Evidence [Highly Tested Rules] Flashcards
1
Q
What is the public policy exclusion for liability insurance?
A
Evidence of a party’s liability insurance (or lack thereof) is NOT admissible to prove the party acted negligently or otherwise wrongfully
ADMISSIBLE:
1. to prove ownership or control (if disputed);
2. to impeach a witness (usually to show bias); or
3. as part of an admission of liability (where the reference to insurance coverage cannot be severed without lessening its probative value as an admission of liability)
2
Q
What is the public policy exclusion for subsequent remedial measures?
A
Evidence of safety measures or repairs after an accident is NOT admissible:
1. to prove negligence or culpable conduct; or
2. FRE: to prove a product defect in a products liability case based on a theory of strict liability
ADMISSIBLE:
1. to prove ownership or control (if disputed);
2. to rebut a claim that the precaution was not feasible;
3. to prove the opposing party destroyed evidence; or
4. CA: to prove a product defect in a products liability case based on a theory of strict liability
3
Q
What is the public policy exclusion for civil settlements and settlement negotiations?
A
Evidence of a settlement or offer to settle a civil claim in dispute as to either liability or amount, and statements made during settlement negotiations, is NOT admissible:
1. to prove or disprove the validity or amount of a disputed claim; or
2. to impeach a witness by prior inconsistent statement or contradiction (but ADMISSIBLE for impeachment on ground of bias)
NOTE: This exclusion is not triggered unless a claim is made or threatened, and the claim must be in dispute as to either liability or amount
4
Q
What is the public policy exclusion for payments of or offers to pay medical expenses?
A
Evidence of payments of or offers to pay medical or similar expenses is NOT admissible to prove liability for the injuries in question
* FRE: Accompanying admissions of fact are ADMISSIBLE
* CEC: Accompanying admissions of fact are NOT admissible
5
Q
What is the public policy exclusion for plea discussions?
A
Evidence of the following is generally NOT admissible in a civil or criminal case against the defendant who made the plea or participated in the discussions:
1. offers to plead guilty;
2. withdrawn guilty pleas;
3. actual pleas of nolo contendere (“no contest”); and
4. statements of fact made during any of the foregoing plea discussions
CA: It is unclear whether Prop 8 makes these discussions admissible in a California criminal case, but the court may still exclude the evidence under CEC 352
6
Q
What is the CEC-only public policy exclusion for communications and documents prepared in connection with mediation proceedings in civil cases?
A
Under the CEC, statements made in connection with mediation proceedings are subject to strict confidentiality rules and, subject to limited exceptions (e.g., when all parties consent to disclosure), statements made and writings prepared in connection with a mediation or mediation consultation are NOT admissible in civil cases
NOTE: This exclusion covers communications and documents made outside mediation as long as they were made for the purpose of the mediation
7
Q
What is the CEC-only public policy exclusion for expressions of sympathy in civil cases?
A
Under the CEC, expressions of sympathy relating to the pain, suffering or death of an accident victim are NOT admissible in civil cases
* BUT: Accompanying statements of fault are ADMISSIBLE
8
Q
What is character evidence?
A
Character evidence describes a person’s general disposition or propensity for a particular trait and conveys a moral judgment
9
Q
What is the general rule regarding the admissibility of character evidence in a civil case?
A
In a civil case, character evidence is generally NOT admissible to prove that on a particular occasion, the person acted in conformity with a particular character trait
* But evidence of a person’s character is admissible when their character is directly at issue (i.e., an essential element of a claim or defense)
10
Q
What is the FRE-only exception to the general rule that propensity character evidence is not admissible in a civil case?
A
FRE: In a civil case in federal court involving alleged acts of sexual assault or child molestation, evidence of the defendant’s other acts of sexual assault or child molestation are ADMISSIBLE for any purpose, including the defendant’s propensity to commit such acts
CEC: In California, there is NO exception for civil cases involving alleged sex offenses
11
Q
What is the general rule regarding the admissibility of character evidence of a defendant in a criminal case?
A
In a criminal case, only the defendant can “open the door” to character evidence, which he can do by offering reputation and/or opinion testimony of his own good character for a pertinent trait
12
Q
When can the prosecution rebut the defendant’s character evidence in a criminal case?
A
After a defendant in a criminal case “opens the door” to character evidence by offering evidence of his good character for a particular trait, the prosecution can rebut the defendant’s character evidence by:
1. calling its own character witnesses to provide reputation and/or opinion testimony of the defendant’s bad character for the trait in question; AND/OR
2. cross-examining the defendant’s character witness about specific acts of the defendant that show the defendant’s bad character for the trait in question; however, this questioning is admissible only to impeach the defendant’s character witness by showing their lack of knowledge
13
Q
When can a defendant in a criminal case introduce evidence of the victim’s character?
A
FRE: Except in sexual assault cases, the defendant may introduce reputation and/or opinion evidence of a bad character trait of the alleged crime victim when it is relevant to show the defendant’s innocence (i.e., the defendant claims he acted in self-defense)
CEC: In California, the defendant can offer evidence of specific instances of the victim’s conduct
14
Q
When can the prosecution rebut evidence of the victim’s bad character in a criminal case?
A
FRE: Once the defendant has introduced evidence of a victim’s bad character for a pertinent trait (usually violence), the prosecution may rebut the defendant’s character evidence by:
1. calling its own character withnesses to provide reputation and/or opinion testimony of (a) the victim’s good character for the same trait or (b) the defendant’s bad character for the same trait; AND/OR
2. cross-examining the defendant’s character witness about specific instances of the victim’s conduct
CEC: In California, the prosecution can offer evidence of specific instances of the victim’s conduct on BOTH direct and cross-examination
* If the defendant has introduced evidence of the victim’s character for violence, the prosecution may only rebut by offering evidence that the defendant has a violent character
15
Q
When can the prosecution initiate evidence of a victim’s good character in a criminal case?
A
FRE: In a homicide case in which the defendant pleads self-defense, evidence of any kind that the victim was the first aggressor opens the door to evidence that the victim had a good character for peacefulness
* The prosecution may only offer reputation and/or opinion evidence of the victim’s good character for peacefulness
CEC: California does NOT have an equivalent rule
16
Q
When can the prosecution be the first to introduce evidence of a defendant’s bad character for propensity purposes in a criminal case?
A
FRE: In a criminal prosecution for sexual assault or child molestation, the prosecution may offer evidence that the defendant committed other acts of sexual assault or child molestation to prove the defendant’s propensity to commit such acts
CEC: California extends this exception to prosecutions for a crime of domestic violence or elder abuse
17
Q
When is evidence of a person’s other crimes, wrongs or acts admissible?
