Priscilla - Rules Flashcards
1
Q
What is Relevance?
A
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 the action and is disputed by the parties.
2
Q
§352 - Probative Value v. Prejudicial Effect
A
Although relevant, the court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.
3
Q
Why is Character Evidence generally banned?
A
There is a general ban on character evidence in any form (specific conduct, opinion, or reputation) because it describes a person’s character trait and is used to suggest that its more likely or not that they acted in conformity with that trait on a particular occasion.
4
Q
What are the three types of Character Evidence?
A
1) Specific Conduct
2) Opinion
3) Reputation
5
Q
What is the Mercy Rule?
A
In a criminal action, evidence of the defendant’s character or a trait of his character in the form of an opinion or evidence of his reputation is ADMISSIBLE if such evidence is:
(a) Offered by the defendant to prove his conduct in conformity with such character or trait of character; [or]
(b) Offered by the prosecution to rebut evidence adduced by the defendant under subdivision (a), or Offered through specific instances by the prosecution on cross-ex to discredit the defendant’s good character witness, if the specific instances are asked in good faith.
EXAMPLE:
o D offers D’s CE w/ O & R
o P rebut w/ O & R, or CrossX w/ S/O/R
6
Q
When is §352 Considered?
A
352 is only considered, and is only the proper grounds for an objection, if no other rule excludes the evidence.
7
Q
Character Evidence and Victims
A
o ∆ offers Victim’s relevant bad Character Evidence with O, R, and S
o π rebut or CrossX w/ O, R, and S of Victim’s good Character Evidence
o π attack ∆ character evidence with O and R on the same threat (usually self defense)
o If ∆ offers O, R, or S of Victim’s Character Evidence for violence, π can either rebut through O, R, or S of Victim’s Character Evidence of peacefulness, OR by ∆’s Character Evidence of Violence.
8
Q
What are the examples of Non-Character Purposes?
A
MIAMI CCOPS
The Evidence Code permits evidence of crimes, civil wrongs, and other acts when offered to prove something other than a person’s predisposition to commit such acts – as for a non-character purpose.
- Motive
- Identity of the Perpetrator
- Absence of Mistake
- Intent
- Common Plan, Scheme, or Conspiracy
- Context
- Opportunity
- Propensity for Abnormal Sexual Conduct
- State of Mind
9
Q
Non-Character Purpose: Motive
A
Often, evidence of another bad act can show the motive to have committed the crime with which defendant is charged.
10
Q
Non-Character Purpose: Identity
A
Sometimes, the perpetrator of a crime leaves a consistent, tell-tale signal or sign, or commits a crime in an identical method.
11
Q
Non-Character Purpose: Absence of Mistake
A
Evidence of prior intentional acts toward the victim or similar other victims are admissible to show the charged offense was not performed accidentally or innocently.
12
Q
Non-Character Purpose: Intent
A
This allows prior acts that indicate the accused’s mens rea.
13
Q
Non-Character Purpose: Common Plan/Scheme/Conspiracy
A
Sometimes, the crime on trial is part of a larger plan, scheme, or conspiracy. If so, then evidence of prior acts that are part of the plan or scheme is admissible. The Court in Ewoldt left unchanged the rule from Tassell that evidence of a common plan or design is still inadmissible unless the prosecution first identifies a noncharacter proposition to which the evidence is directed. That is, it isn’t enough to say that the evidence shows a common plan or purpose, but the prosecution must offer the evidence to show that the evidence was thereby indicative of some other fact, such as motive, state of mind, or other relevant fact. On the other hand, the Ewoldt court no longer requires that the charged and uncharged offenses are part of a single, continuing conception or plot, but only requires that the prior misconduct and the charged offense are “sufficiently similar to support the inference” that they are manifestations of a common design or plan. The prosecutor need only show “such a concurrence of common features [between the charged offense and the prior uncharged misconduct] that the various acts are naturally to be explained as caused by a general plan of which [such acts] are the individual manifestations.”
14
Q
Non-Character Purpose: Context
A
Sometimes, prior acts are necessary to place the story of the crime on trial in context.
15
Q
Non-Character Purpose: Opportunity
A
Evidence of prior acts may be admissible to show that the accused had the opportunity to commit the crime of which he is being tried.
16
Q
Non-Character Purpose: Propensity for Abnormal Sexual Conduct
A
This evidence may only be used to identify the accused.
