Evidence Flashcards
(143 cards)
1
Q
When do the FRE not apply?
A
- Privileges
- Preliminary fact determinations by judge
- Grand jury proceedings
- Sentencing
- Extradition
- Bail
- Probation
- Issuance of arrest or search warrant
2
Q
When is evidence relevant?
A
- Material: trying to prove a fact at issue in the case, and
- Probative: has any tendency to prove or disprove that fact
3
Q
When may relevant evidence be kept out court?
A
- Kept out by evidence rule
- Judge excludes under Rule 403, or
- Public policy considerations
4
Q
Rule 403
A
Trial judge may exclude relevant if its probative value is substantially outweighed by:
1. Unfair prejudice
2. Confusion of issues
3. Mislead jury
4. Cause undue delay
5. Waste time
6. Be needlessly cumulative
5
Q
Is evidence of prior similar occurrences admissible?
A
- Evidence involving a time, place, or person not connected to present case generally inadmissible
- Example: P’s other lawsuits or accidents inadmissible to show that P is accident-prone or litigious
6
Q
When are prior similar occurrences admissible?
A
- Previous similar false claims to prove present claim is fault
- Previous injuries to same body part to prove present claim is false
- Prior accidents (or absence of) under substantially similar circumstances to prove existence of dangerous condition, that condition caused injury, or that D had notice
- Show intent
- Salse of comparable property to establish value (not mere offers)
- Rebut claim of admissibility
- Establish causation
7
Q
What is character evidence?
A
Proof of a person’s general propensity or disposition
8
Q
What are the types of character evidence?
A
- Opinion: testimony of someone who knows the person
- Reputation: testimony of someone familiar with person’s reputation in the community
- Specific acts: evidence of prior crimes or conduct
9
Q
Is character evidence admissible?
A
Inadmissible as propensity evidence of how a person probably acted during the events of the case
10
Q
Criminal case
May a criminal D bring in character evidence of themselves?
A
- May bring in opinion or reputation evidence of their own good character for a pertinent trait
- Prosecution may then rebut with own opinion or reputation evidence or cross-examine with specific acts to prove character witness’s lack of knowledge
- “Have you heard,” “did you know” only, cannot introduce extrinsic evidence to prove specific acts
11
Q
Criminal case
May a criminal D bring in evidence of the victim being the aggressor?
A
- Only permitted in homicide self-defense cases
- Prosecution may then introduce any character evidence of victim’s peacefulness
11
Q
Criminal case
May a criminal D bring in character evidence of victim?
A
- May bring in opinion or reputation evidence of victim’s character for a relevant trait
- Prosecution may then introduce opinion or reputation evidence of victim’s good character, or D’s bad character, for the same trait
12
Q
Criminal case
Is evidence of victim’s past sexual behavior admissible in criminal sexual assault cases?
A
Generally inadmissible
13
Q
Criminal case
When may criminal D introduce evidence of sexual assault victim’s past sexual behavior?
A
- Show that injury or physical evidence came from a different source
- May introduce specific instances of sexual conduct between victim and D to show consent
14
Q
Criminal case
What evidence may the prosecution introduce in a criminal sexual assault case?
A
- May introduce specific instances of prior sexual conduct between victim and D for any reason
- May introduce specific instances of allegations of D’s prior sexual assault assault or child molestation - must disclose to D 15 days before trial
15
Q
Criminal and civil cases
May the prosecution or P introduce evidence of D’s specific bad acts or crimes?
A
Yes, if used to show independently relevant purpose:
* Motive
* Intent
* Identity
* Common scheme or plan
16
Q
Criminal and civil cases
What must the prosecution or P do to introduce evidence of D’s specific past bad acts or crimes?
A
- Evidence must be sufficient such that a reasonable jury could conclude D committed the act or crime
- Criminal cases only: prosecution must provide reasonable notice that intends to use this evidence in writing before trial
17
Q
Civil case
When is character evidence generally admissible?
A
- All types of character evidence is admissible when character trait is directly at issue
- Usually found in defamation, negligent hiring or entrustment, and child custody cases
18
Q
Civil case
Is evidence of a sexual assault victim’s past sexual behavior admissible?
