What is it

Question 1

6th Amendment - Confrontation Clause

Answer 1

In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .

1. If a witness does testify at trial against D, D will have an opportunity to cross-examine (“confront”) that witness.
2. If a witness does not appear at trial, then that witness’ testimony cannot be used b/c D is not able to confront the witness.
3. the right to confrontation is NOT absolute

Question 2

6th Amendment - Confrontation Clause #2

Answer 2

What is the primary purpose of the out of court statement to a police/government official?

–To provide assistance to resolve an ongoing emergency. (Nontestimonial) no confrontation clause issue

or

–To establish or prove past events for use in criminal prosecution (Testimonial)

Question 3

Attorney-Client Privilege

Answer 3

1. The privilege belongs to the client, not the professional
2. The privilege only protects communications made for the provision of professional services.
3. The privilege only protects confidential communications.

Question 4

Bruton Doctrine

Answer 4

Bruton thus could not

“accept limiting instructions as an adequate substitute for petitioner’s constitutional right of cross-examination” in a case where a nontestifying codefendant’s “powerfully incriminating extrajudicial statements” of doubtful credibility were introduced in a joint trial, even though the jury was instructed to disregard the statements in determining the defendant’s guilt or innocence.

Question 5

Confidential Communication - Limited Exception

Answer 5

If “in the circumstances of the case, disclosure of the identity of the client [is] in substance a disclosure of the confidential communication” then the client’s identity may be privileged.

Otherwise, a client’s identity is not privileged

Question 6

Confidential Marital Communications Privilege

Answer 6

Permits one spouse to prevent the other spouse from testifying about things that were

• 1) said;
• 2) in confidence;
• 3) during the marriage

Privilege remains after divorce.

Every state recognizes this privilege.

Question 7

FRE 1001 - Definitions the Apply to This Article

Answer 7

(d) an “original” of a writing or recording means the writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it. For electronically stored information, “original” means any printout-or other output readable by sight-if it accurately reflects the information. An “original “ of a photograph includes the negative or a print from it.
(e) a “duplicate” means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.

Question 8

FRE 1002 - Requirement of the Original

Answer 8

Original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.

• The key issue in applying Rule 1002 is identifying when the proponent of a piece of evidence is trying to prove the contents of a document.
• If a party is trying to prove the contents of a document then a copy of that document is necessary. The contents of the document cannot be proved by a witness’ recollection of what the document says.

Question 9

FRE 1003 - Admissibility of Duplicates

Answer 9

A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.

Question 10

FRE 104(b) - Conditional Relevance

Answer 10

“When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the f_act does exist_.”

Question 11

FRE 105 - Limiting Evidence Not Admissible Against Other Parties

Answer 11

•If the court admits evidence that is admissible against a party or for a purpose – but not against another party or for another purpose – the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.

• You must request a limiting instruction!

Question 12

FRE 401 - Test for Relevant Evidence

Answer 12

Evidence is relevant if: A. PROBATIVE - It has a tendency to make a fact more or less probable than it would be without the evidence. B. MATERIAL - The fact is of consequence in determining the action.

Question 13

FRE 402 General Admissibility of Relevant Evidence

Answer 13

Relevant evidence is admissible unless any of the following provides otherwise:

• The United States Constitution
• a federal statute
• these rules; or
• other rules prescribed by the Supreme Court

Irrelevant evidence is not admissable.

Question 14

FRE 403 - Excluded Relevant Evidence

Answer 14

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of . . .

• unfair prejudice,
• confusing the issues,
• misleading the jury,
• undue delay,
• wasting time,
• or needlessly presenting cumulative evidence.

Question 15

FRE 404(a)(1) - Character Evidence Prohibited Uses

Answer 15

“Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.”

Question 16

FRE 404(a)(2) - Character Evidence; Exceptions for a Defendant or Victim in a Criminal Case

Answer 16

(a)(2) The following exceptions apply in a criminal case:

(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;

(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:

(i) offer evidence to rebut it; and
(ii) offer evidence of the defendant’s same trait; and

(C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.

