I. Relevancea. Generally

i. Rule : in order for evidence to be admissible, it must first be both logically and legally relevant

ii. California Evidence Code Rules:1. CEC § 350: ONLY relevant evidence is admissible2. CEC § 351: (unless otherwise provided) ALL relevant evidence

is admissibleiii. Doctrine of Limited Admissibility

1. Rule : just bc evidence is inadmissible to prove one point does not mean that it cannot be admissible for another point

2. If evidence has been deemed admissible for a limited purpose, opposing counsel has a right to require court to give limiting jury instructions; if they fail to ask NOT reversible error

b. Logical Relevancei. Rule : Does the evidence have any tendency in reason to prove or

disprove any disputed fact that is of consequence to the determination of the action?

1. This is codified in FRE § 4012. NOTE: threshold is extremely low; logical relevancy satisfied if

the evidence is minimally probativec. Legal Relevance

i. Rule : logically relevant evidence is subject to exclusion if its probative value is substantially outweighed by its prejudicial impact

ii. Factors of Prejudicial Impact:1. Federal - FRE § 403

a. Mislead the juryb. Cause confusion of the issuesc. Cause undue delayd. Waste of timee. Needless presentation of cumulative evidence

2. California - CEC § 352a. Undue consumption of timeb. Undue prejudicec. Confusing the issuesd. Misleading the jury

iii. When probative value is very low, does not take much prejudicial impact to outweigh it

II. Opiniona. Lay Opinion

i. Anybody who is not testifying as an expert is testifying as a lay personii. Rule : opinion testimony of a lay person is limited to describing facts

within their personal knowledge1. Cannot give opinion as to matter calling for experts; OR2. As to commonplace matters

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3. Exceptions :a. Collectivized Facts: witness may collect facts that they

observed or heard and testify to an extrapolation if based on common sense or knowledge

i. Ex : taking shots, slurring speech; might allow the witness to say, “well, he appeared to be drunk”

b. Common Experienceiii. Federal - FRE § 701 – Opinion Testimony by Lay Witnesses

1. If a witness is not an expert, testimony limited to those opinions or inferences which are:

a. Rationally based on the perception of the witness; ANDi. Did witness use one of the five senses to perceive

the act or event?b. Helpful to a clear understanding of the witness

testimony or determination of a fact; ANDc. Not based on scientific, technical, or other specialized

knowledgeiv. California - CEC § 800

1. If a witness is not an expert, testimony in the form of an opinion is limited to opinion that is:

a. Rationally based on the perception of the witness; ANDi. Did witness use one of the five senses to perceive

the act or event?ii. Opinion must still be logically connected what he

perceivedb. Helpful to a clear understanding of his testimony

i. NOT allowed to make opinion if merely supports information that can be proven by established facts

v. Inferences can be made if they are rationally based1. Ex : witness testified that he saw D wink at him and infers that

D wanted witness to fake an alibi:a. Let the witness testify to the winkb. NOT what he thought the wink meantc. However, if they had a preexisting agreement to use the

wink for a faked alibi, then it would no longer be opinion but rather personal knowledge

b. Expert Opinioni. Rule : an expert can give testimony based on opinion so long as:

1. Expert is qualified by special knowledge, skill, experience, training, or education; AND

a. Must establish a basis for the expertise before they can testify

b. Voir Dire Process:

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i. Give the opposition to cross examine the expert about his/her credentials outside the presence of the jury

2. Testimony based on facts that would be reasonably relied upon by other experts in the field

a. Ex : expert tried to form an opinion based on symptoms described to him by the deceased’s widow; court held inadmissible bc not facts normally relied upon

ii. Federal - FRE § 702 – Testimony by Experts1. An expert, qualified by knowledge, skill, experience, training,

or education, may testify in the form of an opinion if:a. Testimony based upon sufficient facts or datab. Testimony is the product of reliable principles and

methods; ANDc. Witness has applied principles and methods reliably to

the facts of the caseiii. Federal - FRE § 703 – Bases of Opinion Testimony by Experts

1. Facts or data relied upon as the bases of an expert’s opinion must be of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject

iv. California - CEC § 720 – Qualification as an Expert1. Person qualifies as an expert if he has special knowledge, skill,

experience, training, or education sufficient to qualify himv. California - CEC § 801 – Expert Testimony Limitations

1. An expert testifying in the form of opinion is limited to such an opinion as is:

a. Sufficiently beyond common experienceb. Based on material reasonably relied on by other experts

III. Scientific / Demonstrative Evidencea. Scientific Evidence

i. Judge determines whether the evidence meets either test the judge is the gatekeeper

ii. Frye Standard used in California1. Rule : before scientific evidence can be offered, the scientific

test by which the evidence was gathered must be accepted by the general scientific community as being an accurate test

a. Ex : Lie detector test not admissible bc of the general view that these tests are unreliable

iii. Daubert Standard the Federal Standard1. Rule : before scientific evidence is admissible, several factors

must be evaluated to determine whether research methodology is appropriate:

a. The theory or technique can or has been testedb. Subject to peer review and publication?c. High known or potential rate of error?