A
- Admissible if probative value substantially outweighs risk of unfair prejudice
- Either party may introduce specific instances of allegations of prior sexual assault assault or child molestation, must disclose to opposing party 15 days before trial
19
Q
Is bolstering a witness permissible?
A
- No, generally prohibited
- Exception: may introduce evidence that sexual assault victim made timely complaint, or prior statement of identification
- Rehabilitation after impeachment permitted
20
Q
Impeachment
What types of character evidence may be used to impeach a witness?
A
- Reputation or opinion evidence to show witness has untruthful character
- Specific acts of misconduct that are probative of truthfulness
- Criminal convictions
21
Q
Impeachment
Methods of rehabilitation
A
- Witness may explain on re-direct examination
- If any evidence of witness’s bad character for untruthfulness is introduced, other side may introduce opinion or reputation evidence of witness’s truthfulness
- May introduce prior consistent statements
22
Q
Impeachment
How may specific acts of misconduct be used to impeach a witness?
A
- Must be probative of truthfulness
- Can only use in cross-examination
- Cannot refer to consequences of bad act (e.g. arrest, firing)
- Must have good faith basis for believing misconduct actually occured
- Cannot rebut denial
23
Q
Impeachment
When may criminal convictions be used to impeach a witness?
A
- Only convictions permissible, not allegations or arrests
- Court must admit conviction of crime of dishonesty or false statement (e.g. fraud)
24
# Impeachment
When will the court exclude a prior conviction to impeach a criminal D?
Court will exclude unless probative value outweighs prejudicial effect
25
# Impeachment
When will the court exclude a prior conviction to impeach a witness?
Court will exclude unless probative value substantially outweighs prejudicial effect
26
# Impeachment
Are stale convictions excluded?
Generally inadmissible if more than 10 years have passed since date of conviction or release from confinement, whichever is later, unless:
* Probative value substantially outweighs prejudicial effect
* Proponent gives adverse party reasonable written notice of intent to use
27
# Impeachment
Are misdemeanor convictions admissible to impeach a witness?
No, unless the misdemeanor is a crime of dishonesty or false statement
28
# Impeachment
When may a conviction not be used to impeach a witness?
Pardoned based on rehabilitation and no subsequent felony conviction, or innocence
29
# Impeachment
Are juvenile convictions admissible to impeach a witness?
* Generally no
* Exception: court has discretion to admit evidence of juvenile offenses committed by a witness other than D, if evidence would be admissible to attack credibility of adult and necessary to determination of D’s guilt
30
# Impeachment
Is a constitutionally defective conviction admissible to impeach a witness?
No
31
# Impeachment
What non-character evidence may be used to impeach a witness?
1. Prior inconsistent statement
2. Bias and interest
3. Sensory deficiency
4. Contradiction
32
# Impeachment
May prior inconsistent statements be used to impeach a witness?
* Yes, may show a witness has made statements inconsistent with present testimony
* May show by examining witness or introducing evidence
33
# Impeachment
What must a party do to introduce extrinsic evidence of a prior inconsistent statement to impeach witness?
Lay foundation by:
* Give witness opportunity to explain or deny, and
* Give adverse party opportunity to examine witness about it
No foundation requirement if witness is opposing party
34
# Impeachment
When is a prior statement "inconsistent?"
* Statement omits fact it would have been natural for witness to include in prior statement
* Failing to remember fact in prior statement then remembering fact at trial
* Present lack of memory not inconsistent unless court believes witness is pretending
35
# Impeachment
May a party impeach a witness through their bias and interest?
* May impeach by showing witness has a bias against the party or has an interest in outcome of case
* Majority rule: witness must first be asked about bias on cross-examination before extrinsic evidence permitted
36
# Impeachment
May a party impeach a witness based on sensory deficiency?
* May impeach by showing that aculties of perception and recollection were so impaired that it is doubtful they could have perceived the facts, or witness had no knowledge of the facts
* Admissible on cross-examination, and by extrinsic evidence with no foundation requirement
* Examples: bad eyesight, poor memory, intoxication
37
# Impeachment
May a party impeach a witness based on contradiction?
* May impeach when cross-examiner gets witness to admit they lied or were mistaken about statements made during direct examination
* Extrinsic evidence permitted unless impeaching fact is collateral (no significant relevance to case or witness’s credibility)
38
# Impeachment
May a party impeach a witness on collateral matters?