Question 17

FRE 404(a)(3) Character Evidence; Exceptions for a Witness

Answer 17

(a)(3) Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.

Question 18

FRE 404(b)(1) - Character Evidence; Crimes, Wrongs, Prohibited

Answer 18

“Evidence of a crime, wrong, or other act is 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.”

Question 19

FRE 404(b)(2) - Character Evidence; Crimes, Wrongs, Permitted Uses

Answer 19

This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:

• provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and
• do so before trial-or during trial if the court, for good cause, excuses lack f pretrial notice.

Question 20

FRE 405(a) - Methods of Proving Character; By Reputation or Opinion

Answer 20

a) When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion.

On cross-examination, the court may allow an inquiry into relevant specific instances of the person’s conduct.

Question 21

FRE 405(b) - Methods of Proving Character; By Specific Instances of Conduct

Answer 21

b)When a person’s character or character trait is an essential element of the charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.

Question 22

FRE 406 - Habit; Routine Practice

Answer 22

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.

Question 23

FRE 407 - Subsequent Remedial Measures

Answer 23

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

• Negligence -
• Culpable conduct
• A defect in a product or its design; or
• A need for a warning or instruction

But the court may admit this evidence for another purpose, such as impeachment, or – if disputed – proving ownership, control, or the feasibility of precautionary measures.

Question 24

FRE 408(a) - Settlement Negotiations*

Answer 24

Evidence of the following is not admissible . . . either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or contradiction:

• Furnishing, promising or offering . . . a valuable consideration in compromising or attempting to compromise a claim; and
• Conduct or a statement made during compromise negotiations about the claims . . .

Question 25

FRE 408(b) - Settlement Negotiations

Answer 25

The **court may admit this evidence for another purpose**, such as * ​_proving a witness’ bias or prejudice_, * _negating a contention of undue delay_, or * _proving an effort to obstruct a criminal investigation or prosecution_.

Question 26

FRE 409 - Offers to Pay Medical Expenses

Answer 26

Evidence of furnishing, promising or offering to pay medical, hospital or similar expenses resulting from an injury is **not admissible to prove liability** for the injury. _This is not the same as **admitting to fault, which is admissible** evidence._

Question 27

FRE 410 - Pleas, Plea Discussions, and Related Statements

Answer 27

•In a criminal or civil case, evidence of the following is **not admissible against the defendant who made the plea** or participated in the discussions: –A guilty plea that was later withdrawn –… –A statement made during plea discussions with an attorney for the prosecuting authority if they did not result in a guilty plea or they resulted in a later-withdrawn guilty plea

Question 28

FRE 411 - Evidence of Insurance

Answer 28

* Evidence that a person _was or was not ***insured***_ against liability is **not admissible** to prove whether the person acted negligently or otherwise wrongfully. * But the court may admit this evidence for another purpose, such as proving a witness’ bias or prejudice or proving agency, ownership or control.

Question 29

FRE 413(a) - Similar Crimes in Sexual-Assault Cases; *Permitted Uses*

Answer 29

In a criminal case in which a **defendant is accused of a sexual assault**, the court **may admit evidence that the defendant committed any other sexual assault.** The evidence may be considered on any matter to which it is relevant.

Question 30

FRE 414(a) - Similar Crimes in Child-Molestation Cases; *Permitted Uses*

Answer 30

In a criminal case in which **a defendant is accused of child molestation**, the court **may admit evidence that the defendant committed any other child molestation.** The evidence may be considered on any matter to which it is relevant.

