Final Review

Question 1

What is the order to approach each item of evidence?

Answer 1

1. Rel
2. Foundation/PKR/Presentation
3. Form of Q/A
4. CE
5. Sim
6. Impeachment + Prop 8
7. Writings
8. HSY
9. HSY exceptions
10. Public Policy
11. Opinion
12. Judicial Notice
13. Privilege
14. 352

Question 2

Relevance

Answer 2

Evidence is relevant if it is PROBATIVE, in that it has any tendency to make a fact more or less likely/probable than it would be without the evidence; and MATERIAL in that the fact is of consequence to the determination of the action disputed by the parties.

Question 3

352 - Probative Value v. Prejudicial Effect

Answer 3

Under 352, WHICH IS UNTOUCHED BY PROP 8, evidence that is admissible may be excluded at the judge’s discretion if its probative value is substantially outweighed by the probability that it will waste court time, mislead the jury, or be unduly prejudicial.

Question 4

Leading Questions

Answer 4

Leading questions suggest the answer that the questioner wants in the body of the question. Generally, they are inappropriate on direct examination, except for ordinary background or contextual information, or on direct examination of a hostile or adverse witness.

Question 5

Non-Responsive Answer

Answer 5

This is a motion to strike objection in response to an answer, and it is appropriate both when the witness gives and answer that DOESN’T ANSWER THE QUESTION, and when the witness’ answer goes BEYOND THE SCOPE OF THE QUESTION.

Question 6

Speculation/Lacks Foundation/No PKR

Answer 6

A witness may only testify to facts of which they have personal knowledge of. Anything else is inadmissible speculation. Motion to strike.

Question 7

Character Evidence

Answer 7

Character evidence, which seeks to show conduct in conformity with a particular character trait, is generally inadmissible in all three forms (opinion, reputation, and specific acts).

Question 8

Mercy Rule

Answer 8

∆ offers ∆ CE with O & R

P rebut w/ O & R

CrossX w/ O, R, and S (S only used to impeach credibility of character witness as to their standard for evaluating the character trait)

Question 9

Character Evidence and Victims

Answer 9

If ∆ offers V’s relative bad CE w/ O&R&S, then π can rebut or CrossX w/ O&R&S of V’s good CE

If ∆ first offers O&R&S of V’s CE for violence, then π can EITHER rebut through O&R&S of V’s CE of peacefulness, OR attack ∆’s CE of violence

Question 10

Non-Character Purposes

Answer 10

MIAMI CCOPS

1. Motive
2. Identity
3. Absence of Mistake
4. Intent
5. Common Plan/Scheme, or Conspiracy
6. Context
7. Opportunity
8. Preparation/Knowledge
9. State of Mind

Question 11

Habit & Custom

Answer 11

A habit is (1) a regular response to (2) a repeated particular kind of situation (3) with specific conduct, admissible to show conduct in conformity with habit.

Question 12

What do the “C’s” mean for Similarity?

Answer 12

Cause

Question 13

Prior Similar Occurrences

Answer 13

Evidence of Prior Occurrences is INADMISSIBLE to prove negligence or propensity, but ADMISSIBLE to prove substantively similar circumstances to occurrences at issue in case, and CENO.

CAUSE of accident
EXISTENCE of dangerous condition
NOTICE / knowledge
OWNERSHIP

Question 14

Similar Lawsuits

Answer 14

Evidence of similar lawsuits is ADMISSIBLE if used to prove some proposition other than the predisposition to file false claims, such as common plan or scheme, or if prior claims are in issue

Question 15

Prior Similar Contracts

Answer 15

Evidence of Prior Similar Contracts between the SAME parties is ADMISSIBLE for a non-character purpose, such as habit, custom, or common plan.

Question 16

Subsequent Accidents

Answer 16

Evidence of Subsequent Accidents are only ADMISSIBLE to prove:

1) CAUSE of action in dispute, and
2) Existence of a particular dangerous condition

Question 17

Other Prior Accidents

Answer 17

Evidence of other prior accidents are INADMISSIBLE to prove ultimate issues, but allowed to prove notice.