Yes, but not by extrinsic evidence or prior inconsistent statements
39
# Impeachment
May a hearsay declarant be impeached?
Yes, to the same extent as normal in-court witness
40
# Impeachment
How may a party rehabilitate a witness with prior consistent statements?
* If impeached based on improper motive, may rebut with prior consistent statement that predates motive
* If impeached on non-character grounds, may introduce prior consistent statement that has tendency to rehabilitate witness's credibility
* Also admissible as substantive evidence
41
What is hearsay?
Out-of-court statement offered to prove the truth of the matter asserted
42
# Hearsay
"Out-of-court"
Includes statements made in other trials, even if the witness who made the statement is present in current trial
43
# Hearsay
"Statement"
Spoken or written assertion, or non-verbal conduct intended as an assertion (e.g. nodding)
44
# Hearsay
Do the rules of hearsay apply when a witness is asked about their own out-of-court statement?
Yes, personal knowledge is irrelevant
45
# Hearsay
What are the hearsay exceptions for which the declarant's availability is immaterial?
1. Excited utterance
2. Present sense impression
3. Present state of mind
4. Medical diagnosis or treatment
5. Past recollection recorded
6. Business records
7. Public records
46
# Hearsay
What are the hearsay exceptions for which the declarant must be unavailable?
1. Former testimony
2. Statement against interest
3. Dying declaration
4. Absence
47
# Hearsay
What are the types of admissible non-hearsay?
1. Non-hearsay uses
2. Verbal acts
3. Statement of party opponent
4. Prior inconsistent statement
5. Prior consistent statement
6. Prior statement of identification
48
Hearsay within hearsay
* Both outer and inner hearsay must fall under exception to be admissible
* Example: both document and its contents must fall under an exception
49
What are non-hearsay uses?
Any reason other than to prove the truth of the matter asserted, including:
* Impeachment
* Effect on listener
* Circumstantial evidence of state of mind
* Motive
50
# Non-hearsay uses
Verbal acts
* Words with independent legal consequences
* Examples: contract, donation, conspiracy, threat, defamation, bribes
51
# Non-hearsay statements
Statement of party opponent
Statement of opposing party is admissible against opposing party if statement made by:
* Opposing party itself, or adopted statement
* Person authorized by opposing party to make statement
* Opposing party’s agent or employee acting within scope of employment
* Co-conspirator in furtherance of conspiracy
52
# Non-hearsay statements
Prior inconsistent statement
Witness’s prior inconsistent statement is not hearsay if:
* Declarant testifies and is cross-examinable
* Prior statement inconsistent with present testimony
* Prior statement made during formal proceeding
53
# Non-hearsay statements
Prior consistent statement
Witness’s prior consistent statement is not hearsay if:
* Declarant testifies and is cross-examinable
* Prior statement consistent with present testimony
* Statement offered to rebut accusation of fabrication or improper motive
* Prior statement made before alleged motive arose
54
# Non-hearsay statements
Prior statement of identification
Witness’s prior statement of identification not hearsay if:
* Declarant testifies and is cross-examinable
* Identification made after perceiving person
55
Does the court have discretion to let in hearsay statements that do not fall under an exception?
Yes, if:
* Sufficient guarantees of trustworthiness,
* Strictly necessary, and
* Reasonable notice given to opposing party
56
# Hearsay exceptions
Excited utterance
Hearsay statement admissible if:
* Event was startling
* Declarant personally observed event
* Statement made while declarant still under stress of excitement
* Statement relates to event
57
# Hearsay exceptions
Present sense impression
Hearsay statement admissible if:
* Statement describes event perceived
* Declarant personally perceived the event
* Statement made at same time or immediately after event
58
# Hearsay exceptions
Present state of mind
Hearsay statement admissible if:
* Statement made about declarant’s state of mind
* Declarant was experiencing state of mind when made statement
States of mind include:
* Motive
* Intent
* Plan
* Emotional, sensory, or physical condition
* Intended future conduct
59
# Hearsay exceptions
Medical diagnosis or treatment
Hearsay statement admissible if:
* Declarant is patient or intermediary
* Statement made for and reasonably related to medical diagnosis or treatment
* Statement describes medical history, past or present symptoms, or general cause
60
# Hearsay exceptions
What statements are considered for medical diagnosis or treatment?