Question 31

FRE 415(a) - Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation; *Permitted Uses*

Answer 31

•In a **civil case** involving a claim for **relief based on a party’s alleged sexual assault or child molestation**, the **_court may admit evidence that the party committed any other sexual assault or child molestation_**.” –Applies to civil cases. –_Applies to both plaintiffs and defendants_. –_Permits use of other sexual assaults or child molestation as character evidence._

Question 32

FRE 601 - Competency to Testify in General

Answer 32

Every person is competent to be a witness unless the rules provide otherwise. In a civil case, state law governs the witness's competency regarding a claim or defense for which state law supplies the rule of decision.

Question 33

FRE 602 - Need for Personal Knowledge

Answer 33

A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has **personal knowledge** of the matter.” * Evidence to prove personal knowledge may consist of the witness’s own testimony.” * This rule does not apply to a witness’s **expert testimony** under Rule 703.

Question 34

FRE 603 - Oath or Affirmation to Testify Truthfully

Answer 34

Before testifying, a witness must give an **oath** or affirmation to **testify truthfully.**

Question 35

FRE 605 - Judge's Competency as a Witness

Answer 35

A judge may not testify as a witness during a trial over which she is presiding.

Question 36

FRE 606 - Juror's Competency as a Witness

Answer 36

A **juror** may not testify as a witness before the other jurors at a trial.

Question 37

FRE 607 - Who May Impeach a Witness

Answer 37

Any party, **including the party that called the witnes**s, may attack the witness’s credibility. * i.e., any party may impeach any witness * This is because testifying under oath puts your character for truthfulness at issue.

Question 38

FRE 608(b) - A Witness's Character for Truthfulness or Untruthfulness; *Specific Instances of Conduct*

Answer 38

Except for a criminal conviction under Rule 609, **extrinsic evidence is not admissible to prove specific instances of a witness’s conduct** in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into [if they are probative.] *Before impeaching a witness on cross-examination with questions suggesting they have lied in the past, the lawyer must have a “good faith” basis for believing that W did in fact commit the alleged acts.*

Question 39

FRE 609(a)(1) - Impeachment by Evidence of a Criminal Conviction; *In General*

Answer 39

Allows the use of evidence of a criminal conviction for a crime that was **punishable by more than one year’s imprisonment:** * (A) always if **W is not** the defendant (subject only to R. 403) * (B) if W is the defendant in a criminal case then **only if the probative value outweighs the prejudicial effect**.

Question 40

FRE 609(a)(2) - Impeachment by Evidence of a Criminal Conviction; *In General*

Answer 40

But, if the crime “**required proving … a dishonest act or false statement**” then it is always admissible against the W. *Suggests that 403 does not apply to convictions admitted under 609(a)(2).*

Question 41

FRE 609(b) - Impeachment by Evidence of a Criminal Conviction; *Limit on Using the Evidence After 10 Years*

Answer 41

Limits the use of evidence of convictions if “**more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later**” * For these “old” crimes, conviction is only admissible if: * (1) Probative value substantially outweighs its prejudicial effect; and * (2) Proponent gives notice to the adverse party

Question 42

FRE 609(c) - Impeachment by Evidence of a Criminal Conviction; *Effect of a Pardon, Annulment, or Certificate of Rehabilitation*

Answer 42

A prior conviction is _not admissible_ if * (1) W has been **rehabilitated**\*, so long as W has not been convicted of a later crime; and * (2) If W was pardoned on a finding of **innocence**, then the prior conviction is simply inadmissible.

Question 43

FRE 610 - Religious Beliefs or Opinions

Answer 43

Evidence of a witness’s **religious beliefs or opinions is not admissible** to attack or support the witness’s credibility.”