Question 18

What are the 5 types of Similarity?

Answer 18

1) Prior Similar Occurrences
2) Similar Lawsuits
3) Prior Similar Contracts
4) Subsequent Accidents
5) Other Prior Accidents

Question 19

What do the “C’s” mean for Public Policy Exclusions?

Answer 19

Control

Question 20

Subsequent Precautions or Remedial Measures

Answer 20

Evidence of a remedial or precautionary measure taken after the occurrence of the event, which would have tended to make the event less likely to occur, is INADMISSIBLE to prove negligence or culpable conduct in connection with the event, but is ADMISSIBLE for other purposes, IF AT ISSUE, such as COIF, products liability & product defects/liability.

COIF =

Control
Ownership
Impeachment
Feasibility of alternative design

Question 21

Please and Related Statements

Answer 21

Please and related statements made during bona fide plea negotiations to police or prosecutors are INADMISSIBLE as admissions in both civil and criminal proceedings, but may be used to impeach later inconsistent testimony in criminal cases.

Nolo contendere pleas are ADMISSIBLE in criminal cases, but only in civil cases if acts constituted a felony.

Question 22

Offers of Compromise

Answer 22

Evidence of Offers to compromise, negotiations, to pay hospital/medical/funeral bills AND connected admissions of guilt are INADMISSIBLE to prove liability for loss or damage, or for invalidity of the claim in civil cases. An actual dispute as to liability or damages must exist for the offer of compromise to be inadmissible.

Question 23

For what other purposes are offers of compromise admissible?

Answer 23

O-BUDI

1) To prove a party attempted to OBSTRUCT a criminal investigation
2) to show BIAS or prejudice of a witness
3) to negate a contention of UNDUE DELAY
4) To IMPEACH

Question 24

Statements of Benevolent Gestures & Expressions of Sympathy

Answer 24

Inadmissible in civil, but admissions made in connection with expressions of sympathy are admissible.

Question 25

Liability Insurance

Answer 25

Evidence of Insurance, or the ABSENCE of insurance, is inadmissible to prove negligence or other wrongdoing. Only admissible for CABO.

Control
Agency
Bias/Prejudice of Witness
Ownership

Question 26

What are the 4 types of Public Policy exclusions?

Answer 26

1) Subsequent Precautions or Remedial Measures
2) Please and Related Statements
3) Offers of Compromise
4) Liability Insurance

Question 27

Hearsay Definition

Answer 27

Hearsay is an out of court statement used to prove the truth of the matter asserted. In general, hearsay is inadmissible absent an exception under CEC.

Question 28

What are the Non-Hearsay Purposes?

Answer 28

NAPKINS VAEL

The evidence code permits evidence of certain out of court statements offered for a non-hearsay purpose:

1) To prove that NOTICE or warning was given
2) To prove that the declarant was ALIVE or conscious
3) To prove why a PARTICULAR course of action was taken (sd)
4) To prove POSSESSION of relevant knowledge
5) To IMPEACH a witness by disproving assertions the witness testified.
6) To prove the NATURE of a business or place, circumstantially
7) To prove the declarant’s STATE of mind (comes in under effect on listener)
8) To prove that info requiring further investigation was available.
9) Verbal Acts Doctrine
10) To prove EFFECT on listener or reader

Question 29

Verbal Acts doctrine

Answer 29

Evidence is not intended for the truth of their content, but ot show legally relevant conduct itself. For the verbal acts doctrine to apply, the witness MUST have personal, first-hand knowledge of the statement constituting the verbal act.

Question 30

Confrontation Clause

Answer 30

According to Crawford v. Washington, when the PROSECUTION offers TESTIMONIAL HEARSAY statements (an out of court statement solicited by a government officer with an eye for use at trial), against the accused, even if under a valid hearsay exception, the accused’s confrontation rights are violated and the statements are INADMISSIBLE, UNLESS: 1) the out of court declarant is produced for CrossEX, or 2) that declarant is unavailable and the accused had a prior opportunity to CrossEX the declarant.

Question 31

What is a Testimonial Hearsay Statement?

