Relevance

Question 1

What is the test for whether evidence is relevant?

Answer 1

Rule 401. Test for Relevant Evidence

Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.

Question 2

When is relevant evidence inadmissible?

Answer 2

Relevant evidence is inadmissible if:

Rule 402. prohibited by a federal statute; FRE; or other rules prescribed by the Supreme Court.

Rule 403. its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Question 3

What are Mauet’s three steps of analysis for determing whether evidence meets the standard for general relevance?

Answer 3

Three-part Analysis:

1. What’s in issue?: “Of consequence” - What are the required elements to prove the claim, counterclaim, or defense?
2. What’s it prove?: How does the evidence have “any tendency” to make it “more or less probable” that the claim is true?
3. Does it meet the 403 balancing test?: Does the probative value “substantially outweigh” the potential for unfair prejudice, confusion, repetition, misleading, delay, piling on, wasting time, etc.?

Question 4

What three methods may be used to prove character?

Answer 4

Rule 405. Methods of Proving Character

Reputation, opinion, and specific instances of conduct.

Question 5

When is evidence about crimes or other acts prohibited and when is it permitted? Does the defendant have to have been convicted of the other crime or act?

Answer 5

Rule 404. Character Evidence; Crimes or Other Acts

• not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.
• admissible for proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

Question 6

What does the term conditional relevance mean?

Answer 6

A matter has conditional relevance when it is only relevant if another thing is proven.

• If the other thing isn’t proven, conditionally relevant evidence will be naturally disregarded by jury because it won’t have any significance on its own.

Question 7

1. What are the three general categories (rules) for when character trait evidence can be used?

Answer 7

1. Essential Element Rule (Rule 405)
2. Circumstantial Proof of Conduct Rule (Rule 404(a))
3. Cross Examination Rule (Michaelson)

Question 8

How do the rules for character and other crimes in Arizona differ from the FRE?

Answer 8

Under Arizona rules:

1. Civil defendants can also introduce evidence of a pertinent trait of character.
2. Evidence of the abberant sexual propensity of the accused or a civil defendant can be introduced and rebutted. Balancing factors included in statute.

Question 9

What is the Essential Element rule for character trait evidence, what kinds of cases does it apply to, what is the procedure for introducing it, and what proofs are allowed?

Answer 9

The Essential Element rule is used when proving a person’s character trait is an essential part of a claim, e.g., proving in a custody that a parent is unfit.

• applies to civil and criminal cases
• either side can introduce
• general reputation, personal opinion, and specific instances of conduct are allowed as proof

Question 10

What is the Cross Examination rule for character trait evidence under Michaelson?

Answer 10

When a defendant introduces character witness evidence about the character of the defendant, prosecution can rebut with, “did you hear that …” to bring out specific instances of conduct that disprove the positive character trait claimed by the defense.

• P needs to ask in the form of “Did you hear that D was convicted of …?”
• P has to accept the answer the witness gives.
• Some jurisdictions also allow arrest information, which is usually not allowed.
• Must be true, relevant to claimed character, and timing must be in conformance with Rule 403.Some jurisdictions even allow arrest info
  Good faith rule
  can’t make up things about D
  must be relevant to claimed character

Question 11

What is the Circumstantial Proof of Conduct rule for character trait evidence, what kinds of cases does it apply to, what is the procedure for introducing it, what proofs are allowed, and what are the exceptions?

Answer 11

Character trait evidence can be introduced as circumstantial proof that a person acted consistently with his character at the time in issue in the case.

• criminal only, and can be about defendant or victim
• defendant initiates and prosecution can only rebut
• general reputation and personal opinion are allowed as proof, but NOT specific instances of conduct
• EXCEPTION: in homicide self-defense claims, prosecution can introduce character trait evidence about dead victim
• EXCEPTION: Rule 404(a) changed so that now if defendant attacks a victim’s character traits, prosecution can attack those same traits in the defendant.
  
  • NOTE: AZ does not follow this new rule.

Question 12

What can evidence of a person’s habit be used for? Do you need corroboration or an eye witness?

Answer 12

Rule 406. Habit; Routine Practice

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. Corroboration or eye witness not needed.

Question 13

When is evidence about a victim’s sexual behavior or predisposition prohibited and what are the exceptions? How does Arizona differ?

Answer 13

Rule 412. The Victim’s Sexual Behavior or Predisposition

Prohibited: to prove that a victim engaged in other sexual behavior; or to prove a victim’s sexual predisposition.

Allowed:

Criminal Cases, to prove that

• someone other than the defendant was the source of semen, injury, or other physical evidence;
• to prove consent with respect to D
• if exclusion would violate the defendant’s constitutional rights.

Civil Cases, if it passes 403 balancing. The court may admit evidence of a victim’s reputation only if the victim has placed it in controversy.

Arizona follows Pope, which held that only the defendant’s sexual history is relevant.