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d. Degree of acceptance in the community?2. These are just factors, NOT elements

b. Demonstrative Evidencei. Rule : demonstrative evidence is NOT treated the same as scientific

evidence; instead, it is admissible so long as it is relevant1. Ex : Train and girl on the tracks reenactment. Judge decided

not logically relevant bc tended to prove contested fact of distance; legally relevant bc prejudicial did not outweigh probative

IV. Similar Happeningsa. Rule : in order to admit evidence of similar happenings, must show

substantial identity of the material circumstancesi. NOTE: this does not mean identical; there has to be a substantial

comparison btw the similar happeningsb. Similar NON-Happenings

i. P will argue similar happenings; D will argue similar non-happeningsii. Rule : evidence of non-occurrence of an accident only relevant if

multiple non-occurrences under static conditions where complaints would be likely

1. Factors to Consider :a. How many non-occurrences?

i. Must be a large numberb. Record of prior complaints or evidence that prior

accidents would have been reportsc. Static Conditions

i. Must show condition static and unlikely to change

V. Subsequent Repairsa. General Policy : do not want to dissuade people from repairing things until

after litigation for fear of liabilityb. At common law, this was ALWAYS inadmissiblec. Federal – FRE § 407

i. Rule : evidence of measures taken subsequent to an injury or harm that would have made injury/harm less likely to occur are:

1. Not Admissible to Showa. Negligenceb. Culpable Conductc. Defect in Productd. Defect in Product Designe. Need for Warning

2. Admissible to Showa. If at issue:

i. Ownershipii. Control

iii. Feasibility of Alternative Measuresb. Impeachment

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d. California – CEC § 1151i. Rule : evidence of measures taken subsequent to an injury or harm

that would have made injury/harm less likely to occur are:1. Not Admissible to Show

a. Negligenceb. Culpable Conduct

2. Admissible to Showa. Products Liabilityb. Impeachment

ii. Why does CA allow evidence for products liability?1. Courts believe that it would be too costly for a firm not to

repair their potentially defective items2. Thus, the policy rationale of promoting repairs is not

implicatedVI. Offers to Settle and Compromise

a. Rule : evidence of an offer to settle is inadmissible if offered on liability or lack of liability, however, the evidence might be admissible for a different purpose

i. Ex : impeachment of the witness (NOT admissible for impeaching based on prior inconsistent statements)

ii. Any others?b. Policy Rationale : do not want to discourage people from offering or reaching

a deal for fear that when you get into a lawsuit in court they will use it against you

c. Admissions Made DURING Offers to Settle :i. Common Law Admissible

ii. Federal Inadmissibleiii. California Inadmissible

d. Payment of or Offers to Pay Medical Expenses: i. Common Law Admissible

ii. Federal Inadmissibleiii. California Admissible (unless made out of humanitarian motives)

e. Admissions Made DURING Offers to Pay Medical Expenses: i. Common Law Admissible

ii. Federal Admissibleiii. California Admissible (unless made out of humanitarian motives)

f. Payments or Offers Made out of Humanitarian Motives: i. Common Law Admissible

ii. Federal Admissible (unless offer to pay medical expenses)iii. California Inadmissible

g. Admissions Made DURING Offers Made out of Humanitarian Motives: i. Common Law Admissible

ii. Federal Admissibleiii. California Inadmissible

h. CA and Humanitarian Motive

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i. Burden of proof on the party seeking to exclude the evidence to prove humanitarian motive

ii. This is a question of factVII. Judicial Notice

a. Generally :i. Taking JN of a fact means that neither party is allowed to argue or

introduce evidence against that factii. Purpose:

1. Time saving device2. Avoids possibility of jury reaching results contrary to common

senseb. Federal – FRE § 201

i. A judicially notice fact is one that is not subject to reasonable dispute and is either:

1. Generally known within the territorial jdx of the court; or2. Capable of accurate and ready determination by an

unquestionably accurate sourceii. Courts have discretion to take judicial notice even when not asked to

iii. Courts must take judicial notice if:1. Request by a party2. Supplied with the necessary information

iv. Jury Instructions:1. In a Civil Case jury must accept JN as conclusive2. In a Criminal Case jury may accept JN as conclusive

c. California – CEC § 450 – 453i. Mandatory Notice must be taken of:

1. Laws of the US and States2. Meaning of English words and phrases3. Meaning of legal expressions4. Facts and propositions of generalized, universally known

knowledge that cannot be reasonably disputed5. NOTE: failure to take JN of the above is a reversible error;

judge must take JN even if nobody asksii. Discretionary Notice may be taken of:

1. Foreign laws2. Court records in state or federal court3. Generally known facts that cannot reasonably be disputed4. Facts capable of immediate and accurate determination by an

accurate sourcea. Ex : Lincoln and the Farmer’s Almanac

VIII. Hearsaya. General :

i. Both sides can make a hearsay objection 1. Ex : D wants to introduce evidence that someone else confessed

to crime; Prosecution excludes bc of hearsayii. Policy :

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1. Want for accurate information in court2. Cross-examination

b. Rule : an out of court statement, offered to prove the truth of the matter asserted

i. Elements :1. Out of Court

a. Out of THIS courtb. Even an out of court statement made under oath is

hearsayc. Statement made by witness in different trial = hearsay

2. Statementa. Statement can be:

i. Oralii. Written

iii. Conduct intended to convey meaning1. Nonassertive conduct NOT a statement

(i.e. a scream)3. Offered to Prove the Truth of the Matter Asserted

a. Only concerned with statements being offered to prove their truth

b. Remember the Doctrine of Limited Admissibility:i. Is there a reason other than the truth of the

statement for it to be admitted?c. Non-Hearsay

i. In-Court Statementsii. Non-Assertive Statements

iii. Not for the truth of the matter assertediv. Animals and machines

1. Need a scientific foundation to prove reliability of the test, but not hearsay

v. Listener’s State of Mind (effect on the listener)1. Rule : if the statement is offered to show its effect on the

listener, NOT hearsay bc the statement not being offered for its truth

a. Ex: i. To Prove Reasonableness

self-defense/duress 1. Ex : someone threatens to kill you if you

do not do something; not trying to show that they will kill you, just that you feared it

ii. To Prove Notice1. Ex : notice of a dangerous condition when

negligence is asserted (Safeway ketchup bottle case)

vi. Declarant’s State of Mind

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1. Rule : does not matter if the statement is true; all that matters is what the state of mind of the delcarant is

vii. Operative Fact (K Terms)1. Rule : statements made in connection with a K are not offered

to prove the truth of the terms, but rather to show that the provision existed

a. Gifts/Wills contemporaneous statements accompanying a gift [transfer of property] are not evaluated for their truth but rather as part of the transaction to determine if it is a gift

IX. Hearsay Exceptions/Exemptionsa. Generally :

i. Federal law calls some of these exemptions and others exceptions1. No real difference other than title2. Exemptions:

a. Admissionsb. Prior Inconsistent Statementsc. Prior Consistent Statementsd. Prior Identifications

3. Exceptions Where Unavailability Required:a. Former Testimonyb. Dying Declarationsc. Declarations Against Interestd. CA ONLY Statements of Past State of Mind

4. All other exceptions availability not at issueii. What is unavailability?

1. FRE lack of memory, privilege, unwilling to testify, absent2. CEC focus on actual/physical unavailability

a. Stricter Requirementb. Unavailability Required

i. Former Testimony FRE § 804(b)(1)1. Rule : in order for former testimony to be admissible in the

present case:a. Declarant unavailableb. Former testimony made under oathc. Subject to cross examination

i. NOTE: does NOT include Grand Jury Trials bc no cross examination

d. Same interest and motive of partiesi. Compare issue sought to be established by

witness when testified at former trial, weigh it against issue sought to be proven by witness in this trial

ii. See differences between CIVIL and CRIMINALe. Substantially same issue

2. Criminal Cases:

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a. Must be same D in both trials otherwise Confrontation Clause issues

3. Civil Cases :a. Can be different D’s but the motive must be similar

i. Confrontation Clause does not apply to Civilb. Thus, does not matter if you yourself had a chance to

cross examine as long as issues/motives are sameii. Dying Declarations FRE § 804(b)(2) / CRC § 1242