Answer 31

An out of court statement solicited by a government officer with an eye for use at trial.

Question 32

When does the 6th Amendment NOT apply?

Answer 32

1) The out of court declarant is produced for CrossEx, or

2) That the declarant is unavailable and the accused had a prior opportunity to CrossEx the declarant.

Question 33

What are the 10 Hearsay Exceptions not requiring Unavailability?

Answer 33

1) Party Opponent Admissions
2) Adoptive Admissions
3) Authorized Admissions
4) Admissions by Conduct
5) Vicarious Admissions
6) Judicial Admissions (In Civil Cases)

7) Co-Conspirator Declarations

8) Prior Inconsistent Statements
9) Prior Consistent Statements
10) Prior Statements of Identification

Question 34

Party Opponent Admission

Answer 34

Party Opponent Admissions are admissible hearsay statements of assertive words OR conduct made by a party that, if true, helps the other party’s case.

Question 35

Adoptive Admissions

Answer 35

A statement is admissible as an adoptive admission if the party or its representative manifests an adoption or belief in its truth by words, conduct, or silence in a CIVIL CASE if a reasonable person would have objected. HOWEVER, if it’s a statement made by law enforcement, the 5th Amendment bars the use of admissions by silence.

Question 36

Authorized Admissions

Answer 36

A statement is ADMISSIBLE as an authorized admission if it is offered against an opposing party and was made by a person authorized to make a statement on the subject.

Question 37

Admissions by Conduct

Answer 37

The conduct of a party can be offered whether or not it is assertive. If the conduct is intended to substitute for an assertive statement, it is hearsay but ADMISSIBLE as a party admission for the truth of the statement. If it is non-assertive conduct, then it is ADMISSIBLE for what it is circumstantially probative to show.

Question 38

Vicarious Admissions

Answer 38

Where a party is being held vicariously liable for the actions of its employee under a theory of respondeat superior, statements by that employee which would have constituted an admission against them personally can also be held against the employer as a vicarious admission.

Question 39

Judicial Admissions (In Civil Cases)

Answer 39

Judicial admissions are found in pleadings and discovery responses, and are binding on both the parties and the fact finder. Stipulations as to facts operate as judicial admissions to bind the parties and fact finder.

Question 40

Co-Conspirator Declarations

Answer 40

A statement is ADMISSIBLE as a co-conspirator POA if it is offered against a party, and made by a party’s co-conspirator CONCERNING, DURING, and in FURTHERANCE of the conspiracy. For the statement to be admissible under the CEC, there must be independent evidence of the existence of conspiracy and declarant’s involvement in it.

According to Crawford v. Washington, when the PROSECUTION offers TESTIMONIAL HEARSAY statements (an out of court statement solicited by a government officer with an eye for use at trial), against the accused, even if under a valid hearsay exception, the accused’s confrontation rights are violated and the statements are INADMISSIBLE, UNLESS: 1) the out of court declarant is produced for CrossEX, or 2) that declarant is unavailable and the accused had a prior opportunity to CrossEX the declarant.

Conspiracy requires an agreement between two or more persons with the intent to agree and to complete the target offense.

Question 41

Prior Inconsistent Statements

Answer 41

Prior Inconsistent Statements are ADMISSIBLE for impeachment and to prove the truth of the other statement if: 1) the prior statement was made by the witness before trial, 2) statement is inconsistent with the witness’ testimony at trial, AND 3) the statement is in compliance of CEC 770, which says that while testifying, the witness must have been given an opportunity to explain or deny the PIS, or the witness must not have been excused from giving further testimony in the action.

Question 42

Prior Consistent Statements

Answer 42

Prior Consistent Statements are ADMISSIBLE to bolster witness credibility and for the truth of the matter stated, but may only be introduced after the attack on credibility through PIS or a charge of fabrication or bias. The consistent statement must have been made prior to any inconsistent statement alleged or reason for motive or bias. If PCS is otherwise admissible on the issue of witness credibility, the PCS is also admissible to prove the truth of their conduct.