Question 14

What is the rule in Arizona about a victim’s sexual history under Pope?

Answer 14

Only the defendant’s sexual history is relevant. The victim’s history is irrelevant.

Note: it is not clear whether Pope applies to civil cases.

Question 15

When is evidence of a defendant’s similar crimes admissible in a sexual assault or child molestation case? When does the prosecutor’s/plaintiff’s intent to use this evidence have to be disclosed to the defendant?

Answer 15

Rule 413. Similar Crimes in Sexual-Assault Cases

• criminal and civil cases
• evidence of any other sexual assault is admissible
• intent to use must be disclosed to D at least 15 days before trial (or later with good cause)

Question 16

1. What are remedial measures inadmissible to prove?
2. How does the federal rule for subsequent remedial measures differ from the AZ rule?
3. What is the exception to inadmissibility of subsequent remedial measures?

Answer 16

Rule 407. Subsequent Remedial Measures

1. Inadmissible to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction.
2. Federal: remedial measures made after an injury are inadmissible. (pro consumer)

AZ: remedial measures made after product’s first sale are inadmissible. (pro business)

3. Exception: admissible if it is probative of an actual disputed issue other than negligence or fault, such as ownership or control, infeasibility of safer design, claims product was “highest quality” or “best possible”.

Question 17

1. What are the prohibited uses of compromise offers and statements made in negotiations?
2. What are the exceptions in the rule?
3. What are some common admissible uses of compromise/negotiations evidence?

Answer 17

1. Prohibited uses:

• to prove or disprove the validity or amount of a disputed claim
  
  • there must be a dispute about either liability or damages for 408 to apply
• to impeach by a prior inconsistent statement or a contradiction
• EXCEPT when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.

3. Admissible for any relevant purpose other than to prove liability for, or invalidity of, a disputed claim or its amount. For example, showing bias, interest, or motive of a former party who settled but serves as a witness for a remaining party; proving deceit or trickery.

Question 18

When is evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses inadmissible? When is it allowed?

Answer 18

Inadmissible: to prove liability for injury

Admissible: to show witness bias, motive, etc.

Question 19

1. What are the prohibited uses of plea discussion evidence against a defendant?
2. What kinds of cases does the rule apply to (civil/criminal)?
3. What are the exceptions?

Answer 19

Rule 410.

1. Almost everything that is said during the plea discussions is inadmissible, except a statement that results in a guilty plea that is not later withdrawn.
2. The rule applies to both civil and criminal cases.
3. Exceptions:

• if another statement made during plea discussions or proceedings has been introduced and the two statements should be considered together
• in a criminal proceeding for perjury or false statement, if the D made the statement under oath, on the record, and with counsel present.

Question 20

When is evidence that a person was or was not insured against liability inadmissible and when is it admissible?

Answer 20

Inadmissible: to prove whether the person acted negligently or otherwise wrongfully.

Admissible: to prove a witness’ bias or prejudice or proving agency, ownership, or control.

Question 21

In a federal diversity case, which law applies (federal or state) regarding privileges (atty-client, spousal, etc.)?

Answer 21

Rule 501 applies the Erie Doctrine to avoid forum shopping:

• Federal questions = federal law (common law, unless there is a Qnl provision, federal statute, or SCOTUS rule)
• Federal criminal cases = federal law
• Federal diversity cases = state law (older states tend to use common law, newer states have statutes)
• State cases = state law

Question 22

What are the five things you need to determine when you have a question of privilege?

Answer 22

1. Jx: state or federal?
2. Rule: statute or common law?
3. Who is the holder of the privilege (who is benefitted by it)?
   
   • only the holder can assert or waive the privilege
4. Do waiver or non-applicability rules apply? (Is breaching the privilege necessary to resolve the case?)
5. Has the privilege terminated?

Question 23

For spousal bar:

• what time frame does it cover?
• when does it begin and when does it terminate, if ever?
• who holds the privilege? (Fed and AZ)
• when is it inapplicable?

Answer 23

Spousal Bar Privilege:

• usually applies only to the time frame of the marriage
• created upon lawful marriage, terminates when the marriage terminates
• Holder:
  
  • Federal: the testifying spouse is the holder of the privilege. Trammel.
  • AZ: party spouse is holder
• inapplicable in criminal cases between spouses (e.g. assault), divorce or child custody proceedings, joint crimes.

Note: spousal bar should be considered before trying interspousal communication privilege.

Question 24

For interspousal communications:

• what time frame does it cover?
• when does it terminate, if ever?
• who holds the privilege?
• when is it inapplicable?

Answer 24

Interspousal Communication Privilege:

• covers confidential communications made during the time frame of the marriage.
• does not terminate when marriage terminates
• holder rules vary:
  
  • majority: each spouse is the holder as to his or her communications to the other
  • AZ and minority: both spouses are holders as to all communications by each spouse to the other. If either asserts the privilege, it can’t be waived.
• spouses have to make it clear that they intended the communications to be confidential - if anyone else heard it or if they told anyone else about it, it’s not privileged.
• observations are not protected!