1. Rule : dying declaration may be admitted despite the hearsay rule if:

a. Declarant is unavailablei. CEC: Declarant MUST be dead

ii. FRE: Only unavailability; must show:1. By preponderance of evidence that

declarant believed death was imminent2. Witness unavailable

b. Made under a sense of impending deathc. Pertaining to the cause and circumstances of his death

i. NOTE: cannot be speculative, must be within personal knowledge of D

2. Difference Between CEC and FRE CEC requires death3. Forfeiture Theory (don’t know the scope)

a. Comes into play with regard to whether a dying declaration is admissible against a D who cannot confront their accuser

b. This is one exception that we will let in, in some cases, even though there has never been a chance to confront

c. Reason : foundational decision for the court to decide; is the reason why they are unavailable bc the D shot them?

i. NOTE: if killed him in self-defense, some justices would not support the forfeiture theory

4. CL: only available in homicide cases where declarant died and was victim in the case

iii. Declarations Against Interest FRE § 804(b)(3) / CRC § 12301. General

a. Differences Between This and Admissionsi. Admissions

1. ONLY apply to party opponents2. Only admissible against declarant, co-c,

business partner, or declarant’s employer3. Does NOT require unavailability

ii. Declarations Against Interest1. Can be anything said by a third party2. Admissible against any party3. Requires unavailability

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b. Requirements:i. Unavailability

ii. Declarant realizes it is a statement against his interest

2. Interests Recognized by Both California and Federal:a. Pecuniary (monetary) or property interest of

declarant;b. Tends to subject declarant to civil or criminal liability;c. Statement invalidates declarant’s claim against

another;3. Additional Federal Interest

a. Statement tending to expose declarant to criminal liability and exculpate the accused

b. HOWEVER:i. Must be corroborating circumstances

indicating the trustworthiness of the statementc. CA does not have this

4. Additional California Interesta. Statement which would subject declarant to hatred,

ridicule, or social disgrace in the communityb. Federal does not have this

5. NOTE ON CONFRONTATION CLAUSEa. When prosecution offers hearsay as a statement against

penal interest against a criminal D:i. Even if the hearsay statement satisfies

requirements of statement against interest, would not be admissible unless confrontation clause is ALSO satisfied

b. Look for this on EXAM6. Common-Law only statements against pecuniary or

property interests of declarantc. Not Requiring Unavailability

i. Spontaneous Exclamations (Excited Utterance)1. General :

a. Availability of declarant is irrelevant thus, declarant can be anonymous

b. Self-serving statements can be admitted2. Rule : spontaneous exclamations will be admitted if:

a. Sufficiently startling eventb. CA and Fed differ slightly on second element:

i. CEC The statement describes/explains the startling event

ii. FRE The statement relates to the startling event

c. Statement made while under stress of the event

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i. NOTE: longer the time, less likely to be admitted; however, unconsciousness does not count towards time

3. Difference Between CEC and FREa. CA requires the statement to describe or explain the

event, whereas the Federal only requires that it relateii. Present Sense Impressions

1. CA and Fed are different on this exception2. FRE § 803(b)(1) Broad

a. Rule : a statement by a declarant is admissible if:i. Statements describes or explains an event or

conditionii. Statement made at time declarant was

perceiving the event or immediately thereafter

b. Thus, can bring in statements regarding the conduct of others NOT JUST declarant

3. CEC § 1241 Narrowa. Rule : a statement by a declarant is admissible if:

i. Statement offered to explain, qualify, or make understandable the conduct of the declarant

ii. Statement made while declarant was engaged in such conduct

b. Thus, can ONLY bring in statements made by declarant describing his own conduct

4. Difference Between CEC and FREa. CA only allows if declarant describing his/her own

conductb. Federal allows statements describing others conduct

iii. Excited Utterance v. Present Sense Impression1. Lag Time :

a. PSI requires the statement to be made either during or immediately after

b. Excited Utterance does not need to be made immediately after but while declarant still under influence of startling event

2. Nature of Event: a. PSI the event does not need to be startlingb. Excited Utterance the event must be startling

3. Describe v. Relate (Federal Only) a. Under Fed, PSI must describe the eventb. Under Fed, Excited Utterance must just relate to the

eventiv. State of Mind

1. General :

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a. When a direct assertion of SOM need exception; When an indirect assertion of SOM:

i. Non-hearsayii. Must be relevant

b. Direct “I am angry”i. Hearsay – an out of court statement offered to

prove the truth of the matter assertedii. This is the kind of statement that this exception

applies toc. Indirect “I am from Mars”

i. Not hearsay – just inferring someone’s state of mind from a statement they made

d. States of Mind Allowed:i. Belief

ii. Emotioniii. Designiv. Plan/Intentv. Pain

vi. Bodily Healthvii. Mental Feeling

e. CA Trustworthiness Requirement CEC § 1252i. For both present and past SOM, CA requires that

the circumstances indicate trustworthiness2. Statements of Present State of Mind

a. FRE § 803(3)i. Rule : statement of declarant’s present SOM is

admissible UNLESS:1. Statement of memory or belief to prove

the fact remembered or believed, unless it relates to a will.