Question 43

Prior Statements of Identification

Answer 43

A witness’ prior statement of identification is ADMISSIBLE in CRIMINAL CASES ONLY if it is (1) an identification of a party who participated in the crime or tort, (2) made when the incident was fresh in their memory, (3) and the statement is offered after the witness first testifies they made the identification and that it was a true reflection of their opinion at the time.

Question 44

What are ways to be unavailable?

Answer 44

RAPID

Refusal to Testify
Absent Beyond Subpoena Power
Privilege
Illness (mental/physical)
Death

Question 45

What are the hearsay exceptions that do not require unavailability?

Answer 45

1. Former Testimony under CEC
2. Declarations of Past Physical Condition
3. Declarations against Interest
4. Declarations by Crime Victims (OJ Rule)
5. Dying Declarations
6. Spontaneous Statements
7. Contemporaneous Statements
8. State of Mind Declaration
9. Declaration of PAST physical sensation

Question 46

Former Testimony under CEC

Answer 46

Under CEC 1291, prior testimony is ADMISSIBLE when the party against whom the former testimony is offered was the SAME party to the action or proceeding in which the testimony was given and had the right and opportunity to cross examine the currently UNAVAILABLE declarant with an interest and motive similar to that which he has at the hearing.

Under CEC 1292, prior testimony is also ADMISSIBLE against a party who was NOT a party to the earlier proceeding, if the declarant is UNAVAILABLE, the testimony is offered in a CIVIL action and the party opposing the evidence in the current proceeding must have had the right and opportunity to cross examin the declarant with an interest and motive similar to that which he has at the hearing.

Question 47

Declaration of Past Physical Condition

Answer 47

Generally inadmissible in CA unless it is, itself, in issue.

Question 48

Declarations against Interest

Answer 48

For a statement to be admissible as a declaration against interest, the proponent must show that the NON PARTY DECLARANT is unavailable to testify and that it was against the declarant’s own interest to have made the declaration. CAN’T INCLUDE STATEMENTS DISSERVING OF ANYONE ELSE’S INTEREST OTHER THAN THE DECLARANT.

Proponent must show the declaration was SO FAR CONTRARY to declarant’s interest that a reasonable man would not have made the statement unless he believed it to be true.

Question 49

OJ Rule

Answer 49

You know it.

Question 50

What are the hearsay exception writings?

Answer 50

1. Present Recollection Refreshed.
2 Past Recollection Recorded
3. Business Records
4. Official Records
5. Testimonial Statements in Business or Official Records
6. Learned Treatises
7. Commercial Lists
8. Judgments

Question 51

Present Recollection Refreshed

Answer 51

Present recollection refreshed is not a hearsay issue, since no out of court statement is being introduced. Anything can be used to refresh the witness’ recollection. The witness, who fails to recall something, can read it to themselves, and if it refreshes their memory, then before they can testify, opposing counsel is entitled to see the writings and may introduce portions for CrossEx, IF the portions impeach testimony.

Question 52

Past Recollection Recorded

Answer 52

Under the past recollection recorded hearsay exception, a witness will READ the writing aloud into evidence. Testimony of this type of prior statement is ADMISSIBLE (1) if the witness cannot currently recall the facts of the writing, (2) the writing was created or adopted by the witness with personal knowledge of the events contained, (3) it was made soon after the event occurred when memory was fresh, and (4) it was authenticated as a true and accurate depiction and made under reliable conditions.

The writing itself is NOT received into evidence so as to not unduly impress the jury by the document’s existence.

Question 53

Business Records

Answer 53

Business records are only admissible as a hearsay exception if the entry reflects it was prepared by someone with a duty to enter the record accurately, made in the regular course of the business, and be made at or near the time of the act, condition, or event recorded. The custodian must also testify to the record’s identity and its mode of preparation, and the sources of information and method and time of preparation must indicate its trustworthiness.

Question 54

Official Records

Answer 54

To be admissible, official records must be made by and within the scope of duty of the public employee. Official records are self-authenticating to the identity and mode of preparation. Opinion evidence is admissible under its normal rules.