Question 44

FRE 612(b) - Refreshing Memory

Answer 44

Generally, when a witness’s memory is refreshed with a document of some sort, the **adverse party** is entitled to: 1. **Receive a copy of the document and cross-examine the witness about it; and** 2. **Introduce into evidence any portion of the document** that relates to the witness’s testimony

Question 45

FRE 613 - Witness's Prior Statement

Answer 45

A. _Showing or disclosing the statement during examination_. When examining a witness about the witness's prior statement, a party need not show it or disclose its contents to the witness. But **the party must, on request,** show it or **disclose its contents to an adverse party's attorney.** B. _Extrinsic evidence of a prior inconsistent statement_. **Extrinsic evidence** of a witness's prior inconsistent statement is **admissible only** if the **witness is given an opportunity to explain or deny the statement** and an **adverse party** is given an **opportunity to examine the witness** about it, or if justice so requires. This does not apply to an opposing party's statement under rule 801(d)(2).

Question 46

FRE 701 - Lay Witness Testimony

Answer 46

If a witness is **not testifying as an expert,** testimony in the form of an opinion is limited to one that is: a) Rationally based on the **witness’s perception**; b) Helpful to **clearly understanding the witness’s testimony or determining a fact** in issue; and c) **NOT based on scientific, technical or other specialized knowledge** within the scope of Rule 702.

Question 47

FRE 702 - Expert Witnesses #1

Answer 47

A witness who is **qualified as an expert** by **knowledge, skill, experience, training or education** may testify in the form of an opinion or otherwise if: a) The expert’s **scientific, technical, or other specialized knowledge will help the trier of fact** to understand the evidence or determine a fact of issue; b) The testimony is **based on sufficient facts or data**; c) The testimony is the product of **reliable principles and methods**; and d) The expert has **reliably applied the principles and methods** to the facts of the case.

Question 48

FRE 702 - Expert Witnesses #2

Answer 48

Requirements of an Expert Witness: ## Footnote 1. The expert must have **expertise in a particular subject** as a result of “**knowledge, skill, experience, training or education.**” 2. The topic on which the expert testifies must be one where expert **testimony will help the jury** (usually b/c the jurors are not able to assess the matter without expert assistance). 3. There must be an **adequate factual basis** for the expert’s opinions. 4. The expert must use **reliable principles and methods** and they must be **reliably applied by the expert.** **subject to challenge under Rule 403**

Question 49

FRE 703 - Proper Basis for Expert Testimony

Answer 49

“An expert may **base an opinion on facts or data** in the case that the expert has been **made aware of or personally observed.**” •*Expert testimony need not be based on personal knowledge* *•Experts can base their opinions on data given to them by the party hiring them.* * “If experts in a particular field **would reasonably rely** on those kinds of facts or data in forming an opinion on the subject, they **need not be admissible for the opinion to be admitted**. * But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.”

Question 50

FRE 801 - Definitions That Apply to This Article; Exclusions from Hearsay

Answer 50

* "Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion. * “Declarant” means the person who made the statement. * “Hearsay” means a statement that: * 1. The declarant does not make while testifying at the current trial or hearing; and * 2. A party offers in evidence to prove the truth of the matter asserted in the statement. * ***Hearsay is an out of court statement offered to prove the truth of the matter asserted in that statement.***

Question 51

FRE 801(d)(2)(B) - Adoptive Admissions

Answer 51

A statement is **not hearsay** if * “[t]he statement is offered against an opposing party and * is one the party manifested that it adopted or believed to be true.” \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ * The Advisory Committee Notes suggest that **adoption by silence** of another’s statement occurs when:* * 1.Party heard and understood the statement* * 2.Party had an opportunity to respond* * 3.One would have expected party to respond; and* * 4.Party failed to respond/deny.*

Question 52

FRE 801(d)(1)(B) - Prior Consistent Statements

Answer 52

A statement is **not hearsay** if: The declarant testifies and is **subject to cross-examination about a prior statement**, and the statement . . . is **consistent with the declarant’s testimony** and is offered: * to **rebut an express or implied charge** that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or * To **rehabilitate the declarant’s credibility as a witness** when attacked on another ground.