ii. This exception covers both physical and emotional feelings

iii. Present SOM admissible to prove:1. Past, present, and future SOM; AND2. Present or future conduct of declarant

a. NOT 3rd Personb. CEC § 1250

i. Rule : statement of declarant’s present SOM is admissible when:

1. Evidence offered to prove declarant’s SOM at that time or any other time when it is at issue in the action; OR

2. Evidence offered to prove or explain acts or conduct of declarant

ii. Except:

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1. Statement of memory or belief to prove the fact remembered or believed

iii. Remember CA trustworthiness requirementiv. Present SOM admissible to prove:

1. Past, present, and future SOM of declarant; AND

2. Present or future conduct of declarantc. To Prove Future Conduct

i. Rule : statements of present SOM are admissible to prove that declarant subsequently acted in accordance with that SOM

ii. Joint Conduct1. Courts will allow statements to prove

conduct of person other than declarant2. Rule : a statement of present SOM is

admissible to prove the future conduct of not only the declarant but of anyone else described in that statement

a. Ex : “I am going to SF with Arin”d. To Prove Past Conduct

i. Both CA and Federal do NOT allow statement of present SOM to prove past conduct

1. Exception ONLY under Federal : cases involving declarant’s will

3. Statements of Past State of Mind CEC § 1251a. CA ONLY

i. Ex : “I believed that the route was the shortest route”

b. Rule : statement of declarants past SOM is admissible if:i. Declarant is unavailable

ii. SOM is at issue in the action and not offered to prove any fact other than SOM

iii. Must be trustworthyc. NOT admissible to prove:

i. Past, present, or future conduct of declarantii. Future conduct of third party

d. Is it admissible to prove present or future SOM?e. NOTE : applicability to physical condition

v. Physical Condition1. Rationale:

a. No purpose in lyingb. You want to get better so you will tell the Dr. the truth

2. Federal FRE § 803(4)a. Rule : statements made for the purposes of medical

diagnosis or treatment are admissible so long as they are pertinent to diagnosis or treat

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b. This includes:i. Medical History

ii. Past or Present Symptoms; ORiii. Cause

c. Statement can be made to:i. Physicians

ii. Physicians Assistantsiii. Nursesiv. Emergency Room Intake Receptionist

3. California NO EXCEPTIONa. However, can be admitted under the past state of mind

exception discussed aboveb. Broader than the Federal Rule:

i. Does not have to be spoken to persons for diagnosis or treatment

1. Ex : can be a statement of a past physical condition to a friend over a beer

c. NOTE : since under 1251 (past state of mind) MUST have unavailability (of who?)

4. California v. Federala. ONLY Federal must be for diagnosis or treatmentb. Cause of Physical Condition :

i. Federal statement describing the cause to physical condition admissible if reasonably pertinent to treatment or diagnosis

ii. California no such admissibility1. Thus, only declarants description of her

physical condition admissible, but NOT cause

c. Unavailability NOT required under Federali. Under CA:

1. Required for past physical condition2. Not required for present physical

conditiond. Trustworthiness ONLY required in CA

vi. Past Recollection Recorded FRE § 803(5) / CEC § 12371. Rule : a memorandum or record can be read into evidence if:

a. Witness has no present recollection of what he said;b. Statement was made or adopted by witness;c. Written record made immediately after incident

while FRESH in memory;d. Witness prepared to swear they took it down

accuratelye. CA ONLY writing must be authenticated

2. Proponent v. Opponent of Evidence:

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a. Proponent is only allowed to have the document read into evidence

b. Opponent is allowed to offer the document into evidence

3. NOTE: a. Usually comes up with police or investigative reportsb. One of the only hearsay exceptions that requires the

declarant to be in court4. Present Recollection Refreshed

a. NOT a hearsay exceptionb. Rule : can refresh a witness’s recollection with anything

(i.e. song, paper, report, snuff)c. HOWEVER

i. When you refresh a witnesses recollection the other side gets to see what is used to refresh

vii. Business Records1. FRE § 803(6)

a. Rule : business records will be admissible if:i. Writing made in the course of a regularly

conducted business activityii. Must be recorded

iii. It was the regular practice of the business to make that record (not just for litigation)