* Does not include blame-casting statements
* Includes statements made to paid expert for the purpose of obtaining an expert opinion
* Does not need to be told to a medical professional, can be asking a friend for advice
61
# Hearsay exceptions
Past recollection recorded
Record may be read into evidence if:
* Witness made or adopted record when fresh in their mind
* Record accurately reflects witness’s knowledge
* Witness had prior personal knowledge on the matter
* Witness can no longer recall, even after having memory refreshed
62
# Hearsay exceptions
Business records
Record of act, event, condition, or opinion admissible if:
* Record made at or near time of event
* Made by party with firsthand knowledge
* Made and retained in regular course of business
* Opposing party does not show record to be untrustworthy
63
# Hearsay exceptions
More information on business records exception
* “Business” includes non-profits, hospitals, and schools
* Does not include self-serving reports made for purpose of litigation
* May be admitted to prove that non-occurrence or non-existence of matter if regular practice of business to record all such matters
64
# Hearsay exceptions
Public records
Record of act, event, condition, or opinion admissible if:
* Made by and within scope of duty of public employee
* Made at or near time of event
Only D can offer police reports in criminal case
65
# Hearsay exceptions
When is a declarant unavailable?
1. Dead
2. Incapacitation by physical or mental illness
3. Testimonial privilege
4. Refusal to testify despite court order
5. Inability to remember subject matter
6. Absent
66
# Hearsay exceptions
When is a declarant absent?
Beyond reach of court subpoena and proponent unable to secure attendance through reasonable means
67
# Hearsay exceptions
When is a declarant not unavailable?
Party wrongfully prevented declarant from testifying
68
# Hearsay exceptions
Former testimony
Unavailable declarant’s former statement admissible if:
* Gave testimony under oath at trial, hearing, or deposition
* Testimony given against same party or party’s predecessor in interest
* Party it is being used against had opportunity and similar motive to cross-examine at prior proceeding
69
# Hearsay exception
Other information about former testimony exception
“Predecessor in interest”
* Example: grantor-grantee, testator-executor, joint tenants
Does not include statements offered against D at grand jury
70
# Hearsay exceptions
Statement against interest
Unavailable declarant’s statement admissible if:
* Made statement declarant would only make if it were true because against monetary, property, or penal interests
* Reasonable person in declarant’s position would know statement would be against their interest
71
# Hearsay exceptions
Other information about statement against interest exception
* Must provide additional corroboration in criminal cases
* Not against interest if confess after being acquitted of the crime
72
# Hearsay exceptions
Dying declaration
Unavailable declarant’s statement admissible if:
* Declarant made statement when believed death was imminent
* Statement made from personal knowledge about causes and circumstances of death
73
# Hearsay exceptions
Other information about dying declaration exception
* May only be used in civil cases or homicide prosecutions
* Declarant does not actually have to die
74
# Hearsay exceptions
Absence
* Unavailable declarant’s statement admissible if a party the statement is being used against wrongfully made the declarant unavailable
* Example: intimidation, murder
75
Confrontation Clause
Criminal Ds have right to cross-examine witnesses against them
Hearsay which falls under an exception or is statutorily defined non-hearsay is inadmissible if:
* Declarant unavailable,
* Statement is testimonial,
* Offered against criminal D, and
* Criminal D has had no opportunity to cross-examine declarant
76
# Confrontation Clause
When are statements "testimonial"?
* Formal statement intended to prove something
* Statement made when reasonable person would believe their statement would be available for use at a later trial
* Statements made to aid in ongoing emergency not testimonial
* Reports summarizing forensic analysis are testimonial
77
Authentication
Writing is only admissible if offering party authenticates writing by proof sufficient to show a jury finding of genuineness that the writing is what it claims to be
78
How are writings generally authenticated?