17
Q
Non-Character Purpose: State of Mind
A
The accused’s other bad acts or crimes may be used to show the accused’s or the victim’s state of mind where relevant.
18
Q
What is a Habit or a Custom?
A
Habit is:
1) a person’s regular practice of responding,
2) to a particular kind or repeated situation,
3) with a specific type of conduct.
The evidence of habit or custom is Admissible, being used for its character purpose, to prove conduct on a specified occasion in conformity with the habit.
19
Q
When are Prior Similar Occurrences admissible?
A
Evidence of Prior occurrences is Inadmissible to prove negligence or propensity, but Admissible to prove Substantively similar circumstances to occurrence at issue in case and, (CENO)
- Cause of accident
- Existence of dangerous condition
- Notice/ knowledge
- Ownership.
20
Q
When are Similar Lawsuits admissible?
A
Evidence of Similar Lawsuits is Inadmissible to prove a predisposition to filing frivolous claims unless its against a vexatious litigant; but it may be Admissible to prove some other proposition such as a common plan or scheme
21
Q
When is evidence of Prior Similar Contracts admissible?
A
o Evidence of Prior similar contracts between the SAME parties is Admissible for a non-character purpose such as habit, custom, or common plan;
o Evidence of Prior similar contracts between OTHER parties may have character issues but some courts allow it in after focusing on the relevance
22
Q
When is evidence of Subsequent Accidents admissible?
A
Evidence of Subsequent accidents are only Admissible to prove:
1) Existence of a particular dangerous condition,
2) Cause of action in dispute
23
Q
When is evidence of Other Prior Accidents admissible?
A
o Evidence of Other prior accidents are Inadmissible to prove ultimate issue.
o It is Admissible to prove elements such as: (CEND)
- Cause of action in dispute
- Existence of a particular dangerous condition
- Notice to the D of the existence of the dangerous condition
- Degree of danger created by the condition
24
Q
When are Subsequent Precautions or Remedial Measures inadmissible/admissible?
A
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
25
When are Pleas and Related Statements inadmissible/admissible?
o Evidence of Withdrawn guilty pleas, offers to plead guilty, statements made under bona fide plea negotiations to police or prosecutors are Inadmissible as admissions in both civil and criminal proceedings.
o Nolo contendere pleas Admissible in civil cases if acts constituted a felony.
• (Inadmissible in civil suits if crime was misdemeanor or infraction)
• (Nolo admissible in criminal suits)
26
Offers of Compromise
Evidence of Offers to compromise, negotiations, to pay hospital/medical/funeral bills AND connected admissions of guilt = Inadmissible to prove liability for loss or damage, or for invalidity of the claim. (civil cases)
27
When is evidence of an Offer of Compromise admissible?
o Evidence is Admissible for other purposes, such as: (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
28
What happens if an accused offers to pay his victim?
That offer will be ADMISSIBLE as an admission in a CRIMINAL case.
29
Benevolent Gestures
Evidence of Statements, writings, and benevolent gestures expressing sympathy relating to the pain, suffering or death are inadmissible in civil, BUT admissions made in connection with expressions of sympathy = admissible.
30
Liability Insurance
o Evidence of Insurance, OR the absence of insurance is Inadmissible to prove neg or other wrongdoing.
o Admissible to prove: ( CABO )
• Control, Agency, Bias/Prejudice of Witness, Ownership
31
What is Hearsay?
Hearsay is an out of court statement used to prove the truth of the matter asserted and is generally Inadmissible.
32
What are the Non-Hearsay purposes?
NAPKINS & VAEL
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 business or place, circumstantially
7) To prove the declarant’s STATE of mind
8) To prove that Info requiring further investigation was available(neghire)
9) Verbal acts Doctrine
• Evidence is not intended for the truth of their content, but to 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.
10) To prove effect on listener or reader
33
Confrontation Clause
When the prosecution offers hearsay statements that constitute 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 traditional hearsay exception, the accused’s confrontation rights are violated and the statements are Inadmissible
UNLESS:
1) the out of court declarant is produced for cross-ex, or
2) that declarant is unavailable and the accused had a prior opportunity to cross-ex the declarant.
34
Party Opponent Admissions
o Admissions of a Party Opponent are admissible hearsay statements by a party that helps the other party’s case.
o The statements must be against a party’s interest but doesn’t need to be against interest at the time it was made.
35
Admission by Conduct
The conduct of a party can be offered whether or not it is assertive.