1. Look to the purpose of the person’s job2. For employees within the scope of

employment3. Ex : Dr. takes down details of accident

from patient; all that is allowed is what is need to fix the injury NOT statements of liability

iv. Record made at or near time of event by a person with knowledge

v. Person who writes it must be under a business obligation to do so

vi. Must be trustworthy:1. Must ask whether or not this was made

for purposes of litigation2. If self-serving (i.e. an accident report

made after the fact from one party’s point of view)

3. Court looks to the circumstances in deciding whether or not there is sufficient trustworthiness

2. CEC § 1271a. Rule : records will be admissible if:

i. Made in the regular course of business

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ii. Writing made at or near in time to the eventiii. Custodian of records testifies to the identity and

mode of its preparation; ANDiv. Must be trustworthy

3. Absence of Business Records FRE § 803(7) / CEC § 1272a. Rule : absence of an entry will be admitted if:

i. It was in the regular course of business to keep records

ii. Lack of entry being used to show non-occurrence of the event

iii. Source and method indicate trustworthinessd. Admissions

i. Generally :1. Difference in Title:

a. Under Federal this is an exemptionb. Under CA this is an exception

2. Must be offered by opponent cannot offer them yourself3. Admission is anything a party has ever communicated sought

to be introduced against that party at trial4. Only applies to party’s in the case NOT witnesses5. NOTE: although a party’s statement or conduct is an admission,

may still be disallowed under other rulesa. Ex : plea or offer to plea may be an admission but

excluded by another rule6. 5 Types of Party Admissions:

a. Individual (Regular) Admissionsb. Adoptive Admissionsc. Authorized Admissionsd. Vicarious (Employee) Admissionse. Co-Conspirator Admissions

ii. Individual Admissions FRE § 801(d)(2)(A)/CEC § 12201. Rule : admissions or statements by party opponents are

admissible against thema. Party CANNOT introduce their own statementb. Essentially, any statement made by a party at any time

is admissible as an admission if relevant and offered by opposing party

2. NOTE: in criminal trials, D cannot introduce admissions made by the Prosecution; however, the Prosecution can introduce admissions made by the D

iii. Adoptive Admissions FRE § 801(d)(2)(B)/CEC § 12211. This is essentially a party’s reaction to another person’s

statement or conduct when it is reasonable to treat the party’s reaction or inaction as an agreement with what was said

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2. Rule : third party statements will be attributed to the party in the litigation if the party manifested an adoption or belief in the truth of the statement

a. Must be established by a preponderance of the evidence as determined by the judge

b. Using this, the opposition can introduce BOTH:i. Statement by the D; AND

ii. Statement by the Third Partyc. LOOK FOR:

i. “yes, I agree with you”3. Admission by Silence

a. Rule : silence can lead to an adoptive admission if a reasonable person under the circumstances would have responded to the third party statement

b. NOTE: this is not a separate exception, but included in this exception through “words or other conduct”

iv. Authorized Admissions 1. Rule : statements made by an individual authorized to make

statements for a party concerning the subject are admissiblea. Must be established by a preponderance of the

evidence as determined by the judgeb. Ex : Press Secretary allowed to speak for President

2. The rule only covers statements made by agents who have speaking authority

a. Both made by agents to their principals AND agents to third persons

3. To prove authority:a. In CA statement CANNOT be considered (only non-

hearsay evidence)b. In Fed statement ALONE not enough; need other

evidence4. Both require employment at time of statement

v. Vicarious Admissions 1. For purposes of the EXAM, CA and Fed are the SAME2. Rule : statements made during the course and within the

scope of employment are admissible regardless of the employee’s potential liability

a. DOES NOT allow statements by employees after they are fired

b. NOTE: this includes people not explicitly authorized to speak

3. Right to speak arises out of the nature and scope of the employee’s duties

vi. Co-Conspirator Admissions 1. Rule : statements of co-conspirators are admissible if:

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a. Party is a co-conspirator talking about the criminal enterprise

b. Statement made during the course of the conspiracyc. Statement made in furtherance of the conspiracy

2. NOTE: confessions made to the police are NOT in furtherance or during the conspiracy

a. Once you have been arrested, you are taken out of the conspiracy

3. Partnership Admissions:a. A similar ruleb. Rule : any statement made by one partner within the

scope of the partnership, about the partnership, and during the partnership can be admitted against all

e. Prior Inconsistent Statementsi. General :