A
Evidence of a person’s other crimes, wrongs or acts is ADMISSIBLE if relevant to an issue other than their character or propensity to commit the crime or alleged act
18
Q
What are common “non-propensity” purposes for offering evidence of a person’s other misconduct?
A
Motive
Intent (to show guilty knowledge or lack of good faith)
Absence of Mistake
Identity
Common plan or scheme (e.g., committing one crime in preparation of another)
“MIMIC”
19
Q
What are leading questions?
A
Leading questions are questions that suggest the desired answer, and they are generally allowed only on cross-examination
EXCEPTIONS:
A court will ordinarily allow leading questions on direct examination:
1. to elicit preliminary or introductory matter
2. when the witness needs help responding because of loss of memory, immaturity, or physical or mental weakness
3. when the witness is hostile, an adverse party, or a witness affiliated with an adverse party
20
Q
What are misleading questions?
A
A misleading question is one that cannot be answered without making an unintended admission
Ex: “Do you still beat your wife?”
21
Q
What are argumentative questions?
A
An argumentative question is a leading question that reflects the examiner’s interpretation of the facts or is unnecessarily combative
Ex: “Why were you driving so recklessly?”
22
Q
What are compound questions?
A
A compound question requires a single answer to multiple questions
Ex: “Did you see and hear the intruder?”
23
Q
What is a non-responsive answer?
A
A non-responsive answer is a response that does not answer the question asked or goes beyond the question asked
Ex: “Q: Did you leave your house on September 22? A: I went to the dentist and then to the grocery store”
NOTE: A non-responsive answer may be stricken
24
Q
What is a question that calls for a narrative answer?
A
A question that calls for a narrative answer allows a witness to answer by recounting facts, rather than a specific answer to a specific question
Ex: “Tell me what you did on the evening of September 22”
25
What is a question that calls for speculation?
A question that calls for speculation asks the witness to speculate or theorize as to a fact, rather than answer based on the witness's personal knowledge
Ex: "What do you think your sister was thinking when she left the house that day?"
26
What is a question that assumes facts not in evidence?
A question assumes facts not in evidence when it assumes a disputed fact is true when it has not been established in the case
Ex: "When did you make your will?" (when there is no evidence that the witness made a will)
27
What is an answer that lacks foundation?
An answer lacks foundation when the witness does not have sufficient personal knowledge as to the facts testified
**NOTE:** An answer that lacks foundation may be **stricken**
28
When may a witness refresh their recollection?
A witness may use **any writing or object** for the purpose of **refreshing their present recollection**, but they **may NOT read from the writing** while testifying because it has **not been authenticated** and is not in evidence
**FRE:** If the witness refreshed their memory **while on the stand**, an adverse party is entitled to (1) have the ***writing produced*** at trial, (2) ***cross-examine*** the witness about the writing and (3) ***use and introduce relevant portions*** of the writing into evidence
* If the witness refreshed their memory **before** taking the stand, it is within the **court's discretion** **to require the writing be produced**
**CEC:** In **California**, it is **immaterial** whether the refreshing was done **before or during** trial; if the opponent **requests** the writing, it **must be produced**
29
When may a witness read a writing into evidence?
If a witness has **insufficient recollection** of an event to be able to testify full and accurately, even after referring to a writing that has been given to her on the stand, the **writing itself may be read into evidence** once a proper foundation is laid for its admissibility
* Although the writing is **hearsay** because it is being offered into evidence to prove the truth of its contents, it is **ADMISSIBLE** under the **"recorded recollection"** exception to the hearsay rule
30
What is the proper foundation for a "recorded recollection"?
The **foundation** for admissibility of the contents of a writing under the "recorded recollection" exception to the hearsay rule requires that (i) the **witness at one time had personal knowledge of the facts** stated in writing, (ii) the **writing was made or adopted by the witness**, (iii) the writing was **made while the matter was fresh in the witness's mind**, (iv) the **writing is accurate**, and (v) the **witness has insufficient recollection to testify fully and accurately**
* Although the record may be read into evidence, it ***CANNOT be admitted into evidence as an exhibit unless offered by an adverse party***
31
When is opinion testimony by lay witnesses admissible?
Opinion testimony by a lay witness is **ADMISSIBLE** when it is:
1. rationally ***based on the witness's perception***;
2. ***helpful to a clear understanding*** of the witness's testimony, or helpful to the ***determination of a fact in issue***; AND
3. **FRE:** ***NOT*** based on ***scientific, technical or other specialized knowledge***
32
What are examples of admissible opinions of a lay witness?
An opinion of a lay witness is generally admissible with respect to:
1. the general ***appearance or condition*** of a person
2. the ***state of emotion*** of a person
3. matters involving ***sense recognition***
4. ***voice*** or ***handwriting identification***
5. the ***speed*** of a ***moving object***
6. the ***value*** of the ***witness's own services or property***
7. the ***rational or irrational nature*** of another's conduct
8. a person's ***intoxication***
33
When is opinion testimony of an expert witness admissible?
A witness may provide expert testimony in the form of an opinion if:
1. the ***subject matter*** is one where ***scientific, technical or other specialized knowledge would be helpful*** to the trier of fact;
2. the witness has ***special knowledge, skill, experience, training or education sufficient to qualify him as an expert*** on the subject matter;
3. the opinion is based on ***sufficient facts or data***;
4. the opinion is the product of ***reliable principles and methods***;
5. the expert has ***reliably applied*** the principles and methods to the facts of the case; AND
6. the expert possesses ***reasonable certainty or probability*** of his opinion
34
How is the reliability of expert opinion testimony determined under the FRE?
When **federal courts** determine the **reliability** of the **theory or methodology** underlying an expert opinion, they consider the following factors under the ***Daubert-Kumho*** test:
1. whether the expert's theory or methodology has been ***tested***;
2. whether it has been subject to ***peer review and publication***;
3. its ***known or potential error rate***;
4. the ***existence*** and ***maintenance*** of ***standards controlling its operation***; AND
5. whether it is ***generally accepted in the relevant field***
35
How is the reliability of scientific expert opinion testimony determined under the CEC?
When **California courts** determine the reliability of **scientific** expert opinions, under the ***Kelly-Frye*** test, only **one factor** is considered: whether the opinion is based on ***scientific principles that are generally accepted in the relevant scientific field***
**NOTE:** This standard **does NOT apply** to ***non-scientific*** opinions, the reliability of which is determined based on the **facts and circumstances** of the case
36
What are the rules regarding bolstering or accrediting the testimony of a party's own witness?