* If it is assertive, its 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.
36
Adoptive Admissions
If the declarant is a party themselves, and makes an admission, it will be Admissible against that party, whether or not the declarant is speaking on his own behalf or as someone’s representative, as long as the party has manifested an adoption or belief in its truth by words or conduct.
37
Authorized Admissions
The statement is Admissible if it is offered against an opposing party and was made by a person authorized to make a statement on the subject.
38
Vicarious ADmissions
When the liability of an employer is based on the liability of an employee (under the principle of respondeat superior), and the employee is the declarant, if the employee’s statement would be an admission by him if he were a party, then the statement is Admissible as a vicarious admission against the employer.
39
Co-Conspirator Declarations
o Statements of a participant in a conspiracy that were made before the party joined the conspiracy are Admissible as admissions against that party.
o The proponent must show that the declarant made the declaration (1) while participating in a conspiracy to commit a crime or a civil wrong (2) in furtherance of the conspiracy; and (3) either before or during the time the party opponent was participating in the conspiracy.
40
Judicial Admissions in Civil Cases
o Judicial admissions are found in pleadings and discovery responses, and are binding on both the parties and the fact finder.
o Stipulations as to facts operate as judicial admissions to bind the parties and fact finder.
41
Prior Consistent Statements
o 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 charge of fabrication bias.
o The consistent statement must have been made prior to any inconsistent statement alleged or reason for motive or bias.
o If PCS is otherwise admissible on the issue of witness credibility, the PCS is also Admissible to prove the truth of their conduct.
42
Prior Inconsistent Statements
o 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 offered in compliance of 770.
o 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)
43
Statements of Identification
Prior Statement of a Witness is Admissible for Identification (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 the witness’s memory,
(3) and evidence of 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.
44
Which Hearsay Exceptions require UNAVAILABILITY?
1) Former Testimony
2) Declarations against Interest
3) Declarations of Past Physical Condition
4) Declarations by Crime Victims (OJ Rule)
45
Hearsay Exception: Former Testimony
o 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.
o 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 examine the declarant with similar
46
Hearsay Exception: Declarations Against Interest
o For this statement to be Admissible, The proponent must show that the declarant is unavailable to testify and that it was against the declarant’s interest to have made the declaration.
o By showing 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
47
Hearsay Exception: Declarations of Past Physical Condition
Statements of PAST physical condition are Admissible when The declarant is unavailable and The past physical condition is at issue and its Only offered to prove the existence of a physical condition.
48
Hearsay Exception: Declarations by Crime Victims (OJ Rule)
Evidence of a crime victim’s SOM may be Admissible if: (6 reqs)
1) Victim is unavailable
2) Statement purports to narrate, describe or explain physical injury upon the victim
3) Statement is made around the time of threat/injury
4) Statement was in writing, or recorded or made to law enforcement or physician, nurse or paramedic
5) Statement made under circumstances indicating trustworthiness
6) Adequate notice was given to opposing party
49
Which Hearsay exceptions don't care about unavailability?
1) Present Recollection Refreshed
2) Past Recollection Recorded
3) Dying Declarations
4) Spontaneous Statements
5) Contemporaneous Statements
6) State of Mind Declarations
7) Declaration of PAST Physical Sensation
8) Business Records
9) Official Records
50
Hearsay Exception: Present Recollection Refreshed
Present Recollection Refreshed is not hearsay at all since evidence is not introduced; anything can be used to refresh the witness’s recollection; witness is asked to read it to themselves, then attorney asks if it refreshes their recollection (assuming that the recollection itself is admissible); if the witness answers that it does refresh their memory, then BEFORE the attorney can elicit the testimony, opposing counsel is entitled to se the writing or thing, and may introduce portions for cross ex
51
Hearsay Exception: Past Recollection Recorded
o For the Past Recollection Recorded hearsay exception, a witness will read it aloud into evidence; testimony of this type of prior statement is Admissible if its (A) regarding a matter the witness once knew about but does not remember, (B) made while fresh in the witness’s memory, (C) witness has to authenticate it as accurate.
o The writing itself is NOT received into evidence so as to not unduly impress the jury by the document’s existence.
o For it to fall under the Past Recollection Recorded exception, the statement must have been
1) Made at a time when the fact recorded in the writing actually occurred or was fresh in the witness’ memory;
2) Made either by the witness himself or under his direction, or by some other person for the purpose of recording the witness’ statement at the time it was made;
3) Offered after the witness testifies that the statement he made was a true statement of such facts and
4) Offered after the writing is authenticated as an accurate record of the statement.