Question 55

Testimonial Statements in Business/Official Records

Answer 55

For a statement in the business or official record to be considered testimonial, (1) the record must be made by/to law enforcement officer/agent, and (2) the record describes a past fact related to criminal activity, made with an eye for use at trial.

Question 56

Learned Treatises

Answer 56

Hearsay exception for historical works, books of science or art, and published maps or charts, made by persons indifferent to the parties, are admissible when offered to prove facts of general notoriety and interest. Written work inadmissible if the information is in a field subject to changes in knowledge, such as medicine.

Question 57

Commercial Lists

Answer 57

Hearsay exception for a statement, other than an opinion, contained in a tabulation, list, directory, register, or other published compilation that is generally used and relied upon as accurate in the course of business.

Question 58

Judgments

Answer 58

Hearsay exception for final judgments of conviction in felony cases, which may be used in civil cases to prove any fact essential to the criminal judgment. The judgment of conviction may be based on guilty verdicts, a finding of guilt by the judge, or pleas of guilty or nolo contendere. Any final judgment of conviction is also admissible as a hearsay exception if it qualifies as an official record.

Question 59

Dying Declarations

Answer 59

Evidence of a statement made (1) by a dying person, (2) concerning the cause and circumstances of their death of which they have personal knowledge of, and (3) under a sense of immediately impending death, is ADMISSIBLE as a hearsay exception.

Question 60

Spontaneous Statements

Answer 60

The “spontaneous statement” hearsay exception allows statements to be admissible if it (1) purports to narrate, describe, or explain a startling act, condition, or event, and (2) were made spontaneously while the declarant was under the stress of excitement caused by such perception. Regarding time lapse, the key is whether a person’s reflective powers have returned.

Unlike FRE, CEC does not have an exception for a present sense impression — a statement describing an event while perceiving it or immedately after. While, under FRE, FACTS may have qualified the statement as a present sense impression, because there is no such exception in CA, the statement is not admissible on that ground.

Question 61

Contemporaneous Statements

Answer 61

The “contemporaneous statement” hearsay exception says statements are admissible when made by the declarant, which explains, qualifies, or makes understandable their own conduct, made WHILE engaging in the conduct.

Unlike the FRE, CEC does not have an exception for a present sense impression — a statement describing a statement while perceiving it or immediately after. While, under the FRE, FACTS may have been sufficient to qualify the statement as a present sense impression, because there is no such exception in CA, the statement is NOT admissible on that ground.

Question 62

State of Mind Declarations

Answer 62

Statements are admissible if offered to prove the declarant’s relevant THEN-EXISTING SOM, emotion, or physical sensation if it is at issue.

Question 63

Declaration of PAST physical sensation

Answer 63

Declarations of past physical sensations are INADMISSIBLE. CEC doesn’t allow for this; only then-existing under SOM exception.

Question 64

What do you do when you have a writing?

Answer 64

1. Authentication
2. Secondary Evidence Rule
3. Hearsay

Question 65

Authentication of Writings

Answer 65

Whenever a party wants to have a writing considered as evidence, the party must offer any admissible evidence to permit a judge to find that the writing is what the party claims it is — that it is authentic, determined by a sufficiency standard. A writing can be authenticated by anyone who saw the writing made or executed, or by evidence that the party against whom it is offered has, at any time, admitted its authenticity or treated it as authentic. Only certified copies of judgments are self-authenticating and presumed to be authentic (leaving a rebuttable presumption of authenticity). A will is not self authenticating.

Question 66

Secondary Evidence Rule

Answer 66

SER requires the CONTENT (not the conversation) of a writing, when at issue, to be proved by the original or a copy of the writing, rather than testimony. Once a document or writing has been admitted into evidence, the SER no longer applies and the jury can examine the document.

Question 67

Completeness Doctrine

Answer 67

Opposing party has right to introduce remainder of document even if violates hearsay rule.

Question 68

In what ways can you impeach Witnesses?