Question 53

FRE 801(d)(2)(E) - Coconspirators’ Statements

Answer 53

A statement is not hearsay if * “[t]he statement is offered **against an opposing party** and * was made by the **party’s coconspirator** during and in **furtherance of the conspiracy.**”

Question 54

FRE 802 - The Rule Against Hearsay

Answer 54

Hearsay is not admissible unless any of the following provides otherwise: * a federal statute; * these rules; or * other rules prescribed by the Supreme Court

Question 55

FRE 803(1) - Present Sense Impression

Answer 55

The following are **not excluded by the rule against hearsay,** regardless of whether the declarant is unavailable as a witness: (1) A statement **describing or explaining an event** or condition, **made while or immediately after** the declarant **perceived it**

Question 56

FRE 803(2) - Excited Utterance

Answer 56

The following are **not excluded by the rule against hearsa**y, regardless of whether the declarant is unavailable as a witness: (2) A statement related to **a startling event or condition**, made **while the declarant was under the stress of excitement** that it caused.

Question 57

FRE 803(4) - Statements for Medical Diagnosis/Treatment

Answer 57

The following are **not excluded by the rule against hearsay**, regardless of whether the declarant is unavailable as a witness: 4.A statement that: A.Is made for – and is **reasonably pertinent to** – **medical diagnosis or treatment**; and B.Describes **medical history**; **past or present symptoms** or sensations; their inception; or their general cause.

Question 58

FRE 803(5) - Recorded Recollections

Answer 58

The following are **not excluded by the rule against hearsay .**. . : 5.A record that: A.is **on a matter the witness once knew about but now cannot recall** well enough to testify fully and accurately; B.was **made or adopted by the witness when the matter was fresh i**n the witness’s memory; and C.**accurately reflects the witness’s knowledge** If admitted, **the record may be read into evidence** _but may be received as an exhibit only if offered by an adverse party._

Question 59

FRE 803(6) - Business Records

Answer 59

Business Records are NOT hearsay when: ## Footnote 1. The record was **made at or near the time of the event** by a person with **knowledge of the event** 2. The record was **kept “in the course of a regularly conducted activity** of a business” 3. Making the record was **a regular practice of that activity** 4. These **conditions are established through the testimony of a custodian or through a certification** consistent with Rule 902(11) or (12); and 5. There are **no indications of untrustworthiness**.

Question 60

FRE 803(7) - Absence of a Record

Answer 60

The absence of a record of a matter in a business record can be used to show that the matter did not occur if: 1. A record was **regularly kept** for matters of that kind; and 2. There are **no indications of untrustworthiness**

Question 61

FRE 804(b)(2) – Dying Declarations

Answer 61

The following are **not excluded by the rule against hearsay** if the declarant is unavailable as a witness: 2.In a prosecution for **homicide or in a civil case,** a statement that the declarant, **while believing the declarant’s death to be imminent**, made **about its cause or circumstances.**

Question 62

FRE 804(b)(3) – Statements Against Interest

Answer 62

The following are **not excluded by the rule against hearsay** if the declarant is **unavailable** as a witness: 3.A statement that: A.a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was **so contrary to declarant’s** proprietary or pecuniary **interest** or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and B.is supported by **corroborating circumstances** that clearly indicate its trustworthiness, if it is offered in a criminal case that tends to expose the declarant to criminal liability.

Question 63

FRE 805 - Hearsay Within Hearsay

Answer 63

**Hearsay within hearsay** is **not excluded** by the rule against hearsay **if each part of the combined statements conforms with an exception** to the rule.

Question 64

FRE 901(a) - Authentication and Identification

Answer 64

“To satisfy the requirement of authenticating or identifying an item of evidence, **the proponent must produce evidence sufficient to support a finding** that the item is what the proponent claims it is.” ## Footnote *This requires evidence from which a reasonable trier of fact could make a finding by a preponderance of the evidence that evidence is what it purports to be.*

Question 65

FRE 901(b) - Authentication and Identification (demonstrative exhibits)

Answer 65

Because the demonstrative exhibit must fairly and accurately represent the evidence it purports to portray . . . 1. You put the underlying evidence on the record first (through witnesses or documents) 2. Then you introduce the demonstrative exhibit. you have to authenticate the exhibit before it can be introduced!