**FRE:** Generally, a party is **NOT permitted to bolster or accredit** the testimony of their witness **until** the witness has been **impeached**
**CEC:** The CEC rule is the same in civil cases; in **criminal** cases, **Prop 8** allows the **prosecution and defendant** to **bolster** a witness's credibility ***before*** it has been impeached
37
What are the available methods of impeachment?
1. Prior Inconsistent Statement
2. Bias
3. Sensory Deficiencies
4. Contradiction
5. Reputation or Opinion Testimony of Untruthfulness
6. Prior Conviction
7. Bad Acts
38
How can a witness be impeached with their prior inconsistent statement?
A party may show, by **cross-examination** or **extrinsic evidence**, that a witness has made a **prior statement inconsistent with their present testimony**
* To prove the prior inconsistent statement by ***extrinsic evidence***, a **proper foundation must be laid** and the statement must be **relevant** to some issue in the case
39
What foundation must be laid to prove a prior inconsistent statement by extrinsic evidence?
Extrinsic evidence can be introduced to prove a prior inconsistent statement only if:
1. its **content is NOT collateral** (i.e., it is probative of a fact of consequence in the case or says something about the witness's credibility);
2. at some point, the **witness is given an opportunity to explain or deny** the statement; AND
3. at some point, the **adverse party is given an opportunity to examine the witness** about the statement
40
When does the foundation requirement for using extrinsic evidence to prove a prior inconsistent statement NOT apply?
The foundation requirement for using extrinsic evidence to prove a prior inconsistent statement **does NOT apply**:
1. if the prior inconsistent statement is an **opposing party's statement**;
2. if the prior inconsistent statement was **made by a hearsay declarant and used to impeach the hearsay declarant**; or
3. if the **court finds justice requires dispensing with the foundation requirement** (e.g., the witness has left the stand and is unavailable when their prior inconsistent statement is discovered)
41
When does a prior statement that omits a fact asserted during the witness's testimony constitute a prior inconsistent statement?
A witness's prior statement that omits a fact asserted during his current testimony may constitute a prior inconsistent statement **if it would have been natural for the witness to include the omitted fact in their current testimony if they believed it to be true**
42
What is impeachment by bias?
Evidence that a witness is **biased** or has an **interest in the outcome** of a case tends to show that the **witness has a motive to lie**
* Impeachment with bias may be done by **cross-examination** or **extrinsic evidence**
**Foundation for Extrinsic Evidence**
Because impeachment with bias is not specifically addressed by the FRE, much is left to the court's discretion
* The **MAJORITY** rule is that **before** a witness can be impeached by **extrinsic evidence** of bias, they **must FIRST be asked about the facts that show bias on cross-examination**
43
When can a witness be impeached by showing they suffered sensory deficiencies?
A witness may be impeached by showing, either on **cross-examination** or by **extrinsic evidence**, that their **faculties of perception and recollection were so impaired** as to make it **doubtful** that they **could have perceived the facts** about which they testified
* There is **NO foundation requirement** for proving the witness's sensory deficiency with **extrinsic evidence**
44
How can a witness be impeached by contradiction?
On **cross-examination**, a lawyer may attempt to make a witness **admit** that he **lied** or was **mistaken** about some fact they testified to during direct examination
* If the witness **does NOT admit** the contradiction, **extrinsic evidence may be used** to prove the contradictory fact **UNLESS** the **contradictory fact is collateral** (i.e., it has no significant relevance to the case or to the witness's credibility)
45
How can a witness be impeached by reputation or opinion evidence of his bad character for truthfulness?
A witness can be impeached by calling a character witness to provide **reputation or opinion** testimony of the witness's **bad character for truthfulness** to suggest that the witness was not telling the truth on the stand
46
When can a witness be impeached with evidence of his prior felony conviction under the FRE?
Under the **FRE**, a witness may be impeached evidence of his **prior felony conviction**
* Felonies involving **"crimen falsi"** crimes (i.e., crimes involving a false utterance) are admissible, and the **court has no discretion to exclude** them **UNLESS** they are **more than 10 years old**
* **Other felonies** are admissible subject to the **court's discretion**; however, if a **criminal defendant** is being impeached, evidence of other felonies is **admissible ONLY if the prosecution shows its probative value OUTWEIGHS its prejudicial effect**
47
When can a witness be impeached with evidence of his prior felony conviction under the CEC?
In **California**, a witness may be impeached with evidence of his prior conviction of a **felony involving "moral turpitude"** (e.g., lying, violence, theft, extreme recklessness, sexual misconduct)
* In a **civil** case, the witness can ***only be impeached with the fact they have been convicted***
* In a **criminal** case, evidence of the ***circumstances underlying the conviction is admissible if it has any tendency to disprove the witness's credibility***
48
When can a witness be impeached with evidence of his prior misdemeanor conviction?
**FRE:** Under the **FRE**, a witness may be impeached with evidence of his prior conviction of a **misdemeanor** for a **crimen falsi** crime, and the **court has no discretion to exclude** the evidence **UNLESS** the conviction is **more than 10 years old**
**CEC:** In **California**, prior misdemeanor convictions are **ONLY admissible** for impeachment purposes (1) in a **criminal** case (Prop 8 makes the evidence admissible) and (2) when the misdemeanor was a **crime of moral turpitude**
* Evidence of the misdemeanor conviction is **subject to the court's discretion under CEC 352**
49
When is evidence of an older conviction admissible?
**FRE:** If **more than 10 years** have passed since the witness's conviction or release from confinement, whichever is later, evidence of the conviction is **NOT admissible UNLESS** (1) its ***probative value substantially outweighs its prejudicial effect*** (reverse-403 balancing) and (2) its ***proponent gives the adverse party reasonable written notice of the intent to offer*** the evidence
**CEC:** California **does NOT have a specific rule for older convictions**, but the court **may consider the age of the conviction as a factor diminishing its probative value** when applying the **CEC 352 balancing** test
50
When can a witness be impeached with evidence of his prior bad acts?
**FRE:** Under the **FRE**, subject to the court's discretion, a witness may be interrogated on **cross-examination** about specific instances of their conduct if they are **probative of their character for dishonesty**, but (1) the ***cross-examiner must have a good faith basis to believe the witness committed the acts*** in question, (2) ***extrinsic evidence is not permitted***, and (3) the ***cross-examiner cannot refer to any consequences*** the witness may have suffered (e.g., arrest, termination of employment, etc.)
**CEC:** The CEC does **not** permit impeachment with bad acts that did not lead to a conviction, but, in a **criminal** case, **Prop 8 allows specific instances of moral turpitude** to be **admissible** for impeachment, and **extrinsic evidence CAN be used**
51
How may an impeached witness be rehabilitated generally?