1. This exception is also used for impeachment of a witnessa. NOTE : under FRE for impeachment the statement is

admissible even if not made under oath2. Federal is more limited3. California is very broad

ii. Federal FRE § 801(d)(1)(A)1. Rule : prior inconsistent statements will be admitted as truthful

if:a. Declarant testifies at trial and is subject to cross-

examinationb. Previous statement was given under oathc. Previous statement made at a:

i. Trial;ii. Hearing;

iii. Other Proceeding; ORiv. Deposition

iii. CA CEC § 12351. Rule : prior inconsistent statements will be admitted as truthful

if:a. Declarant testifies at trial; b. However, cannot be used UNLESS:

i. Witness has a chance to explain the inconsistency

ii. Witness has not been excused from further testimony; OR

iii. Interests of Justice require otherwiseiv. Federal v. CA

1. Under the Federal the statement must be under oatha. CA has no such requirement

2. CA does not require the formal setting that the Federal doesf. Prior Consistent Statements

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g. Prior Identificationi. General :

1. Both CA and Federal require availability of witness2. CA much more restrictive than Federal

ii. Federal FRE § 801(d)(1)(C)1. Rule : the prior identification is admissible if:

a. Declarant is on the standb. Declarant testifies at trial or hearing and is subject to

cross-examinationc. Statement is of identification of a person after

perceiving the person2. Does not matter whether or not the witness can now identify

the person in court3. No timing issues or swearing to the accuracy of the statement

iii. CA CEC § 12381. Rule : the statement is admissible if:

a. Statement would have been admissible if made by him while testifying

b. Declarant is on the standc. Statement is of identification of a person who

participated in crime or other occurrenced. Made soon after occurrence

i. NOTE : Time limitation that is not existent in Federal Rules

e. Witness must first testify that they made the identification and it was a true reflection of his opinion at that time

i. Must swear to the accuracy of the identification2. Even if the witness does not remember it now it is admissible

a. NOTE : this is the main difference between this an Past Recollection Recorded

iv. CA v. Federal:1. Both require prior identification have been made by someone

who is now a witness in court2. CA Requires:

a. Similar to past recollection recordedb. Witness on the stand now, be able to say, that the time

they made the identification it was a true reflection of their opinion

h. Expanding Hearsay Exceptionsi. General :

1. ONLY in the Federal Rules2. NO CA equivalent

ii. Rule : an otherwise hearsay statement is admissible if:1. Most probative piece of evidence on the issue that the

proponent can reasonable get; (necessary)

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2. Offered to prove a material fact3. Made under circumstances that suggest its trustworthiness

(reliability)4. Proponent tells opponent in advance so they have a chance to

prepare and counter (fair)i. Hearsay and the Confrontation Clause

i. General 1. Confrontation Clause gives the defendant a right to confront

accusers/a witness when he is presenting evidence against defendant

a. Becomes an issue in criminal cases, where admission of hearsay prevents defendant from being able to cross-examine or confront witness

b. Serves as an additional check against hearsay!2. Rule : A D in a criminal case has the right to confront any

prosecution witness; even prosecution witnesses not brought to court but have their evidence offered by way of a hearsay exemption or exception

a. Ex : witness makes excited utterance; does not come to court; D can make the claim that their statement was testimonial

3. Hearsay must be testimonial for confrontation to apply (see below)

4. Note evidence that qualifies under other established hearsay exceptions automatically satisfies confrontation

ii. Old Factors 1. State could prove that hearsay was admissible in a criminal

trial without violating confrontation clause if:a. Necessary evidence otherwise unavailable except for

hearsay (perhaps because of defendant’s criminal actions)

b. Trustworthy more reliable it is, less likely court finds it violates confrontation

2. This is not clear law, do we need to know this?iii. Testimonial Requirement

1. Rule : Only testimonial hearsay is subject to confrontationa. If a statement is testimonial, declarant is considered a

“witness” which defendant has the right to confront2. What is Testimonial?

a. Rule : hearsay is testimonial (and therefore subject to confrontation) only if declarant is aware that statements may be subsequently utilized in criminal prosecution

i. Testimony preliminary hearings, jury testimony, former trial testimony, police interrogation, police reports

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ii. Non-testimony business records, statements made in furtherance of conspiracy

b. Emergency statements are not testimoniali. If declarant makes statements to get assistance

in an on-going emergency, statements are non-testimonial (statements to stop an on-going crime)

1. 911 call = non-testimonial, but info solicited afterward during police investigation is testimonial

ii. Is declarant talking about what is happening (emergency non-testimony) or what happened (testimony)?