52
Hearsay Exception: Dying Declarations
o Evidence of a statement made 1) by a dying person 2) concerning the cause and circumstances of their death 3) under a sense of impending death, is Admissible as a hearsay exception.
o Personal Knowledge Requirement (PKR).
53
Hearsay Exception: Spontaneous Statements
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. While time lapse does not eliminate the possibility that the statement is a spontaneous statement, the key is whether or not a person’s reflective powers have returned.
• Unlike the Federal Rules, California does not have an exception for a present sense impression-- a statement describing a statement while perceiving it or immediately after. While, under the Federal Rules, FACTS may have been sufficient to qualify the statement as a present sense impression, because a there is no such exception in California, the statement is not admissible on that ground.
54
Hearsay Exception: Contemporaneous Statements
The “contemporaneous statement” hearsay declaration says statements are Admissible when made by declarant, which explains, qualifies, or makes understandable their own conduct, made while engaging in the conduct.
• Unlike the Federal Rules, California does not have an exception for a present sense impression-- a statement describing a statement while perceiving it or immediately after. While, under the Federal Rules, FACTS may have been sufficient to qualify the statement as a present sense impression, because a there is no such exception in California, the statement is not admissible on that ground.
55
Hearsay Exception: State of Mind Declarations
o Statements are Admissible if offered to prove the declarant’s relevant then-existing SOM, emotion or physical sensation, if at issue
o Statements are Admissible when the statement of memory or a past mental or physical state is used to prove the previous mental or physical state only when at issue in the case
o Statements are Admissible when its statements of the declarant’s then existing physical sensation, including a statement of pain or bodily health. (Doc, my back hurts.)
56
Hearsay Exception: Declaration of PAST Physical Sensation
o Declarations of Past Physical Sensations are Inadmissible!
o CEC doesn’t permit statements of PAST physical condition, only THEN-EXISTING physical sensation under the SOM exception.
57
Hearsay Exception: Business Records
o 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.
o For the business record to be Admissible, 1) The writing must be made in the regular course of the business, 2) and be made at or near the time of the act, condition, or event recorded, 3) the custodian must testify to the record’s identity and its mode of preparation, 4) and the sources of information and method and time of preparation must indicate its trustworthiness.
• Only Opinions to readily observable acts, events, or conditions, contained in Business Records are Admissible.
58
Hearsay Exception: Official Records
To be Admissible, official records must be made within the scope of duty of the public employee.
* official records are self-authenticating to the identity and mode of preparation
* Only permissible lay opinion or opinion testimony contained in the Official Record is Admissible.
59
What happens when a statement in the business or official record is Testimonial?
For a statement in the business or official record to be considered testimonial:
* the record must be made to a law enforcement officer or by or to a law enforcement agent,
* the record describes a past fact related to criminal activity,
* the record is made for possible use at a later trial.
60
Hearsay Exception: Learned Treatises
o Hearsay exception for historical works, books of science or art, and published maps or charts, made by persons indifferent to the parties, Admissible when offered to prove facts of general notoriety and interest.
o Written work Inadmissible if the information is in a field subject to changes in knowledge, such as medicine.
61
Hearsay Exception: Commercial Lists
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.
62
Hearsay Exception: Judgements
o 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.
o Any final judgment of conviction is also admissible as a hearsay exception if it qualifies as an official record.
63
When does Authentication of Writings apply?
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.
64
Who can authenticate a document and how?
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.
• Ex: the parties may stipulate to authentication, or have a custodian of records from the police department authenticate it.
65
What does "self-authenticating" mean?
Presumed to be authentic, leaving a rebuttable presumption of authenticity.
66
Which types of documents are self-authenticating?
Only certified copies of judgments.
A Will is NOT self-authenticating
67
What is the process for when you have any writing?
You must discuss 3 subjects in this order:
1) Authentication
2) Second Evidence Rule
3) Hearsay
68
What is the Second Evidence Rule?
o The SER requires the content (not the conversation) of a writing – what it says – to be proved by the original or a copy of the writing, rather than testimony.
o Once a document or writing has been admitted into evidence, the SER no longer applies and the jury can examine the document
69
What is the "Completeness Doctrine"?