* Opponent admits to authenticity, or acted upon the writing’s authenticity
* Eyewitness testimony of someone with knowledge who saw the writing executed or heard it acknowledged
79
# Authentication
Handwritten document
* Lay witness with familiarity of author’s handwriting gained in the course of normal affairs
* Expert testimony comparing handwriting to known sample
* Submit handwriting samples directly to jury
80
# Authentication
Ancient document
Authenticated if:
* At least 20-years-old
* Condition does not raise suspicions about authenticity
* Found where a writing of that sort would usually be kept
81
# Authentication
Reply letter doctrine
Writing can be authenticated by proof that it was written in response to a communication sent to the purported author
82
# Authentication
Photos and videos
* Must be identified by witness as a fair and accurate representation of facts depicted
* Photographer generally does not need to testify
83
# Authentication
Unattended camera
* Example: CCTV
* Authenticated if proof the camera was operating properly and that images came from camera
84
# Authentication
X-rays, EKGs, etc.
Authenticated if show:
* Process used was accurate,
* Machine was in working order,
* Operator was qualified to operate it,
* Custodial chain established to assure there has been no tampering
85
Self-authenticating documents
1. Government documents bearing seal
2. Official publications
3. Certified copies of public records or private records on file at public office
4. Newspapers and periodicals
5. Trade inscriptions and labels
6. Notarized documents
7. Commercial paper
8. Business records
9. Electronically generated records or data with certification and notice
86
# Authentication
Voice recordings
Voice identified by person who has heard the voice of the speaker at any time to authenticate identity of speaker
87
# Authentication
Telephone conversations
* Party to call recognized speaker’s voice,
* Speaker had knowledge of certain facts,
* Speaker answered phone number and identified themselves or residence, or
* Speaker who answered business’s phone talked about business matters
88
# Authentication
Business records
Custodian of records or other qualified witness must provide in-court testimony or written certification
89
Best evidence rule
* To prove content of writing, recording, or photograph, must produce original
* Does not apply to real, physical evidence
90
When does BER apply?
BER applies when:
* Legally operative document (e.g. contracts and wills)
* Witness’s knowledge of a fact comes from the writing (rather than personal knowledge)
BER does not apply when:
* Witness has personal knowledge of the fact to the proved
91
# BER
Duplicates
* “Duplicate”: exact copy made by mechanical means
* Exact duplicates are admissible to same extent as originals unless unfair (e.g. duplicate is unreadable) or a genuine question of original’s authenticity
92
# BER
"Original"
Writing itself, or any counterpart intended to have the same effect
93
# BER
When is secondary evidence admissible?
Offering party has a good reason for not having the original:
* Loss or destruction of original, unless offering party destroyed it in bad faith
* Cannot be obtained by any available judicial process (e.g. outside reach of jurisdiction and unobtainable despite reasonable effort)
* In possession of adversary who fails to produce after due notice
94
What are exceptions to BER?
* Summary permitted for voluminous records
* Certified copies of public records
* Collateral (minor importance) writings
* Opponent has admitted the writing’s contents
* Facts to be proved exist independently of the document (e.g. birth and death certificates)
95
What are preliminary BER issues of fact left for the jury?
* Whether the original ever existed
* Whether writing produced at trial is an original
* Whether evidence correctly offered reflects contents of original
96
Real evidence
* Actual, physical evidence
* Offering party must offer proof sufficient to show a jury finding of genuineness that the writing is what it claims to be
97
What are the requirements for real evidence to be admissible?
* Authentic
* Identified as what offering party claims it to be, based on witness who testifies they recognize the object, or evidence of substantially unbroken chain of possession
* If condition of object is significant, must show it is in substantially the same condition at trial as it was on relevant occasion
98
What types of real evidence are generally permissible?
* Items used for explanatory purposes permitted (not admitted into evidence)
* Maps, charts, models to illustrate testimony (authenticated by testimony that faithful reproduction)
* Experiments and demonstrations
* Exhibition of injury
* Jury may view a place in person (at judge’s discretion)
99
Lay witness competence
Witnesses presumed competent
Requirements:
* Witness has personal knowledge, and
* Takes oath to testify truthfully
100
# Lay witnesses
Dead man's acts
* in civil cases, interested party incompetent to testify about personal transactions or communications with deceased party when offered against deceased party
* Not recognized in FRE
101
Are children competent witnesses?
Competency of children evaluated on case-by-case basis based on capacity and intelligence
102
Are insane people competent witnesses?
Yes, if understand obligation and have capacity to tell truth
103
Are judges and jurors competent witnesses?
