidence Rule: Admissibility of Duplicates and Other Secondary Evidence (FEDERAL)
FED: Under the Federal Rules, where the best evidence rule applies, a “duplicate” (meaning, an exact copy made by mechanical means, like a photocopy or carbon copy) is usually admissible to the same extent as the original (unless it would be unfair to do so, or a genuine question is raised about the authenticity of the original). Secondary evidence of the contents of the writing, such as handwritten or otherwise reconstructed copies, or oral testimony, is not admissible unless a satisfactory excuse is given for the non-production of the original.
Best Evidence Rule: Admissibility of Duplicates and Other Secondary Evidence (CALIFORNIA)
CA: In CA, where the secondary evidence rule applies, duplicates and any written secondary evidence of the contents of the original—such as reconstructed or handwritten copies—are all usually ADMISSABLE (unless, as above, it would be unfair to do so, or a genuine question is raised about the authenticity of the original). Oral testimony about the contents of the writing is not admissible unless a satisfactory excuse is given for non-production of the original.
Best Evidence Rule: Duplicates
FED: Under the Federal Rules, where the best evidence rule applies, a “duplicate” (meaning, an exact copy made by mechanical means, like a photocopy or carbon copy) is usually admissible to the same extent as the original (unless it would be unfair to do so, or a genuine question is raised about the authenticity of the original).
CA: In CA, where the secondary evidence rule applies, duplicates and any written secondary evidence of the contents of the original—such as reconstructed or handwritten copies—are all usually ADMISSABLE (unless, as above, it would be unfair to do so, or a genuine question is raised about the authenticity of the original). Oral testimony about the contents of the writing is not admissible unless a satisfactory excuse is given for non-production of the original.
Best Evidence Rule: Secondary evidence of the contents
FED: Under the Federal Rules, where the best evidence rule applies, Secondary evidence of the contents of the writing, such as handwritten or otherwise reconstructed copies, or oral testimony, is not admissible unless a satisfactory excuse is given for the non-production of the original.
CA: In CA, where the secondary evidence rule applies, duplicates and any written secondary evidence of the contents of the original—such as reconstructed or handwritten copies—are all usually ADMISSABLE (unless, as above, it would be unfair to do so, or a genuine question is raised about the authenticity of the original). Oral testimony about the contents of the writing is not admissible unless a satisfactory excuse is given for non-production of the original.
Best Evidence Rule: In CA, Oral testimony about the contents of the writing is…
Oral testimony about the contents of the writing is not admissible unless a satisfactory excuse is given for non-production of the original.
Tesimonial Privileges and Prop 8
In California, most privilege law is exempt from Prop. 8. This means that, even in a criminal case, the usual rules of privilege apply. Don’t forget that California privilege law applies in a civil action brought in a California federal court under diversity jurisdiction.
California privilege law applies in…
California privilege law applies in a civil action brought in a California federal court under diversity jurisdiction.
Confidentiality in CA
Confidentiality btwn persons in prviilged relationsip PRESUMED confidential. In Fed, its only presumed for marital.
GENERAL CONSIDERATIONS—CONFIDENTIALITY
In California, a communication made between persons in a privileged relationship is presumed to have been made in confidence. This is true even if the communication was transmitted electronically. The proponent has the burden of proof to establish that the communica- tion was not confidential.
Federal courts do not recognize a presumption of confidentiality for all privileges, though it has been held that communications made between spouses (for purposes of the confidential marital communications privilege, infra) are presumed to be privileged.
ATTORNEY-CLIENT PRIVILEGE
Under federal and California law, the attorney-client privilege applies to confidential communications between the attorney and client (or the representatives of either) made during a professional legal consultation to obtain legal services, unless the privilege is waived or an exception applies.
AC Privilege: Duration of Privilege
FED: Under federal law, the privilege survives the death of the client.
CA: In California, the privilege ends once the estate of the deceased client is distributed and the executor of the estate is discharged.
In California, the AC privilege ends…
In California, the privilege ends once the estate of the deceased client is distributed and the executor of the estate is discharged.
AC Privilege: Corporate Clients
FED: Under federal law, the privilege applies to communications from a corporation’s employees/agents if they were authorized by the corporation to make the communication to the lawyer on behalf of the corporation.
CA: In California, the privilege applies to communications from an employee/agent if: (1) the employee/agent is the natural person to speak to the lawyer on behalf of the corporation in the matter (for example, the corporation’s in-house counsel or CEO), or (2) the employee/agent did something for which the corporation may be held liable and the corporation instructed her to tell its lawyer what happened.
As applied, there is no significant difference between the federal and California standards.
Note that there is no privilege for a mere witness who happens to be an employee.
AC Privilege for Corporate Clients - difference btwn Fed and CA
As applied, there is no significant difference between the federal and California standards. Privilege applies to communications from a corporation’s employees/agents if they were authorized by the corporation to make the communication to the lawyer on behalf of the corporation.