When part of a writing, document or conversation is received, and the remained or another part relates to the same subject, the opposing party has a right to introduce the remained or other part, under the completeness doctrine, even if the additional parts received would otherwise violate the hearsay rule.
70
What people are qualified/competent to be a witness?
All persons, irrespective of age, are qualified to be witnesses, unless disqualified by statute.
71
What are the THREE requirements of witness competency?
(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.
72
Is the witnesses credibility relevant?
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.
73
In what ways may a witness be impeached?
1. Prior Inconsistent Statements (PIS)
2. Contradiction
3. Prior Bad Acts
4. Convictions
5. Opinion or Reputation
6. Demonstrating Impairment
7. Evidence of Bias or Interest
74
W Impeach: Prior Inconsistent Statements
o PIS = 1) always Admissible to impeach AND 2) always Admissible for truth
o 2 Limitations on using extrinsic evidence to prove a PIS. 1) the examiner must give the witness the opportunity to explain or deny the inconsistent statement, or 2) not excuse the witness from testifying, before introducing extrinsic evidence of the statement.
o Only the inconsistent statements are admissible, accompanying statements are not.
**Rehabilitating a Witness with Prior Consistent Statements**:
PCS are made before the incident giving rise to the challenge to 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.
75
W Impeach: Contradiction
Impeachment by contradiction uses evidence of the nonexistence of the fact testified to by the witness, often testified to by others.
76
W Impeach: Prior Bad Acts in Civil and Criminal?
Civil:
• Specific instances of a prior bad acts and misdemeanor convictions in CA civil case is Inadmissible to attack or support the credibility of a witness. (other than evidence of past felony convictions, which are Admissible )
• The specific instances may not be proved by extrinsic evidence.
Criminal:
• Prop 8 has repealed the ban in criminal cases, allows all relevant evidence in such cases,
• Certain prior bad acts, whether felonies, misdemeanors, or unconvicted bad acts and prior good acts, that involve moral turpitude are Admissible.
77
W Impeach: Convictions
o 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.
o The criminal case convictions must involve moral turpitude.
78
W Impeach: Opinion or Reputation in Civil and Criminal
o 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.
o 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.
79
W Impeach: Demonstrating Impairment
o The central question is whether something impaired the witness’ capacity to perceive, recall or relate at the relevant time.
o A witness can be impeached by evidence of drugs, alcohol, metal disorders, evidence of poor eyesight, poor lighting conditions, or sound conditions.
80
W Impeach: Evidence of Bias or Interest
Witness can be impeached with ev of their bias or motive against one party, or incentive to benefit from their testimony
81
Impeachment of a hearsay Declarant
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 as substantive evidence.
82
When does Prop 8 apply and what is admissible?
Prop 8 only applies to Witness impeachment in criminal cases.
• Illegally obtained confessions to impeach are Admissible if relevant
• Evidence of Prior bad acts are Admissible if relevant.
83
What is Opinion Testimony?
An opinion is any non-exact assessment as the result of a deduction from an observation that cannot be independently verified by a repeatable observation.
84
Can Lay people give opinions?
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.
85
How does Expert Opinion work?
o 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.
o An expert MAY give opinions on ultimate factual issues to be decided upon by 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.
86
Expert Opinion and the Kelly Test
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.”
87
Expert Opinion and the Reasonable Reliance Test
This reasonable reliance test—that the expert must rely on material that experts in the relevant field reasonably rely on in reaching opinions—is the one that courts will use when the scientific methodology or the opinion are predicated on a well-known or accepted technique.
88
What are the KINDS of privileges?
1) Exempts certain persons from their duty to give evidence (from even being called a witness)
2) Exempts a witness from providing certain kinds or categories of testimony
3) Protects information communicated in confidence in the context of an enumerated, often professional relationship
89
Who can waive a privilege?
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.
90
What are the types of waivers?
1. Negligent
2. Conscious
3. Voluntary Disclosure to Another
4. By Consent
5. By one of Several Joint Holders
6. By Contract
7. By Refreshing Recollection
91
Does the Code accept the Eavesdropper rule?
No. The code rejects it. The major issue is whether the holder is aware that the means used for transmitting the communication discloses it to third persons who are not authorized to be present. This destroys the privilege.
Doesn't count if the person knows it will be eavesdropped on.
92
Does disclosing the fact of the communication waive the content of the communication?
No.
93
If two or more persons are joint holders of the privilege, does a waiver by one waie the privilege of the others?
No.