A witness who has been impeached may be **rehabilitated** by (1) **explaining or clarifying** the impeaching facts on **redirect** examination, (2) **calling other witnesses** to give **reputation or opinion** testimony about the impeached witness's **good character for truthfulness** (only if the witness's character for truthfulness was attacked, (3) introducing the witness's **prior consistent statement** if offered to rebut an attack on the witness's credibility based on an **improper motive**, and the prior consistent statement was made **before** the alleged improper motive arose, or (4) introducing the witness's **prior consistent statement** if offered to rehabilitate the witness impeached:
* **FRE:** on some **different ground** (other than general untruthfulness) if the prior consistent statement ***tends to rehabilitate the witness*** under the circumstances
* **CEC:** with a **prior inconsistent statement**, and the prior consistent statement was made ***before*** the prior inconsistent statement
52
What are common examples of non-hearsay?
The following statements are **not hearsay (nonhearsay)** because they are not being offered for the truth of the matter asserted:
1. ***Verbal acts*** or ***legally operative facts*** (e.g., words of contract or defamatory words)
2. Statements offered to show their ***effect on the listener or reader*** (e.g., to prove notice in a negligence case)
3. Statements offered as ***circumstantial evidence of the declarant's state of mind*** (e.g., when a party is trying to prove someone's insanity or knowledge)
53
What is double hearsay?
**Hearsay that incorporates one or more other hearsay statements** within it ("hearsay within hearsay" or "double hearsay") is admissible **ONLY IF** ***both*** the **outer** hearsay statement and the **inner** hearsay statement fall within a **hearsay exception or exclusion**
54
What are the hearsay "exclusions"?
**Statements by or Attributable to Opposing Party (Admissions by Party-Opponent)**
1. ***Party*** Statements (Admissions)
2. ***Adoptive*** Statements (Admissions)
3. ***Vicarious*** Statements (Admissions)
4. ***Co-conspirator*** Statements (Admissions)
**Statements by Testifying Declarant-Witness**
1. Prior ***Identification***
2. Prior ***Inconsistent Statement***
3. Prior ***Consistent Statement***
55
What is the "prior identification" hearsay exclusion/exception?
**FRE:** A prior statement by a ***testifying declarant-witness who is subject to cross-examination*** is not hearsay if the prior statement is one of ***identification of a person as someone the witness perceived earlier***
**CEC:** The California exception imposes the following **additional requirements**:
1. the identification must have been of a ***person who participated in a crime or other occurrence***;
2. the witness must have made the identification ***while their memory was fresh***; and
3. the witness must ***confirm in court*** that they ***made the identification*** and that it ***truly reflected their opinion at the time***
56
What is "prior inconsistent statement" hearsay exclusion/exception?
**FRE:** A prior statement by a ***testifying declarant-witness who is subject to cross-examination*** is not hearsay if:
1. the prior statement is ***inconsistent*** with the declarant-witness's in-court testimony; and
2. was ***given under oath*** at a prior trial, hearing or deposition
**CA:** The California exception ***does NOT require*** the prior inconsistent statement to be given ***under oath***
57
What is "prior consistent statement" hearsay exclusion/exception?
**FRE:** A prior statement by a ***testifying declarant-witness who is subject to cross-examination*** is not hearsay if the prior statement is ***consistent*** with the declarant-witness's in-court testimony and is offered:
1. to ***rebut a charge*** that the witness is ***lying or exaggerating*** because of some ***improper motive***, and the prior consistent statement was ***made before any motive to lie or exaggerate arose***; or
2. to ***rehabilitate*** a witness ***impeached on some other ground*** (other than a general attack on the witness's character for truthfulness), and the prior consistent statement ***tends to rehabilitate the witness*** under the circumstances
**CA:** The California exception allows a testifying witness's prior consistent statement to be admitted, ***only if offered to rebut*** an attack on the witness's credibility based on ***improper motive*** or ***prior inconsistent statement***, and the ***prior consistent statement was made BEFORE*** any ***motive to lie arose*** or the ***prior inconsistent statement was made***
58
When are a party's statements/admissions NOT hearsay?
Statements made by an **opposing party** and ***offered against them*** are not hearsay
* **Formal** judicial statements by a party-opponent are ***conclusive*** and ***cannot be contradicted*** during trial
* **Informal** judicial statements and **extrajudicial** statements by a party-opponent are ***not conclusive*** and ***can be explained***
**NOTE:** Statements (admissions) of a party-opponent **do NOT need to have been against their interest** when made
59
When are a party's adopted statements/admissions NOT hearsay?
A statement made by a **third party** and ***offered against a party-opponent*** is not hearsay if the ***party-opponent manifested*** (by ***words or conduct***) that they:
1. ***adopted*** such third party's statement as their own; or
2. ***believed*** such third party's statement ***to be true***
**Silent Adoptive Admissions:**
A party-opponent can **adopt** another's statement by ***silence*** if:
1. the party-opponent ***heard and understood*** the statement;
2. the party-opponent was ***physically and mentally capable of denying*** the statement; and
3. a ***reasonable person would have affirmatively denied*** the statement if they believed it was not true
60
When are a party's vicarious statements/admissions NOT hearsay?
The following statements are ***admissible against a party-opponent*** as **vicarious** party statements (admissions):
1. a statement made by a ***person authorized to speak on the party-opponent's behalf*** (e.g., authorized spokesperson); and
2. a statement made by the ***party-opponent's agent or employee*** if the statement:
(i) concerned a ***matter within the scope of their agency or employment***; and
(ii) was ***made during*** the existence of the ***agency or employment relationship***
* **CEC:** **The CEC has no related provision**; however, a statement of an **employee** is ***admissible against the employer*** if the employee's negligent conduct is the basis for the employer's liability in a ***respondeat superior*** civil case
61
When are a co-conspirator's vicarious statements/admissions NOT hearsay?
Statements of one **co-conspirator**, made to a third party **in furtherance of a conspiracy** to commit a crime or civil wrong **at a time when the declarant was participating in the conspiracy**, are admissible against his co-conspirators
**NOTE:** The **court** must first determine the ***existence of a conspiracy*** and the **participation** of the **declarant** and **party against whom the statement is offered** by a ***preponderance of the evidence*** standard
62
What hearsay exceptions require the declarant to be unavailable under the FRE and CEC?
1. Former Testimony
2. Statements Against Interest
3. Dying Declarations
4. Statements of Personal or Family History
5. Statements Offered Against Person Procuring Declarant's Unavailability
63
What additional CEC-only hearsay exceptions require the declarant to be unavailable?
