Writings and other Physical & Judicial NoticeEvidence, Privileges

Question 1

Ancient documents.

Answer 1

If document is (Federal 20, California 30) years old or more, does not on its face present irregularities (e.g., erasures), and was found in a place of natural custody (i.e., where you would expect such documents to be found),
authenticity is established.

Question 2

Self-authenticating writings.

Answer 2

For certain writings, authentication is unnecessary.
These include (Federal and California) certified copies of public documents (deeds), acknowledged documents (i.e., documents where the original signature is attested
before a notary to be valid), official publications (government pamphlets), newspapers, periodicals, (Federal only) business records and trade inscriptions.

Question 3

Best Evidence Rule (Called “Secondary Evidence Rule” in California)

Answer 3

Exempt from Prop. 8 in California. This means that, even in a criminal case, the Secondary Evidence Rule applies. This rule applies only where evidence is offered to prove the contents of a writing (defined to include any tangible collection of data). The rule requires proof of contents with original, but with many exceptions.

Question 4

Other than the original, what tangible evidence is admissible to prove contents of a writing?

Answer 4

Federal: Duplicates usually also admissible. “Duplicate” = a copy of original produced by same impression that produced the original (e.g., a carbon copy) or by a machine (e.g., photocopier, camera). Handwritten copy is not a duplicate.

California: Admits duplicates and other written evidence of contents of original, such as handwritten notes.

Question 5

When is testimony admissible to prove contents of a writing?

Answer 5

Federal and California: Testimony regarding contents of writing may be admissible where original lost or destroyed, unless bad faith by proponent of testimony.

Question 6

Privileges

Answer 6

California: Most privilege law is exempt from coverage of Truth in Evidence Amendment to California Constitution. This means that, even in a criminal case, the usual rules of privilege apply.

Federal: In a civil suit brought in federal court under diversity jurisdiction, state privilege law applies.

Question 7

Attorney-Client Privilege. Federal and California:

Answer 7

A communication between attorney and client or their representatives intended by client to be confidential and made to facilitate rendition of professional legal services is privileged unless waived by the client.

Federal: Privilege survives death of client.

California: Privilege ends once estate of dead client is distributed and executor of estate is discharged.

Question 8

When is a communication from a corporation employee to the corporation’s attorney privileged?

Answer 8

Federal: privilege applies to communications from employees/agents if they were authorized by the corporation to make the communication to the lawyer on behalf of the corporation.

California: privilege applies to communications from employee/agent if she is the natural person to speak to the lawyer on behalf of the corporation in the matter
(e.g., the corporation’s in-house counsel or CEO), or employee/agent did something for which the corporation may be held liable and the corporation instructed her to tell its lawyer what happened. As applied, there is no significant difference in the scope of these standards.

Question 9

Exceptions. Federal and California: AC Privilege does not apply where:

Answer 9

1. professional services were sought to further crime or fraud, or
2. two or more parties consult an attorney on a matter of common interest and the communication is offered by one of these parties against another, or
3. communication relates to alleged breach of duty between lawyer and client.

Additional exception in California only:

• privilege does not apply where lawyer reasonably believes disclosure of communication is necessary to prevent crime that is likely to result in death or substantial bodily harm.

Question 10

Doctor-Patient and Psychotherapist-Patient Privileges.

Answer 10

Federal: There is a psychotherapist-patient privilege but no doctor-patient privilege. (But remember, sometimes MBE questions assume existence of Doctor-Patient Privilege.)

California: Both privileges exist.

Question 11

Doctor-Patient and Psychotherapist-Patient Privileges - Exceptions. Federal and California exceptions for both privileges:

Answer 11

1. where the patient puts his physical or mental condition in issue, as in a personal injury suit,
2. where professional services were sought to aid in crime or fraud or to escape capture after a crime or tort,
3. in case alleging breach of duty between patient and doctor or psychotherapist, as in a malpractice action.

California only:

1. psychotherapist privilege does not apply if the psychotherapist has reasonable cause to believe that the patient is a danger to himself or others, and that disclosure is necessary to end the danger,
2. doctor-patient privilege does not apply in criminal cases or to information that doctor is required to report to a public office (e.g., gun-shot wounds and some communicable diseases).

Question 12

Spousal Privileges

Answer 12

1. Spousal testimonial privilege permits witness to refuse to testify against his/her spouse as to anything. Federal: applies only in criminal cases. California: applies in civil and criminal cases and spouse of party is privileged not even to be called to witness stand.
2. Federal and California: Spousal confidential communication privilege may apply in any case and protects confidential spousal communications during marriage.

Question 13

Other California Privileges

Answer 13

California also recognizes

1. privilege for confidential communications between a counselor and a victim of sexual assault or domestic violence,
2. privilege for penitential communications between penitent and clergy, and
3. immunity from contempt of court for news reporter who refuses to disclose sources.

Question 14

Procedure for taking Judicial Notice.

Answer 14

1. Federal and California:
   
   • Party must request judicial notice to compel judicial notice and, if not requested, court has discretion to take judicial notice.
   • California exception:
     
     • whether requested or not, court must take judicial notice of matters generally known within jurisdiction.
2. Federal:
   
   • If court takes judicial notice in civil case, court instructs jury that it must accept judicially noticed fact. In criminal case, court instructs jury it may accept judicially noticed fact, but is not required to do so.
   • California: Court instructs jury that it must accept judicially noticed fact in both civil and criminal cases.