Question 66

FRE 901(b) - Authentication and Identification (methods)

Answer 66

Non-exclusive ways in which evidence may be authenticated: * chain of custody * Testimony of a witness with personal knowledge * Opinion about origins of handwriting by someone with familiarity of purported author’s handwriting * Distinctive characteristics of the evidence * Public records * Ancient documents

Question 67

FRE 608(a) - A Witness's Character for Truthfulness or Untruthfulness; *Reputation or Opinion Evidence*

Answer 67

A witness’s **credibility may be attacked or supported by testimony about the witness’ reputation** for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is **admissible only after the witness’s character for truthfulness has been attacked**.

Question 68

FRE 801(d)(2)(A) - Statements by an Opposing Party

Answer 68

A statement is **not hearsay** if : * “[t]he statement is offered **against an opposing party** and * was **made by [that] party in an individual or representative capacity.”**

Question 69

FRE 801(d)(2)(C), (D) - Statements by an Agent/Employee

Answer 69

A statement is **not hearsay** if * “[t]he statement is offered **against an opposing party** and * was made by a person whom the party **authorized to make a statement** on the subject * [or] was made by the party’s **agent or employee** on a matter within the scope of that relationship while it existed.”

Question 70

FRE 803(3) - Then-existing State of Mind

Answer 70

The following are **not excluded by the rule against hearsay**, regardless of whether the declarant is unavailable as a witness: 1.A statement of the declarant’s **then-existing state of mind (such as motive, intent or plan) or emotional, sensory or physical condition (such as mental feeling, pain or bodily health)**, _BUT NOT a statement of memory or belief to prove the fact remembered_ or believed …

Question 71

FRE 804(a) - Unavailability

Answer 71

A declarant is considered to be unavailable as a witness if the declarant: ## Footnote 1. Is **exempted from testifying** about the subject matter of the declarant’s statement **because the court rules that a privilege applies;** 2. **Refuses to testify about the subject matter** despite a court order to do so; 3. **Testifies to not remembering** the subject; 4. **Cannot be present or testify at the trial** or hearing because of _death or a then-existing infirmity, physical illness, mental illness;_ or 5. Is **absent from the trial or hearing** and the statement’s proponent has _not been able, by process or other reasonable means, to procure:_ A.The declarant’s attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or B.The declarant’s attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4).

Question 72

FRE 804(b)(1) – Former Testimony

Answer 72

The following are **not excluded by the rule against hearsay if the declarant is unavailable** as a witness: 1.**Testimony** that: A.Was given as a witness at a **trial, hearing or lawful deposition**, whether given during the current proceeding or a different one; and B.Is now offered **against a party** who had . . . an opportunity and similar **motive to develop it** by direct, cross-, or redirect examination.

Question 73

Proposed FRE 503(a)(4) - Confidential Communication

Answer 73

“A **communication is ‘confidential’** if **not intended [by the client] to be disclosed to third persons** other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client . . . .”

Question 74

**Proposed** FRE 503(d)(1) - Crime Fraud Exception

Answer 74

“If the services of the lawyer were sought or obtained to **enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud** [then there is no privilege].”

Question 75

Recognized Privileges by Federal Courts

Answer 75

**Federal courts recognize** three professional privileges: 1. **Attorney-client** privilege 2. **Psychotherapist-patient** privilege 3. **Clergy-penitent** privilege

Question 76

Spousal Testimonial Privilege

Answer 76

* Permits one spouse to prevent the other spouse from testifying about anything. * Privilege is **lost if the couple gets divorced**. * Very few jurisdictions recognize the strong form of this privilege. (Some jurisdictions recognize a weaker form where the privilege vests in the testifying spouse.)