1. Statements of Kidnapped or Murdered Declarant in "Serious Felony" Criminal Case
2. Statements of Declarant's Past Physical Condition or State of Mind When at Issue
3. Statements Describing the Infliction or Threat of Physical Injury
64
When is a hearsay declarant deemed to be "unavailable"?
A hearsay declarant is deemed **"unavailable"** as a witness if he:
1. is ***dead*** or ***unable to testify due to*** a then-existing ***physical or mental illness***
**CA:** inability to testify due to ***trauma or fear*** can constitute a ***mental infirmity*** rendering the declarant unavailable
2. is ***exempt*** from testifying on the ground of ***privilege***
3. **FRE:** ***refuses*** to testify ***despite a court order*** to do so
**CA:** ***persistently refuses*** to testify ***despite having been found in contempt***
4. testifies that he ***does not remember*** the subject matter
**CA:** must suffer ***total memory loss***
5. is ***absent*** and ***beyond the reach of the court's supoena power***, and his attendance or testimony ***cannot be procured by reasonable means***
65
What is the "former testimony" hearsay exception?
Testimony **given under oath** at a trial, hearing or deposition by an **unavailable declarant** is admissible if the **party against whom the former testimony is being offered** had an ***opportunity and similar motive*** to develop the declarant's testimony at the prior proceeding
**CIVIL CASES ONLY**
* **FRE:** If the **party against whom the former testimony is being offered was NOT a party in the prior action**, the former testimony is **still admissible** if that party's **predecessor in interest was a party** to such action
* **CA:** The former testimony is admissible if a party in the prior action had a **similar interest** to that of the party against whom the testimony is now being offered--**neither the current party nor their predecessor in interest need to have been a party to the prior proceeding**
66
What are the additional CEC-only "former testimony" hearsay exceptions?
In a **civil case** in **California** state court, **former testimony given under oath** by an **unavailable declarant** is admissible if offered against a **person who offered it in evidence on their own behalf at the prior proceeding** OR such person's **successor in interest**
* No "similar interest/motive" requirement
Under the **California Rules of Civil Procedure**, **deposition testimony** given in the **same *civil* case** is admissible for **ALL PURPOSES** at trial if the deponent:
1. is ***unavailable*** at trial; OR
2. lives ***more than 150 miles from the court*** house
67
What is the "statement against interest" hearsay exception?
A statement by an **unavailable** declarant is admissible if:
1. the ***statement was against*** the **declarant's** ***pecuniary***, ***proprietary*** or ***penal interest when made*** [**CA:** also includes ***"social"*** interest], such that a reasonable person in the declarant's position would have made it only if they believed it to be true;
2. the **declarant** had ***personal knowledge of the facts***; and
3. the **declarant** was ***aware that the statement was against their interest when made***
**FRE:** Under the FRE, if the statement is offered in a **criminal** case and ***would have subjected the declarant to criminal liability***, the ***proponent must offer corroborating circumstances*** showing that the declarant's statement is ***trustworthy***
68
What is the "dying declaration" hearsay exception?
A statement made by an **unavailable declarant** is admissible if:
1. the statement was ***made while the declarant believed their death was imminent***
2. the statement ***concerned the cause or circumstances*** of what the declarant believed to be their imminent death
3. **CA:** the ***declarant died as a result***
**FRE:** Under the FRE, this exception **applies ONLY** in **civil** cases and **homicide** cases
69
What is the hearsay exception for "statements offered against a party procuring the declarant's unavailability"?
**FRE:** Statements made by an **unavailable declarant** are admissible when **offered against a party who engaged or acquiesced in wrongdoing that procured the declarant's unavailability** as a witness, if the party **intended to cause that result**
**CEC:** The CEC hearsay exception specifically provides that the **judge has discretion to exclude** the statement **if it appears untrustworthy**
70
What is the CEC-only hearsay exception for "statements describing infliction or threat of physical injury"?
Under the **CEC**, a statement made by an **unavailable declarant** that **describes, narrates or explains** the **infliction or threat of physical injury on the declarant** is admissible if the statement (1) was **made at or near the time** of the infliction or threat, (2) was **made under circumstances that indicate trustworthiness**, and (3) is either **in writing**, **recorded** or **made to a law enforcement official or medical personnel**
71
What is the CEC-only hearsay exception for "statements of past physical condition or state of mind"?
Under the **CEC**, an **unavailable declarant's** statement of their **past physical or mental condition**, including a statement of **intention**, is admissible **to prove such condition if it is an issue in the case**
* The trial judge has specific **discretion to exclude** statements that are made under circumstances that **indicate a lack of trustworthiness**
72
What are the hearsay exceptions that do NOT require the declarant to be unavailable?
1. **B**usiness Records
2. **J**udgments (Civil)
3. **S**tate of Mind or Physical Condition (Present)
4. **P**resent Sense Impression
5. **E**xcited Utterances / Spontaneous Statements
6. **R**ecorded Reollection
7. **M**edical Diagnosis / Treatment
8. **C**onvictions (Felony)
9. **L**earned Treatises
10. **A**ncient Documents
11. **P**ublic Records
## Footnote
"**BJ SPERM CLAP**"
73
What is the "present sense impression" hearsay exception?
**FRE:** Under the FRE, a statement that ***describes or explains an event or condition***, and is ***made while or immediately after*** the **declarant** ***perceives*** the event or condition, is admissible as a **"present sense impression"**
**CA:** The CEC exception for present sense impressions is ***much narrower*** and ***applies only when***:
1. a statement ***explains*** the **declarant's** own ***conduct***; and
2. is ***made while*** the declarant was ***engaging in that conduct***
74
What is the "excited utterance" (or "spontaneous statement") hearsay exception?
A statement ***relating to a startling event***, ***made while*** the declarant was ***under the stress of excitement produced by the event***, is admissible as an **"excited utterance"**
**CA:** The CEC calls these statements **"spontaneous statements"**
75
What is the "present state of mind or physical condition" hearsay exception?
A statement of the **declarant's** ***then-existing (present) state of mind*** (including their ***motive***, ***intent***, or ***plan***) or their ***emotional***, ***sensory*** or ***physical condition*** is admissible
* **"State of mind"** includes the **declarant's** ***intent to do something in the future***, including the ***intent to engage in conduct with another person***
* But ***except as to certain facts concerning*** the declarant's ***will***, a statement of ***memory or belief*** is ***NOT admissible to prove the truth of the fact remembered or believed***
**CA:** The CEC gives the **judge** ***specific discretion to exclude statements*** that are made under ***circumstances that indicate a lack of trustworthiness***
76
What is the "statements made for purposes of medical diagnosis or treatment" hearsay exception?
