W & M Rule Statements Flashcards
Admissibility of Evidence
In order to be admissible all evidence must be relevant and the probative value must not be outweighed by the danger of unfair prejudice.
Relevance
Evidence is relevant if it is:
(1) Probative; and
(2) Material
Relevance - Probative
if the evidence has any tendency to make a fact more or less probable than it would be without the evidence (i.e., probative)
Relevance - Material
The fact is of the consequence in determining the action
Authentication
The proponent of evidence must lay the foundation prior to introducing the evidence.
Authentication of Tangible Evidence
To authenticate an item, the proponent must produce sufficient evidence to support a finding that the thing is what its proponent claims it is. This is a lesser standard than a preponderance of the evidence.
Authentication - Documentary Evidence
Commonly authenticated by stipulation, testimony of an eyewitness, or handwriting verification.
Best Evidence Rule
aka original document rule.
Requirement that the original document or reliable duplicate be produced to prove the contents of a writing, recording, or photograph, including electronic documents, x-rays, and videos.
When does the best evidence rule apply?
Only applies when the contents of the document are at issue or a witness is relying on the contents of the document when testifying.
Attorney-Client Privilege - Evidentiary
If a communication is covered by attorney-client privilege, an attorney has an ethical obligation to assert the privilege and prevent the disclosure.
What does the attorney-client privilege cover?
The attorney-client privilege covers:
(1) A communication
(2) Made between privileged persons,
(3) In confidence,
(4) For the purpose of obtaining or providing legal assistance
When is the attorney-client privilege waived?
-Privilege is waived where the communication takes place under circumstances such that persons outside the privilege can overhear what is said.
***This goes against the “in confidence” element
A Private Investigator may be kept confidential when…
The PI is hired by the client’s lawyer – the PI is considered part of the legal team and potentially protected from disclosure.
Work-Product Doctrine
Ordinary work product is not subject to discovery unless the party seeking disclosure demonstrates:
(1) a substantial need for the information; AND
(2) they cannot obtain the information by any other means without undue hardship.
What does the work-product doctrine apply to?
(1) Documents
(2) Prepared by a lawyer or lawyer’s team
(3) In anticipation of litigation
When might a party be able to obtain evidence that would otherwise be protected under the work-product dcotrine?
If equivalent evidence cannot be obtained by other means the undue hardship exception will apply and the party with the evidence will not be able to withhold production of the photograph.
AKA Undue hardship exception**
What information is always protected from disclosure under the work-product doctrine?
The mental impressions, conclusions, and trial tactics of a lawyer are almost always protected from discovery, regardless of another person’s need for the information or inability to otherwise obtain it.
Physician-Patient Privilege protects….
Protects statements made my a patient to a physician, so long as the communications were made for the purpose of obtaining medical treatment.
Who holds the privilege in the physician-patient relationship?
The patient.
The physician-patient privilege does not exist when:
(1) The information was acquired for reasons other than treatment,
(2) The patient’s physical condition is at issue,
(3) The communication was made as part of the commission of a crime or tort;
(4) A dispute exists between physician and the patient,
(5) The patient contractually agreed to waive privilege, OR
6) A case is brought in federal court and state law does not apply.
In VA, the physician-patient privilege is only available in what type of cases?
Civil proceedings.
When is the privilege not available in VA?
Even in a civil proceeding, the privilege is not available unless the physical or mental condition of the patient is at issue.
Spousal Privilege is compromised of what distinct privileges
(1) Spousal Immunity; and
(2)Confidential Marital Communications
Spousal Immunity - general rule
the spouse of a criminal D may not be called as a witness by prosecution nor may a married person be compelled to testify against his spouse in any criminal proceeding, including a grand jury proceeding, regardless of who the defendant is.
Under spousal immunity, in a criminal case, when might a spouse be compelled to testify?
Spouse may be compelled to testify on behalf of the other spouse
Under spousal immunity, in a criminal case, when will a spouse be compelled to testify against the other spouse?
(1) An offense committed by one spouse against the person or property of the other spouse or against the minor child;
(2) The forgery by one spouse of the other spouse’s signature
(3)Sexual assault, incest, or abuse of a child
May a spouse choose to testify against a defendant spouse?
Yes - a spouse may voluntarily choose to testify against a defendant spouse
May a defendant spouse prohibit their spouse from taking the stand?
No - defendant spouse cannot prohibit their spouse from taking the stand.
**Testifying spouses may not testify about privileged communications unless an exception applies.
Confidential Marital Communications - general Rule
A person may refuse to disclose, and may prevent anyone else from disclosing, any confidential communication between himself and his spouse during their marriage, regardless of whether he is married to that spouse at the time he objects to disclosure.