* Jurors and judge in case are incompetent to testify during or about case
* Exception: juror may testify as to any extraneous prejudicial information, improper outside influence, mistake on jury form, whether jurors relied on racial stereotypes to convict defendant
104
# Lay witnesses
Can judges exercise control over examination of witnesses?
Yes, should exercise reasonable control over examination of witnesses to aid ascertainment of truth, avoid wasting time, and protect witnesses from harassment
105
# Lay witnesses
Are leading questions permitted?
Generally only allowed on cross-examination
Permitted on direct examination if:
* Done to elicit preliminary or introductory matters,
* Witness needs help responding, or
* Witness is hostile, an adverse party, or affiliated with adverse party
106
# Lay witnesses
What is the scope of cross-examination
Scope limited to scope of direct examination and impeachment
107
# Lay witnesses
What are the types of improper questions?
1. Misleading
2. Compound
3. Argumentative
4. Conclusionary
5. Cumulative
6. Unduly harassing or embarrassing
7. Call for narrative answer
8. Call for speculation
9. Assume facts not in evidence
108
What are the types of improper answers?
* Lack foundation
* Non-responsive
109
# Lay witnesses
Refreshing recollection
* Any writing or object may be used
* Need not be admitted or authenticated
* May not read directly from writing, must set aside writing before testifying
* Adverse party entitled to have writing produced, cross-examine witness with it, and introduce portions into evidence
110
# Lay witnesses
Past recollection recorded
* If witness still unable to testify after having recollection refreshed, writing may be read into evidence as substitute for witness’s current lack of memory
* Must lay proper foundation
* Must be read to jury, offering party may not have record admitted
* Record may be admitted if then offered by adverse party
111
# Lay witnesses
How is the proper foundation laid for past recollection recorded?
Must show:
* Witness has insufficient recollection,
* Witness had personal knowledge when record was made,
* Record made by witness or someone under their direction, or witness adopted it,
* Record was made when fresh in witness’s mind, and
* Record accurately reflects witness’s knowledge
112
Is lay witness opinion testimony admissible?
No, unless:
* Opinion is rationally based on witness’s perception,
* Helpful to trier of fact, and
* Not based on specialized knowledge
113
What types of lay witness opinion testimony are permissible?
1. General appearance, condition, or emotion of a person
2. Matters of sense recognition (e.g. how someone smelled)
3. Voice or handwriting identification
4. Speed of moving object
5. Value of witness’s own services or property
6. Rational or irrational nature of another’s conduct
7. Person’s level of intoxication
114
What types of lay witness opinion testimony are not permissible?
* Whether they or someone else acted as an agent
* Whether contract was formed
115
Is expert witness opinion testimony permissible?
Yes, even if lack direct personal knowledge of incident
116
What are the requirements for expert opinion testimony to be admissible?
* More likely than not that scientific, technical or specialized knowledge would help trier of fact,
* Opinion based on sufficient facts or data
* Opinion produced by reliable principles and methods
* Opinion reflects a reliable application of methods to facts
* Expert qualified by specialized knowledge, skill, experience, training, education
117
# Expert testimony
What may experts base their opinions on?
* Facts based on expert’s own observation
* Facts made known to expert at trial
* Facts supplied to expert outside courtroom that are the type reasonably relied on by other experts in the field (facts need not be admissible, but if inadmissible expert must not disclose facts to the jury unless court determines probative value substantially outweighs prejudicial effect)
118
# Expert testimony
Daubert factors
Factors to determine credibilitly of expert:
* Testing of principle or method
* Rate of error
* Acceptance by other experts in same discipline
* Peer review and publication
119
Learned treatises
Treatises must be:
* Established as reliable authority,
* Used in context of expert testimony, and
* Read into evidence
Relevant excerpt from scholarly treatises, periodical or pamphlet may be used
May be used to impeach expert, and as substantive evidence
120
May an expert witness give an opinion on the ultimate issue in a case?
* Yes
* Exception: criminal D’s mental state when mental state constitutes an element of crime or defense (e.g. insanity defense)
121
Court-appointed experts
* On party’s motion or court’s own motion, court may order parties to show cause why experts should not be appointed and ask parties to submit nominations
* Court may appoint any expert who consents
* Any party may depose expert, call expert as witness, cross-examine expert
122
What are the requirements for a court-appointed expert?