**FRE:** A statement that **describes** a person's **medical history, past or present symptoms, or their inception or general cause** is **ADMISSIBLE** as an exception to the hearsay rule if it was **made for--and reasonably pertinent to--medical diagnosis or treatment**
* This exception **covers** statements of **PAST condition**
**CEC:** Under the **CEC**, this exception **applies ONLY where** (1) the **declarant is a minor at trial**, (2) the declarant was **under age 12 at the time of their statement**, and (3) the statement **described an act or attempted act or child abuse or neglect**
77
What is the "business records" hearsay exception?
**FRE:** Any writing or record made by a **business** as a memorandum of any **act, event, condition, opinion or diagnosis** is **ADMISSIBLE** as an exception to the hearsay rule if (1) it was made in the **regular course of business**, (2) the business **regularly keeps such records**, (3) was **made at or near the time of the event**, and (4) consists of matters **within the personal knowledge of the entrant**, or within the knowledge of **someone with a duty to transmit such matters** to the entrant
**CEC:** The **CEC** exception **does NOT refer** to **opinions or diagnoses**, though courts will admit simple opinions and diagnoses
78
What is the required foundation for business records?
The **authenticity of a business record must be established** by a sponsoring witness, who can be a **custodian of records** or **any person in the business who is knowledgeable about the business's recordkeeping**, either (1) ***testifying*** that the record meets the elements of the business records exception or (2) ***certifying in writing*** that the record meets the elements of the business records exception
79
What is the "public records" hearsay exception under the FRE?
Under the **FRE**, a record of a **public office or agency** is **ADMISSIBLE** as an exception to the hearsay rule if it was **made by and within the scope of the duty of a public employee**, was made **at or near the time of the event**, and (1) describes the ***activities of the office or agency***; (2) describes ***matters observed pursuant to duty imposed by law*** (but **NOT** including **police observations** when offered in a **CRIMINAL** case); or (3) contains ***factual findings resulting from an investigation made pursuant to authority granted by law*** (but **NOT** when offered by the **PROSECUTION** in a **CRIMINAL** case)
80
What is the "public records" hearsay exception under the CEC?
Under the **CEC**, a record of an **act, condition or event** made by a **public employee** is **ADMISSIBLE** as an exception to the hearsay rule if (1) **making the record was within the scope of their duties**, (2) the record was **made at or near the time of the matters described** and (3) the **sources of information and time of preparation indicate trustworthiness**
81
What is the "recorded recollection" hearsay exception?
When a witness has **insufficient recollection** of an event to testify from memory, even **after consulting a record**, the **record itself may be read into evidence** if the following foundation is laid:
1. the witness at one time had ***personal knowledge of the facts*** recited in the record;
2. the record was ***made by the witness***, ***under her direction*** or ***adopted by the witness***;
3. the record was ***timely made*** when the matter was ***fresh in the witness's mind***;
4. the record ***accurately reflects the witness's knowledge*** (i.e., the witness must indicate that the record was accurate when it was made); and
5. the witness has ***insufficient recollection to testify fully and accurately***
**NOTE:** If admitted, the record **may be read** into evidence but **may NOT be received as an exhibit UNLESS offered by the adverse party**
82
What is the "learned treatises" hearsay exception?
**FRE:** A relevant excerpt from a **treatise, periodical or pamphlet** may be used to **impeach the qualifications of an expert witness**, and the excerpt itself **may be read into the record** if the treatise is (1) **called to the attention of the expert** witness on **cross-examination** or **relied on by the expert during direct** examination and (2) **established as reliable authority** by the testimony or admission of the **witness**, by **other expert testimony** or by **judicial notice**
* If admitted, the excerpt may be ***read into evidence but NOT received as an exhibit***
**CEC:** The CEC hearsay exception for learned treatises is **very narrow** and applies only to **facts of general notoriety and interest** found in published maps or charts, or books of history, science or art
83
What is the "prior felony convictions" hearsay exception?
**FRE:** A judgment of a **felony conviction** is admissible as an exception to the hearsay rule in both **criminal** and **civil** actions **to prove any fact essential to the judgment**
* In a **criminal** case, the **government** may use a prior conviction for **this purpose** only **against the accused**; against **persons other than the accused**, the government may use prior convictions **only for impeachment**
**CEC:** The CEC hearsay exception for prior felony convictions **applies only in CIVIL cases**; however, a **certified copy** of a judgment of conviction **may be admitted under the public records exception**
84
What is the "ancient documents" hearsay exception?
**FRE:** Under the **FRE**, an authenticated document **prepared before 1998** can be offered for the truth of its contents under the "ancient documents" exception to the hearsay rule
**CEC:** Under the **CEC**, a document must be **more than 30 years old** to fall within the exception
85
What is the FRE-only "catch-all" hearsay exception?
The **FRE** recognize a **"catch-all"** hearsay exception that allows a hearsay statement not covered by a specific enumerated exception to be admitted if:
1. it possesses ***sufficient guarantees of trustworthiness*** (considering the totality of the circumstances and any corroborating evidence);
2. it is ***more probative*** as to the fact for which it is offered than ***any other evidence the proponent can reasonably obtain***; and
3. the proponent gives the ***adverse party reasonable notice of their intent to offer*** the statement, including the ***substance*** of the statement and ***name of the hearsay declarant***
86
When does the Confrontation Clause bar admission of a hearsay statement?
Under the **Confrontation Clause** of the Sixth Amendment, a **hearsay statement will NOT be admitted** (even if it falls within a hearsay exception) when:
1. the statement is ***offered against the accused*** in a ***criminal*** case;
2. the hearsay ***declarant is unavailable***;
3. the statement was ***"testimonial" in nature***; and
4. the ***accused had no opportunity to cross-examine*** the declarant's "testimonial" statement ***prior to trial***
**NOTE:** However, the statement **may be admitted** if the ***prosecution*** demonstrates that the **defendant forfeited** his Confrontation Clause objection by **wrongdoing that prevented the declarant from testifying at trial**
87
When is a statement "testimonial" for purposes of the Confrontation Clause?
A statement is **"testimonial"** for purposes of the Confrontation Clause if it was **made in response to police interrogation**, and the **primary purpose** of the **interrogation** is to **establish or prove past events** potentially relevant to a later **criminal prosecution**
* By contrast, a statement is **NOT testimonial** if the **primary purpose** of the interrogation is to **enable the police to help in an ongoing emergency**
88
What factors are considered in determining whether an "ongoing emergency" existed at the time of police interrogation?