Question 25

How do the spousal bar privilege rules differ among the federal common law, ARS 12-2231, and ARS 13-4062?

Answer 25

Federal (Trammel 1980):

• applies to criminal cases only
• witness-spouse alone holds privilege

ARS 12-2231

• applies to civil and criminal cases
• party-spouse holds the privilege

ARS 13-4062

• applies to criminal cases
• party-spouse holds the privilege

Question 26

With Attorney-Client Privilege in general:

1. Who is the holder?
2. Who can assert the privilege?
3. Who can waive the privilege?
4. When does the privilege terminate?
5. Who does the term “attorney” apply to?

Answer 26

1. Clients and prospective clients hold the privilege.
2. Clients, and attorneys on their client’s behalf, can assert the privilege.
3. Only the client can waive the privilege. If the client is a corporation, only board of directors or high-level managers can waive it.
4. The privilege never terminates - if the client dies, his/her estate can assert the privilege, even in a criminal case.
5. The term “attorney” applies to
   
   • attorney and office staff (clerks, paralegals, secretaries, other lawyers in firm)
   • outside parties covered if
     
     • necessary for lawyer to communicate with client
     • hired specifically for this litigation
     • agrees to keep communications confidential as part of employment agreement

Question 27

1. What constitutes a “confidential communication” for attorney-client privilege?
2. What qualifies as a confidential communication within a corporation?

Answer 27

1. Elements of a confidential communication:

• an oral statement, written communication, or sometimes assertive conduct;
• attorney and client take reasonable precautions to ensure privacy thereof;
• attorney and client take reasonable steps to maintain the confidentiality of the communication after it occurs.

Things to remember:

• If a communication is not privileged when made, you can’t make it so by sending to a lawyer.
• The attorney must be acting in the capacity of a lawyer giving legal advice for the privilege to attach.
  
  • when corporate counsel is acting in non-legal roles, those communications might not be privileged.

2. In a corporation:

• Communication from a corporate officer to help counsel in representing the corporation is privileged.
  
  • reasonable steps must be taken to maintain confidentiality (e.g., separate files and access restricted to corporate officers).
• Written communications related to routine internal business matters or fact-finding that are generated by lower level employees and eventually sent to counsel are NOT confidential communications.

Question 28

In a corporation, who is included in the definition of a “client” with respect to attorney-client privilege?

• Federal
• AZ
• Most states

Answer 28

Federal and AZ: All employees of the corporation, regardless of their level. (Upjohn)

Most states: only the “control group,” of high level officers with decision-making power are “clients.”

Question 29

Under what 3 conditions does a disclosure made in a federal or state proceeding waive privilege for undisclosed communication or information? (Atty-client and work product)

Answer 29

Rule 502(a). The waiver extends to undisclosed communication or information only if:

1. the waiver is intentional.
2. the disclosed and undisclosed communications or information concern the same subject matter.
3. they ought in fairness to be considered together.

Question 30

Under what 3 conditions do disclosures made in a federal proceeding or to a federal office or agency NOT operate as a waiver?

Answer 30

Rule 502(b): Inadvertent Disclosure of Privileged Information or Communication.

1. The disclosure is inadvertent.
2. The holder of the privilege took reasonable steps to prevent disclosure.
3. The holder promptly took reasonable steps to rectify the error.

Question 31

For each of the following, say how it impacts the attorney-client privilege and waiver of that privilege:

502(c). Effect of a disclosure made in a state proceeding on the status of the privilege in federal proceedings or other state proceedings.

502(d). Effect of a court order (saying that privilege is not waived by disclosure) on parties and non-parties in other federal or state proceedings.

502(e). A party agreement’s effect on non-parties.

Answer 31

Rule 502(c)-(e). Limiting Waivers of Attorney-Client Privilege.

502(c): A disclosure in a state proceeding does not operate as a waiver in a federal proceeding or as a waiver in a state proceeding if contrary to that state’s law.

502(d): A federal court can order that the privilege is not waived by disclosure and it will be binding on parties and non-parties in other federal or state proceedings.

502(e): An agreement on disclosure is binding only to the parties to the agreement.

Question 32

1. What is the rule regarding doctor-patient privilege and does it apply to civil/criminal? (Federal, AZ, other states)
2. What is the effect of a lawsuit that puts a medical claim at issue?

Answer 32

1. Federal: There is no doctor-patient privilege except for psychiatrists, psychologists, and licensed social workers.

AZ (other states similar):

• civil and criminal, covers communication and information related to diagnosis and treatment.
  
  • Note: court-ordered examinations not protected.
• lots of variation among states in breadth of protection.
• HIPPA covers records.

2. If a medical claim is part of a case, it operates as a waiver of information pertinent to the claim.