Answer 68

P(ICB) PHOBICC

1. Prior Inconsistent Statements
2. Prior Consistent Statements
3. Prior Bad Acts
4. Prop 8
5. Hearsay Declarant
6. Opinion/Reputation
7. Bias or Interest
8. Impairment
9. Convictions
10. Competency

Question 69

Prior Inconsistent Statements

Answer 69

PIS is always admissible to impeach and always admissible for the truth. Examiner must give the witness the opportunity to explain or deny the inconsistent statement, or not excuse the witness from testifying before introducing extrinsic evidence of the statement.

Question 70

Prior Consistent Statements

Answer 70

PCS are made before the incident giving rise to the challenge to a witness’ credibility and are admissible if they are offered after attacks have been made on the witness’ credibility, either with a prior inconsistent statement, or with a charge that the witness is biased or recently fabricated her testimony.

Question 71

Prior Bad Acts

Answer 71

In civil cases, under CEC 787 and 788, specific instances of a prior bad acts and misdemeanor convictions in CA is inadmissible to attack or support the credibility of a witness. Evidence of past felony convictions are, however, admissible. Specific instances may not be proved by extrinsic evidence.

In Criminal cases, Prop 8 has repealed the ban and allows all relevant evidence in such cases. Certain prior bad acts, whether felonies, misdemeanors, or unconvicted bad acts that involve moral turpitude are admissible, as are good acts that would rehabilitate witnesses on the issue of credibility.

Question 72

Prop 8 (witness impeachment)

Answer 72

Prop 8 only affects witness impeachment rules in criminal cases and almost any evidence that would impeach a witness’ credibility is admissible, subject to 352. Illegally obtained confessions to impeach and evidence of prior bad acts are admissible if relevant.

Question 73

Hearsay Declarant (witness impeachment)

Answer 73

If a hearsay declaration is admissible, so is any inconsistent hearsay declaration by the same declarant to impeach and rehabilitate them, if offered by the other party, even if the declarant is not in court to explain or deny the inconsistency. However, unless that inconsistent declaration itself satisfies a hearsay exception, it is only admissible to impeach the hearsay declarant’s credibility —not has substantive evidence.

Question 74

Impeachment of Witness Character by Opinion/Reputation

Answer 74

In a CIVIL case, Opinion or Reputation evidence of the witness’ good character for honesty or veracity is only admissible AFTER the witness’ character has been attacked, either by evidence of bad character of honesty or veracity, or by felony convictions.

In a CRIMINAL case, the accused may introduce evidence of his good character for veracity, first, BEFORE an attack through either O/R, or Specific conduct. (Mercy + SC)

Question 75

Bias or Interest (witness)

Answer 75

Witness can be impeached with evidence of their bias or motive against one party, or incentive to benefit from their testimony.

Question 76

Impairment (witness)

Answer 76

Prove drugs/alcohol, or inability to perceive/recall/etc.

Question 77

Convictions (witness)

Answer 77

The fact of a witness’ own past convicted felony conviction may be used to show the witness’ lack of credibility in either a criminal or civil case, by either an admission, or a certified copy of the judgment. The criminal case convictions must involve moral turpitude.

Question 78

General Witness Competency

Answer 78

All persons, irrespective of age, are qualified to be witnesses, unless disqualified by statute. The basic three requirements of witness competency are (1) the ability to PERCEIVE an event or occurrence through use of the senses at the time it occurs; (2) to accurately RECOLLECT that occurrence or event afterward; and (3) to accurately and understandably COMMUNICATE that occurrence or event under oath.

Question 79

Credibility of Witnesses

Answer 79

The credibility of a witness is always relevant. An attack on the credibility of a witness is called impeachment, and a party is permitted to impeach their own witness.

Question 80

Opinion Testimony

Answer 80

An opinion is any non-exact assessment as the result of a deduction from an observation that cannot be independently verified by a reputable observation.

Question 81

Lay Opinion

Answer 81

Lay witnesses MAY give opinions on matters if their opinion is RATIONALLY BASED on the witness’ perception and is HELPFUL to understanding the witness’ testimony.