In determining whether an "ongoing emergency" existed at the time of police interrogation, courts consider various factors, including:
1. the ***nature of the dispute*** (public vs. private);
2. whether the ***perpetrator is still at large***;
3. the ***scope of the threat*** to the victim and to the public; and
4. the ***type of weapon involved***
89
What is the general rule regarding the authentication of evidence?
Any item of **documentary or real evidence** will not be received in evidence unless it is first **authenticated** by proof that shows that the **item is what the proponent claims it is**
* The proof must be ***sufficient to support a jury finding of genuineness***
90
What is the rule regarding the authentication of oral statements?
When an **oral** **statement** is admissible only if said by a ***particular person*** (e.g., a statement by a party-opponent), authentication of the ***identity of the speaker*** is required
91
How can a person's voice be authenticated?
A **voice** can be authenticated by the testimony of **anyone who has heard the voice *at any time***, including ***after*** litigation has begun and for the sole purpose of testifying
92
How can statements made during a telephone conversation be authenticated?
Statements made during a **telephone conversation** can be authenticated by any party to the call who testifies that:
1. they ***recognized*** the other party's voice;
2. the speaker had ***knowledge of certain facts*** that ***only a particular person would have***;
3. they ***called a particular person's number*** and a voice ***answered as that person or that person's residence***; OR
4. they ***called a business*** and talked with the person answering the phone ***about matters relevant to the business***
93
How can documentary evidence be authenticated?
A **document** can be **authenticated** by evidence that:
1. the ***party against whom it is offered*** has ***admitted*** its authenticity or acted upon it as authentic
2. ***Eyewitness testimony*** of anyone who saw the document executed or heard it acknowledged
3. the ***maker's handwriting is genuine***, which may be in the form of:
(i) the **opinion of a lay witness** who is ***familiar*** with the alleged writer's handwriting in the ***course of normal affairs***;
(ii) the **opinion of an expert** who has ***compared the writing to samples*** of the alleged writer's handwriting; OR
(iii) the **fact-finder's (jury's) comparison** of the writing to samples of the alleged writer's handwriting
4. the writing was ***written in response*** to a communication sent to the alleged writer (the **"reply letter" doctrine**); OR
5. the document is an ***"ancient document,"*** meaning it:
(i) is in a ***condition*** that creates ***no suspicion as to authenticity***;
(ii) was ***found in a place*** where such a document would ***likely be kept***; AND
(iii) is at least **FRE:** ***20 years old*** or **CA:** ***30 years old***
94
What are self-authenticating documents?
Extrinsic evidence of authenticity is not required for the following **"self-authenticating" documents**:
1. domestic ***public documents bearing a seal***, and similar official foreign public documents;
2. ***official publications*** (e.g., a government pamphlet)
3. ***certified*** copies of ***public records*** or private records on file in a public office
3. ***newspapers*** and periodicals
4. ***acknowledged (notarized)*** documents
5. ***commercial paper*** (including signatures thereon) and related documents
6. **FRE:** ***trade inscriptions and labels*** (meaning, a tag or label that purports to have been attached in the course of business and indicates ownership, control or origin)
7. **FRE:** ***business records***, electronically generated records, and data copied from an electronic device if:
(i) the records are ***certified***; AND
(ii) the proponent gives the adverse party ***reasonable written notice*** and an ***opportunity for inspection***
95
What is the "best evidence rule" (or "secondary evidence rule")?
When evidence is offered to ***prove the contents of a "writing,"*** the **best evidence rule** requires the ***original*** writing to be produced (subject to certain exceptions)
* **"Writing":** Includes a writing, recording, photograph, video, x-ray and any tangible collection of data
* **"Original":** The writing itself or any counterpart intended to have the same effect as an original, photograph print, and the printout or other readable output of electronically stored information
* **"Duplicate":** An exact copy of an original made by mechanical means (e.g., photocopy)
**CA:** This rule is called the **"secondary evidence rule"** in **California**
96
When does the best evidence rule (secondary evidence rule) apply?
The best evidence rule **applies** in **two situations**:
1. where the writing is a ***legally operative or dispositive instrument***; OR
2. where a ***witness's knowledge*** of a fact ***results from having read it in the writing***
97
When are duplicates admissible under the best evidence rule (secondary evidence rule)?
Where the best evidence rule applies, **duplicates** are ***admissible to the same extent*** as originals **unless**:
1. the ***circumstances make it unfair*** to admit the duplicate: OR
2. a ***genuine question*** is raised about the ***authenticity*** of the ***original***
98
When is secondary evidence admissible under the best evidence rule (secondary evidence rule)?
**FRE:** Secondary evidence of the writing's contents (such as handwritten or reconstructed copies) is **NOT admissible UNLESS a satisfactory excuse is given for nonproduction of the original**, such as:
1. ***loss or destruction*** of the original (unless the proponent lost or destroyed the original in bad faith);
2. the original ***cannot be obtained by any available judicial process***; OR
3. the original is in the ***possession of an adversary, who, after due notice, fails to produce it***
**CA:** In **California**, where the secondary evidence rule applies, ***duplicates AND any WRITTEN secondary evidence of the original are all usually admissible*** (unless it would be ***unfair*** or a ***genuine question of authenticity*** is raised)
99
When does the best evidence rule (secondary evidence rule) NOT apply?
The best evidence rule does **NOT** apply:
1. where the ***fact to be proved*** has an ***existence independent of any writing*** (in which case, any witness with personal knowledge of the fact can testify as to it)
2. where the ***writing is of minor importance*** (i.e., collateral) to the matter in controversy;
3. to copies of ***public records*** that are ***certified or testified to as correct***
4. to ***summaries of voluminous records***
> **BUT:** the proponent must make originals or duplicates of the underlying documents ***available for inspection or copying***, and the ***court may order they be produced***
5. where the ***party against whom the writing is being offered*** has given ***testimony, a deposition or a written admission about the writing's contents***, the proponent ***may use such evidence*** and need not give a satisfactory excuse for non-production of the original writing
100
What is real evidence?
**Real evidence** is actual **physical** evidence addressed directly to the trier of fact, and it may be direct, circumstantial, original or prepared (demonstrative)
101
How can real evidence be authenticated?
**Real evidence** can be **authenticated** by:
1. ***witness testimony*** that the witness ***recognizes the item*** as what the proponent claims it is; OR
2. evidence that the item has been held in a ***substantially unbroken chain of possession***
**NOTE:** If the ***condition*** of the object is of ***significance***, it must be shown to be in ***substantially the same condition at trial***
102
What facts are appropriate for judicial notice?