AC Privilege: Corporate Clients - there is no privilege for a ___
there is no privilege for a mere witness who happens to be an employee.
Is there privilege for a mere witness who happens to be an employee?
there is no privilege for a mere witness who happens to be an employee. Cant privilege by having him write it down and hand it to a lawyer.
AC Privilege: Exceptions
BOTH: Under federal and California law, the privilege does not apply where:
(1) multiple parties consult an attorney on a matter of common interest and the communication is offered by one of these parties against another in subsequent litigation;
(2) the attorney’s services were sought to further a crime or fraud;
(3) the communication relates to alleged breach of duty between attorney and client;
(4) the client puts the legal services at issue in the case; or
(5) the communication is relevant to an issue between parties claiming through the same deceased client.
CA: Additionally, in California, the privilege does not apply where the lawyer reasonably believes that disclosure of the communication is necessary to prevent a crime that is likely to result in death or substantial bodily harm.
AC Privilege: Additional Exception for California
In California, the privilege does not apply where the lawyer reasonably believes that disclosure of the communication is necessary to prevent a crime that is likely to result in death or substantial bodily harm.
In California, the privilege does not apply where….
In California, the privilege does not apply where the lawyer reasonably believes that disclosure of the communication is necessary to prevent a crime that is likely to result in death or substantial bodily harm.
PHYSICIAN-PATIENT AND PSYCHOTHERAPIST- PATIENT PRIVILEGES (FEDERAL)
Federal courts recognize a psychotherapist/social worker-patient privilege but not a general physician-patient privilege.
(Remember, however, that MBE questions occasionally assume the existence of a physician-patient privilege under the majority state rule.)
but EXCEPTIONS
PHYSICIAN-PATIENT AND PSYCHOTHERAPIST- PATIENT PRIVILEGES (CALIFORNIA)
In California, both privileges exist.
The California physician-patient privilege applies to a communication with a licensed physician, or someone the patient reasonably thinks is a licensed physician, for the purpose of diagnosis or treatment. It also applies to communications with the physician’s staff member (such as a nurse) while that staff member is serving as the physician’s agent to gather information to pass on to the physician.
The California psychotherapist-patient privilege covers a wide range of mental health workers (including social workers, counselors, school psychologists, and mental health nurses, assistants, and interns).
but EXCEPTIONS
Exceptions to PHYSICIAN-PATIENT AND PSYCHOTHERAPIST- PATIENT PRIVILEGES
BOTH: These Exceptions apply under federal law with respect to the psychotherapist-patient privilege, and in CA with respect to both privileges:
(1) the patient puts their condition in issue (as in a personal injury lawsuit);
(2) the professional services were sought to aid in a crime or fraud, or to escape capture after a crime or tort;
(3) the case alleges a breach of duty between a patient and the psycho-therapist/physician (as in a malpractice lawsuit); and
(4) the communication is relevant to an issue between parties claiming through the same deceased patient.
CA ONLY:
• The psychotherapist-patient privilege does not apply if: (1) the psychotherapist has reasonable cause to believe that the patient is a danger to themselves or others, and that disclosure is neces- sary to end the danger; (2) the patient is a child under the age of 16 and the psychotherapist reasonably believes that the child has been the victim of a crime and disclosure is in the best interest of the child; or (3) the psychotherapist has been appointed by the court.
• The physician-patient privilege is not applicable in criminal cases.
• Neither privilege is applicable: (1) to information that the psycho- therapist/physician is required to report to a public office (for example, gunshot wounds and some communicable diseases); or (2) in competency proceedings.
CALIFORNIA ONLY exceptions to Physician-patient and psychotherapist-patient privilges (3)
In California, the following exceptions apply:
• The psychotherapist-patient privilege does not apply if: (1) the psychotherapist has reasonable cause to believe that the patient is a danger to themselves or others, and that disclosure is neces- sary to end the danger; (2) the patient is a child under the age of 16 and the psychotherapist reasonably believes that the child has been the victim of a crime and disclosure is in the best interest of the child; or (3) the psychotherapist has been appointed by the court.
• The physician-patient privilege is not applicable in criminal cases.
• Neither privilege is applicable: (1) to information that the psycho- therapist/physician is required to report to a public office (for example, gunshot wounds and some communicable diseases); or (2) in competency proceedings.
In CA, Exceptrion to psychotherapist-patient privilege:
psychotherapist-patient privilege does not apply if:
- Patient is dangerous,
- Patient is Child crime victim
- Psychotherapist is court-appointed
Dangerous patient exception
P doesnt apply if (1) the psychotherapist has reasonable cause to believe that the patient is a danger to themselves or others, and that disclosure is necessary to end the danger;
In CA, • The psychotherapist-patient privilege does not apply if:
In CA, • The psychotherapist-patient privilege does not apply if:
(1) the psychotherapist has reasonable cause to believe that the patient is a danger to themselves or others, and that disclosure is neces- sary to end the danger;
(2) the patient is a child under the age of 16 and the psychotherapist reasonably believes that the child has been the victim of a crime and disclosure is in the best interest of the child; or
(3) the psychotherapist has been appointed by the court.