* Court must inform expert of duties
* Expert must advise parties of any findings they make
123
Sequestration and exclusion of witnesses
* Upon request, judge must exclude witnesses from courtroom (and may do so on their own)
* Court may issue order prohibiting disclosure or access of trial testimony to excluded witnesses
124
Which witnesses cannot be excluded from the courtroom?
* Party who is a human
* Designated representative of a party that is not human
* Person whose presence is essential to party’s claim or defense
* Person statutorily authorized to be present
125
Witnesses called or examined by court
* Court may examine parties’ witnesses or call own witnesses
* Parties entitled to cross-examine court’s witnesses
* Parties may object at the time witness called, or the next available opportunity when jury is not present
126
When are testimonial privileges waived?
* Not affirmatively claimed
* Holder voluntarily discloses confidential communication
* Holder signed a contract waiving in advance
127
Applicable law for privileges in federal court
* Federal question civil cases: federal common law applies
* Criminal cases: federal common law applies
* Diversity civil cases: privilege law of the substantive state law applies
128
Which privileges does federal common law recognize?
1. Attorney-client privilege
2. Spousal testimonial privilege
3. Confidential marital communications privilege
4. Psychotherapist/social worker-patient privilege
5. Clergy-penitent privilege
6. Privilege against self-incrimination
7. Government privileges
129
Attorney-client privilege
* Confidential communications between attorney and client during professional legal consultation are privileged from disclosure
* “Confidential”: not intended to be disclosed to third parties
* Only applies to communications, not underlying information, pre-existing documents, or physical evidence
* Held by client
* Survives client's death, but estate may waive
130
What does not destroy attorney-client privilege?
* Unknown presence of a stranger
* Eavesdropping, so long as privilege holder was not negligent
* Presence of representatives (e.g. paralegal, GAL)
* Presence of person necessary to transmit information (e.g. interpreter)
131
What are exceptions to attorney-client privilege?
* Communications to aid in planning or furthering crime or fraud (e.g. destruction of evidence)
* Client has put legal services at issue in case
* Dispute between attorney and client for breach of duty (e.g. legal malpractice)
132
Effect of joint clients on attorney-client privilege
* If two or more clients with common interest consult same attorney, their communications with attorney are privileged as to third parties
* Privilege destroyed if clients later sue each other
133
Physician-patient privilege
Confidential information acquired by physician is privileged if:
* Professional relationship existed
* Information was acquired for purposes of diagnosis or treatment
* Information necessary for diagnosis or treatment
134
What are the exceptions to the physician-patient privilege?
* Patient put physical condition in issue
* Assistance sought to aid in wrongdoing
* Dispute between physician and patient
* Patient agreed to waive privilege
135
Psychotherapist/social worker-patient privilege
* Operates like attorney-client privilege
* Exception: patient puts mental condition at issue
136
Marital communications privilege
* Either spouse may refuse to testify about communications that occurred during marriage
* Applies in civil and criminal cases
* Applies regardless of whether couple married at time testimony requested
* Held by both spouses, so both spouses must waive
137
Do the marital communications have to be confidential?
* Yes, made in reliance on intimacy of marital relationship
* Confidentiality not destroyed by later telling third party about communication
* Threats and abusive language not privileged
* Presence of young children living in home does not destroy privilege
138
What are exceptions to the marital communications privilege?
* Legal actions between spouses
* Domestic crimes
* Furtherance of a joint crime or fraud
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Spousal immunity
* AKA spousal testimonial privilege
* Spouse may refuse to testify against criminal D spouse
* Requires valid marriage at the time testimony requested
* Only applies in criminal cases
* Held by witness-spouse only
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What is the burden of production?
Pleading party has burden of producing evidence sufficient to make out a prima facie case
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What is the burden of persuasion?
* Civil cases: by a preponderance of the evidence (sometimes clear and convincing evidence)
* Criminal cases: beyond a reasonable doubt
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What preliminary questions does the jury decide?
Jury decides issues affecting relevance:
* Whether evidence is authentic
* Whether person was acting as an agent
* Whether witness has personal knowledge
Judge first determines whether there is sufficient proof to support a jury finding that fact exists