94
Who must establish the privileged nature of the matter in order to claim privilege?
The objecting party.
95
What is the level of proof required for someone to object under privilege?
Preponderance of the evidence.
96
Which communications are presumed to be confidential?
Protected communications
97
What is the "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.
98
What is the Attorney-Client Privilege?
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.
99
What is required to form an Attorney-Client Privilege?
Communication must be:
1) Between a Client and Attorney
2) Made in the Course of the Attorney/Client relationship (while in the course of retaining, securing, obtaining, or receiving legal services or advice)
3) Transmitted in confidence
100
Who is an "attorney"?
An attorney, for the purpose of determining if a communication is protected by the attorney-client privilege, as, “a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation.”
101
What are the exceptions to the Attorney-Client Privilege?
No Attorney/Client Privilege exists when/for:
1) Crime-fraud only
2) Malpractice suits
3) Discussing the intentions and validity of a will
4) Attorney reasonably believes that disclosure is necessary to present a criminal act that the lawyer reasonably believes is likely to result in death, or substantial bodily harm to an individual
5) Tangible items
102
Are Questions hearsay?
No. Questions are not an assertion nor intended to substitute for one.
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What is the Psychotherapist-Patient Privilege?
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.
It is construed LIBERALLY in favor of the patient.
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What is required to form a Psychotherapist-Patient Privilege?
Communication must be:
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
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What does the Psychotherapist-Patient privilege include?
Privilege includes the fact of the consultation and the patients identity, the diagnosis mad, and advice given.
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What are the exceptions to the Pschotherapist-Patient privilege?
1) When placed at issue
2) Emotional Distress
3) Crime-Tort
4) Breach of Duty causes of action
5) Establishing competency
6) Determining sanity
Exceptions are construed NARROWLY
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What is the Physician-Patient Privilege?
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
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What is required to form a Physician-Patient Privilege?
Communications must be:
1) Comm between patient and physician in the course of the physician/client relationship
2) Communication consisting of info transmitted between patient and physician
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
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What are the exceptions to the Physician-Patient Privilege?
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
o Breach of duty causes of action
o Establishing competence
o Contracts
o Payments of fees
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What is the Marital Communications Privilege?
o As per the Marital Communications Privilege, A spouse, whether he or she is a party, has a privilege to refuse to disclose, and to prevent others from disclosing any communication that was made in confidence between that person and his or her spouse.
o The privilege applies to all communications between spouses, made during the marriage, and made in confidence.
o The privilege may still be claimed even after the marriage ends, but only for communications made during the marriage
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What are exceptions to the Marital Communications Privilege?
o Crime Fraud (enable/aid)
o Commitment/Guardianship/Conservatorship Proceedings
o Competency Proceedings
o Dissolution Proceedings; Other Litigation
o Crimes against Other Spouse or Child
o Juvenile Court Proceedings – Custody of Children
o Criminal Proceeding – Communication offered by Defendant-Spouse
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What are Spousal Privileges?
A spouse has two rights:
1) A married person has a privilege not to be called as a witness by an adverse party when the other spouse is a party, and
2) A married person has a privilege not to testify against a spouse in any proceeding, whether or not the other spouse is a party
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Can one spouse's waiver waive the other spouse's privilege?
No. A waiver of one spousal privilege is not a waiver of the other spousal privilege nor the marital communications priv.
Likewise, testifying on behalf of spouse will waive the privilege to not testify against the spouse
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When does the Spousal Privilege end?
Privilege may only be claimed during a valid marriage, by the testifying spouse, and this privilege ends when the spouses are no longer married.
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What are exceptions to the Spousal Privilege?
o Proceedings between Spouses
o Commitment/Competency proceeding
o Custody proceeding
o Crimes against spouse or children
o Criminal proceeding when charged with bigamy
o Proceeding involving a premarital crime act by one of the spouses regarding knowledge acquired before marriage.
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What is the Clergy-Penitent Privilege?
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
Communication must be made in confide in the presence of no 3rd person to a member of the clergy who has a duty to keep such communication a secret
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What is Judicial notice?
When a judge takes judicial notice of a fact, it conclusively establishes that fact and no further evidence is taken regarding that fact.
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When must a court take judicial notice of facts that are not reasonably subject to dispute?
When the facts are:
1. Common knowledge within the territorial Jx of the court, AND
2. Readily ascertained by resort to sources of reasonably indisputable accuracy.