In CA, • The physician-patient privilege is not applicable….
in criminal cases
In CA, • Neither privilege is applicable:
• Neither privilege is applicable:
(1) to information that the psycho- therapist/physician is required to report to a public office (for example, gunshot wounds and some communicable diseases); or
(2) in competency proceedings.
In CA, Both privilges have exception if…
Reporting required by law
Spousal Testimonial Privilege
The testimonial privilege permits a witness-spouse to refuse to testify against their spouse.
FED: The federal privilege applies to criminal cases only.
CA: The California privilege applies in civil and criminal cases and extends to registered domestic partners. Under California law, the spouse/partner of the party may not be compelled to even take the witness stand.
FED, the Spousal Testimonial Privilege applies in…
The federal privilege applies to criminal cases only.
CA, the Spousal Testimonial Privilege applies in…
The California privilege applies in civil and criminal cases and extends to registered domestic partners.
Confidential Marital Communications Privilege
Communications made DURING the marriage.
Under federal and California law, the confidential marital communications privilege applies in all civil and criminal cases, can be invoked by either spouse, and protects confidential communications that were made during marriage.
The California privilege extends to registered domestic partners.
OTHER CALIFORNIA PRIVILEGES
California also recognizes the following privileges:
• Privileges for confidential communications between a sexual assault, domestic violence, or human trafficking counselor and a victim of such crimes
• A privilege for penitential communications between penitent and a clergy member who routinely receives such communications and whose religion requires them to be kept secret (both the pen- itent and the clergy member hold the privilege)
• A privilege for official government information or the identity of an informer (absent a statute forbidding disclosure, such information is privileged only if the trial judge concludes that the public inter- est in keeping it confidential outweighs the need for disclosure)
• A privilege for trade secrets
• A privilege for a voter’s secret ballot
• Immunity from contempt of court for a news reporter who refuses to disclose their sources
As under federal law, California does not recognize an accountant-client privilege.
accountant-client privilege.
As under federal law, California does not recognize an accountant-client privilege.
PRELIMINARY QUESTIONS
A judge determines preliminary questions affecting the competency of evidence (meaning, whether it is admissible under the rules of evidence). For example, the judge decides whether a witness is qualified to testify, whether a privilege applies, and whether a hearsay statement falls within a hearsay exception.
FEDL Under the Federal Rules, when making these preliminary determina- tions, the judge is not bound by the rules of evidence, except privilege.
CAL In California, the judge generally is bound by the rules of evidence. For example, a judge cannot use inadmissible hearsay evidence when making the preliminary determination.
In California, the judge generally is…. when making determinations
In California, the judge generally is bound by the rules of evidence. For example, a judge cannot use inadmissible hearsay evidence when making the preliminary determination.
JUDICIAL NOTICE OF FACTS
Under federal and California law, a fact is appropriate for judicial notice if: (1) it is generally known within the court’s jurisdiction; or (2) it can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
Court discretion to take JUDICIAL NOTICE OF FACTS
As a general rule, judicial notice of a fact is mandatory only if a party requests it. If not requested, the court has discretion to take judicial notice on their own accord.
California recognizes an exception to this rule. Even if not requested, the court must take judicial notice of matters of generalized knowl- edge that are universally known.
In CA, even if not requested, the court must take judicial notice of…
Even if not requested, the court must take judicial notice of matters of generalized knowledge that are universally known.
Judicial Notice of Facts: Conclusiveness
FED: Under the Federal Rules, judicially noticed facts are conclusive in civil cases but not in criminal cases. This means that if the court takes judicial notice in a civil case, the court instructs the jury that it must accept the judicially noticed fact as conclusive. In a criminal case, the court instructs the jury that it may accept the judicially noticed fact as conclusive, but is not required to do so.
CA: In California, a judicially noticed fact is conclusive in both criminal and civil cases. This means that in both criminal and civil cases, the court instructs the jury that it must accept the judicially noticed fact as conclusive.
Judicial Notice of Facts: In FED, a judicially noticed fact is conclusive in…
Under the Federal Rules, judicially noticed facts are conclusive in civil cases but not in criminal cases. This means that if the court takes judicial notice in a civil case, the court instructs the jury that it must accept the judicially noticed fact as conclusive. In a criminal case, the court instructs the jury that it may accept the judicially noticed fact as conclusive, but is not required to do so.
Judicial Notice of Facts: In California, a judicially noticed fact is conclusive in…
In California, a judicially noticed fact is conclusive in both criminal and civil cases. This means that in both criminal and civil cases, the court instructs the jury that it must accept the judicially noticed fact as conclusive.