Question 82

Export Opinion

Answer 82

An expert is qualified to testify if he or she has special knowledge, skill, experience, training, or education sufficient to qualify him or her as an expert on the subject to which his testimony relates. An expert MAY give opinions on ULTIMATE FACTUAL issues to be decided upon by the jury, but may NOT give opinions to resolve matters of the law, or whether an accused had the particular mens rea to commit the charged crime.

Question 83

Expert Opinion and the Kelly Test

Answer 83

Where the opinion is predicated on a NOVEL TECHNIQUE, the proponent must persuade the court that the expert opinion is based on a scientific principle or technique that “has been sufficiently established to have gained general acceptance in the particular field in which it belongs.”

Question 84

Expert Opinion and the Reasonable Reliance test

Answer 84

The expert must rely on material that experts in the relevant field reasonably rely on in reaching opinions. Courts use this when the scientific methodology or the opinion are predicated on a well-known or accepted technique.

Question 85

What are the kinds of privileges?

Answer 85

1) Exempts certain PERSONS from their duty to give evidence (from even being called as a witness)
2) Exempts a witness form providing certain KINDS OR CATEGORIES of testimony
3) Protects INFORMATION COMMUNICATED IN CONFIDENCE in the context of an enumerated, often professional relationship.

Question 86

3 General Privilege Rules:

Answer 86

1) Objecting party on the grounds of privilege must establish the privileged nature of the matter by a preponderance of the evidence.
2) Communications protected are presumed to be confidential.
3) No comment rule = In order for a privilege to give its holder full protection, a fact finder must not draw negative inferences about the invocation of the privilege.

Question 87

Waiver of Privileges

Answer 87

o Privileges can be waived by their holders. If the holder waives the privilege, then the evidence can be received if it is otherwise admissible—if it is relevant and not prohibited by any other rule of evidence.
o Waivers include: Negligent, Conscious, Voluntary Disclosure to Another, by Consent, by One of Several Joint Holders, by Contract, or by Refreshing Recollection.
o Disclosing the fact of the communication does not waive the content of the communication.
o When two or more persons are joint holders of the privilege, a waiver by one does not waive the privilege for the others.
o Rejection of the eavesdropper rule, which would otherwise permit disclosure of the communication: The privilege is destroyed when the holder is aware that the means used for transmitting the communication will disclose it to third persons who are not authorized to be present.
o Privilege is not waived if the confidential communication was disclosed to a person to whom the disclosure is reasonably necessary for accomplishing the purpose for which the professional was consulted, or in the course of another confidential communication.

Question 88

What are the types of privileges?

Answer 88

1. Clergy-Penitent
2. Attorney-Client
3. Marital Communications
4. Psychotherapist-Patient
5. Physician-Patient
6. Spousal

Question 89

Clergy-Penitent Privilege

Answer 89

o As per the Clergy-Penitent Privilege, the Penitent has privilege to refuse to disclose and prevent another from disclosing a penitential communication
• Penitent = someone who makes a penitential communication to a member of the clergy, regardless of membership to denomination
o Communication must be made in confidence in the presence of no 3rd person to a member of the clergy who has a duty to keep such communication a secret

Question 90

Exceptions to Clergy-Penitent Privilege

Answer 90

There are generally no exceptions to the Clergy-Penitent Privilege

Question 91

Attorney-Client Privilege

Answer 91

o CEC provides clients and other holders of the Attorney-Client privilege: The right to refuse to disclose, or prevent others from disclosing confidential communication between client and atty. In order to be privileged: the communication must be:
• 1) Between a Client and Attorney
• 2) Made in the Course of the Atty/Clt rel (while in the course of retaining, securing, obtaining or receiving legal services or advice)
• 3) transmitted in confidence
• if the client is in fact aware, or reasonably should be aware, that the means used is not secure, then the communication is not confidential, is not privileged, and can be disclosed by anyone who overhears it
o An attorney, for the purpose of determining if a communication is protected by the attorney-client privilege, is, “a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation.”