Judicial notice may be taken of any fact **"not subject to reasonable dispute"** because it (1) is ***generally known*** within the trial court's ***territorial jurisdiction*** or (2) ***can be accurately and readily determined*** from ***sources whose accuracy cannot reasonably be questioned***
* **FRE:** Judicial notice **MAY** be taken of such facts **at any time**, and judicial notice **MUST** be taken if a **party requests** it
* **CEC:** The rule is the **same as the FRE**, **except** a court **MUST** take judicial notice of facts that are **universally known**, ***whether or not a party requests*** it
103
When is a judicially noticed fact conclusive?
**FRE:** A judicially noticed fact is conclusive **ONLY** in a **civil** case
**CEC:** A judicially noticed fact is conclusive in **civil AND criminal** cases
104
What is a testimonial privilege?
A testimonial privilege permits a person to refuse to disclose, and prohibit others from disclosing, confidential information in judicial proceedings
105
In general, what type of communications are protected by a privilege?
To be privileged, a communication must be **shown or presumed** to have been **made in confidence**, meaning the ***communication was not intended to be disclosed to third parties***
* **FRE:** Federal courts **do NOT recognize a presumption of confidentiality** for all privileges, although it has been held that **communications between spouses for purposes of the confidential marital communications privilege** are ***presumed to be privileged***
* **CEC:** Under the CEC, a communication made between persons in a privileged relationship is **PRESUMED to have been made in confidence**, even if the communication was transmitted electronically
106
Is a privilege destroyed when a confidential communication was overheard by an eavesdropper?
Traditionally, an eavesdropper was permitted to testify as to a confidential communication between parties
* **FRE:** Under the FRE, a **privilege is not destroyed** because it was overheard by someone whose presence is unknown to the parties
* **CA:** In California, the **holder of a privilege may stop an eavesdropper from revealing confidential communication** protected by the privilege
107
When is a privilege waived?
Any privilege is waived by:
1. ***failure to claim the privilege***;
2. ***voluntary disclosure*** of the privileged matter by the ***privilege holder***; or
3. a ***contractual provision waiving in advance*** the right to claim a privilege
108
What is the attorney-client privilege?
Under the attorney-client privilege, **communications** between an **attorney and client** (or their respective **representatives**) that are **intended** by the client to be **confidential** and made for the **primary purpose of obtaining or rendering legal services** are **privileged** unless the privilege is waived by the client
* The **client holds the privilege** and only they can waive it
* The privilege applies **indefinitely**
**CEC:** Under the CEC, the attorney-client privilege terminates when the **deceased client's estate has been distributed** and the **personal representative has been discharged**
109
What communications does the attorney-client privilege extend to when the client is a corporation?
**FRE:** If the client is a corporation, the attorney-client privilege applies to communications between a lawyer and an employee or agent of the corporation if they were **authorized or directed** by the corporation to make such communications to the lawyer
**CEC:** Under the CEC, the privilege applies to communications between a lawyer and employee or agent of the corporation if they (1) are the **natural person to speak to the lawyer on behalf of the corporation** in the matter, or (2) **did something for which the corporation may be held liable**, and the corporation **instructed them** to tell the lawyer what happened
110
What are the exceptions to the attorney-client privilege?
The attorney client privilege **does NOT apply** where:
1. the **attorney's services were sought in furtherance** of something the client should have known was a **crime or fraud**
2. **two or more parties** consulted the attorney on a matter of **common interest**, and the communication is **offered by one party against the other in subsequent litigation**
3. a communication is **relevant** to an **issue of breach of duty in a dispute between the attorney and client**
4. the **client** has otherwise **put the legal services at issue** in the case
5. a communication is **relevant** to an **issue between parties claiming through the same deceased client**
6. **CEC:** the attorney **reasonably believes** disclosure of the communication is **necessary to prevent a crime that is likely to result in death or substantial bodily harm**
111
What is the physician-patient privilege?
In **California**, the physician-patient privilege applies to a **confidential communication with a licensed physician**, or someone the patient reasonably believes is a licensed physician, for the **purposes of medical diagnosis or treatment**
* The privilege also applies to communications with the physician's staff member while such person is serving as the physician's agent to gather information to pass on to the physician
* The privilege is **NOT applicable in CRIMINAL cases**
**FRE:** Federal courts do **NOT** recognize a physician-patient privilege
112
What are exceptions to the physician-patient privilege?
The physician-patient privilege **does NOT apply** where:
1. the **patient puts their condition at issue** in the case (e.g., in a personal injury case)
2. the professional services were **sought to aid in a crime or fraud**, or to **escape capture after commission of a crime or tort**
3. the case **alleges a breach of duty** between the **patient and physician**
4. the communication is **relevant** to an **issue between parties claiming through the same deceased patient**
113
What is the psychotherapist/social worker-client privilege?
**FRE:** Federal courts recognize a privilege for confidential communications between a psychotherapist or licensed social worker and their patient/client, and it operates in the same manner as the attorney-client privilege
**CEC:** The California pschotherapist-patient privilege covers a wide range of mental health workers, including social workers, counselors, school psychologists, etc.
114
What are exceptions to the psychotherapist/social worker-client privilege?
The psychotherapist/social worker-client privilege does NOT apply where:
1. the **patient puts their condition at issue** in the case (e.g., in a personal injury case)
2. the professional services were **sought to aid in a crime or fraud**, or to **escape capture after commission of a crime or tort**
3. the case **alleges a breach of duty** between the **patient and physician**
4. the communication is **relevant** to an **issue between parties claiming through the same deceased patient**
5. **CA:** the psychoterapist has **reasonable cause to believe the patient is a danger to themselves or others**, and that **disclosure is necessary** to end the danger
6. **CA:** the patient is a **child under the age of 16**, and the psychotherapist **reasonably believes** the child has been the **victim of a crime** and disclosure is in the **best interest** of the child
7. **CA:** the psychotherapist has been **appointed** by the **court**
115
What is the spousal testimonial privilege (spousal immunity)?
When the privilege of spousal immunity is invoked, a **married person** whose **spouse** is a **defendant** in a **criminal** case **may not be called as a witness by the prosecution**
* A married person **may not be compelled to testify against the legal interests of their spouse in any criminal proceeding**, regardless of whether their spouse is the defendant
* The privilege **can only be claimed *during* the marriage** but covers information learned before marriage
* The **privilege belongs to the witness spouse**, meaning they cannot be compelled to testify but may choose to do so
**CEC:** In California, the privilege applies to both **criminal AND civil** proceedings
116
What is the privilege for confidential marital communications?
In any **civil** or **criminal** case, confidential communications **between spouses *during* a valid marriage** are privileged
* **Either spouse can refuse to disclose** the communication or **prevent the other** person from doing so
* For this privilege to apply, the **communication must be made *during* marriage**, but divorce does NOT terminate the privilege