Question 92

Exceptions to Attorney-Client Privilege

Answer 92

o no Atty Clt priv when/for
• Crime-fraud – when communication is made to enable/aid the client to commit a crime/fraud only
• Malpractice suits
• Discussing the intentions and validity of a will
• Atty reasonably believes that disclosure is necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in death, or substantial bodily harm to an individual
• Tangible Items

Question 93

Marital Communications Privilege

Answer 93

o The marital communications privilege provides that each spouse has the privilege to refuse to disclose, and prevent the other spouse, or others, from disclosing confidential communications that occurred during the marriage. This privilege does not terminate even if the marriage terminates.
o Communications between spouses made during the marriage are presumed to be confidential, and the burden is on proponent of the communication to produce evidence overcoming the presumption.

Question 94

Exceptions to Marital Communications Privilege

Answer 94

o Crime Fraud (enable/aid), Crimes against Other Spouse or Child
o Commitment/Guardianship/Conservatorship Proceedings
o Competency Proceedings, Dissolution Proceedings; Other Litigation
o Juvenile Court Proceedings – Custody of Children
o Criminal Proceeding – Communication offered by Defendant-Spouse

Question 95

Psychotherapist-Patient Privilege

Answer 95

o The PsychoTherapist-Patient privilege Provides patients and research subjects with a privilege to refuse to disclose and prevent others from disclosing a confidential communication with a psychotherapist.
• 1) between a Psychotherapist and Patient in the course of the relationship
• 2) in the course of the psychopatient therapist relationship, facts gleaned from exam
• 3) transmitted in confidence, so far as patient is aware, discloses the information to no third persons, other than to:
• people who further the interest of the patient in the consultation
• people who are reasonably necessary to achieve the purposes of the consultation
o Privilege includes the fact of the consultation and the patients identity, the diagnosis mad, and advice given.

Question 96

Exceptions to Psychotherapist-Patient Privilege

Answer 96

o Priv is construed liberally in favor the patient
o Exceptions to the Psychotherapist-Patient Privilege are construed narrowly
• when placed at issue
• emotional distress
• crime-TORT when communication is made to enable/aid the patient to commit a crime/TORT only
• breach of duty causes of action
• establishing competency
• determining sanity

Question 97

Physician-Patient Privilege

Answer 97

o The Physician-Patient Privilege Gives patients, whether or not a party, dual Privilege to both refuse to disclose AND prevent others from disclosing a confidential communication between the patient and physician
o 1) Comm between patient and physician in the course of the physician/client relationship
o 2) Communication consisting of info transmitted between patient and physician
o 3) Information transmitted in confidence by a means which, so far as the patient is aware, discloses the information to no third parties other than:
• people who further the interest of the patient in the consultation OR
• people who are reasonably necessary to achieve the purposes of the consultation

Question 98

Exceptions to Physician-Patient Privilege

Answer 98

o Physical, emotional, or mental state is at issue
o Crime, fraud, tort – burden to tell if they ask for help
o Disclosure is sought in a crim proceeding, Breach of duty causes of action, Establishing competence
o Contracts, Payments of fees

Question 99

Spousal Privielege

Answer 99

o A waiver of one spousal privilege is not a waiver of the other spousal privilege nor the marital communications priv.
o There are two spousal privileges: the privilege not to be called as a witness against a current spouse by an adverse party to that spouse, and the privilege not to testify against a current spouse.
o privilege may only be claimed during a valid marriage, by the testifying spouse, and this privilege ends when the spouses are no longer married.
o Testifying on behalf of spouse will waive the privilege to not testify against the spouse

Question 100

Exceptions to Spousal Privielege

Answer 100

o Proceedings between Spouses, Commitment/Competency proceeding
o Custody proceeding, Crimes against spouse or children, Criminal proceeding when charged with bigamy
o Proceeding involving a premarital crime act by one of the spouses regarding knowledge acquired before marriage.

Question 101

Judicial Notice

Answer 101

When a judge takes judicial notice of a fact, it conclusively establishes that fact and no further evidence is taken regarding that fact. A court must take judicial notice of facts that are not reasonably subject to dispute in that they are (1) facts of common knowledge within the territorial jurisdiction of the court; and (2) facts that can be readily ascertained by resorting to sources of reasonably indisputable accuracy.