3. The line here is fuzzy4. Exceptions to Testimonial Evidence (admitted despite

confrontation problem)a. Dying Declarationb. Declarant is unavailable but defendant had an

earlier chance to cross-examinec. Forfeiture Rule defendant loses confrontation right

if he is the reason why witness is unavailablei. Defendant killed witness or somehow had intent

to make witness unavailable1. Killing witness in heat of passion does not

trigger forfeiture of confrontation rightiv. Due Process

1. Rule : Defendant should not be denied constitutional right to present witnesses by hearsay rule if such evidence is:

a. Necessary to the caseb. Otherwise trustworthy

2. Hearsay rules cannot be applied mechanically if they violate defendant’s due process right to bring witnesses!

a. Defendant has a right to offer in legitimate evidence and rules of evidence are trumped by defendant’s constitutional rights

X. Character Evidencea. Generally

i. Evidence referring to character is used to attack credibility of that witness

ii. 3 ways to show character:1. Specific acts

a. Most probative and used to prove noticeb. Ie. Witness says “D is a saint.” P offers evidence

showing that D kicked his dog and asks if witness knew.i. If Yes maybe W lies about D

ii. If No maybe W doesn’t know D so well

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2. Opinion3. General Reputation

a. Ie. If defendant calls witness to say how honest he is, prosecution may rebut with evidence of a theft arrest conviction not necessary, arrest relevant to reputation!

b. Character Evidence used when Character Is Materiali. When character evidence is a material issue (ultimate thing being

proven) then character evidence can be used.1. We are afraid that if defendant was like that in the past, they

will be like that in the future/present different than using evidence of character traits in the past to prove/show that someone did something now.

2. Note rules are same in both criminal/civilii. Character evidence is admissible if proving:

1. Negligent Entrustmenta. Employer was negligent in entrusting employee to use

reasonable care in job employee’s character is now material issue

b. Character traits puts employers on notice that their employees may be negligent or dangerous

i. Ie. Showing employee went to work drunk in the past

c. If also bringing negligence claim, then for limited purpose of showing neg. entrustment may require limiting instruction

2. Defamationa. May use character evidence to show what reputation

was prior to defamation/how much damages should be3. Child Custody (parent traits)4. Wrongful Death (measure damages)

iii. Evidence that can be used:1. Common specific acts2. Federal specific acts, reputation, opinion3. California specific acts, reputation, opinion

c. Character Evidence Used to Prove Propensity (circumstantial evidence)i. General Rule : Cannot offer evidence of a person’s character to prove

propensity.1. Propensity inference that because a person did/does

something in the past, he likely did it on this occasion.a. Considered prejudicial

2. Exception:a. Impeaching witness credibility (see below)

ii. Civil Rules1. Can never use prior acts to show someone did something on a

particular dayiii. Criminal Rules

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1. Character of the Defendanta. Mercy Rule : Defendant may offer evidence to show

traits of his character BUT this allows prosecution to rebut/cross-examine and do the same (opens the door!)

i. Burden of proof is reasonable doubt, so character evidence may help defendant beat this

ii. Relevancy requirement character evidence must be relevant to the charges

1. No evidence of non-violence for a fraud charge

iii. Rules on Type of Evidence Allowed Under Mercy1. Common:

a. D reputation (not other 2?)b. P rebut with reputation, specific

acts2. Federal:

a. D reputation, opinionb. P rebut with reputation,

opinion, specific acts (DOUBLE CHECK SPECIFIC ACTS)

3. California:a. D reputation, opinionb. P rebut with reputation,

opinion, specific acts4. Note P rules are for rebuttals – if

prosecution offers witness of defendant’s character in rebuttal, then defendant can cross-examine about specific acts!

5. Is this correct prosecution can cross-examine about specific conduct, but not rebut with specific conduct evidence?

2. Character of the Victima. Mercy Rule also allows defendant to offer evidence of

victim’s character if relevant to chargei. Danger opens door for P to offer rebuttal

about victim’s character AND defendant’s character!

1. Evidence about defendant’s character introduced must be relevant to what defendant is seeking to prove by attacking victim’s character cannot be unrelated character evidence.

a. Ie. If D challenge’s V’s character for violence, P can offer evidence about D for violence

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b. Rules on Types of Evidence Allowed for Evidence About Victim

i. Common:1. D reputation

ii. Federal:1. D reputation, opinion2. P rebut with reputation, opinion,

specific actsiii. California:

1. D reputation, opinion, specific acts2. P reputation, opinion, specific acts

c. Homicide Rule (FEDERAL ONLY)i. If defense claims victim was aggressor (self-

defense), prosecution may rebut to show victim’s peaceful character

1. P may use reputation, opinion (no specific acts)

2. Does not apply in CA defendant cannot just claim self-defense, must prove specific act/evidence showing it

3. Exceptions to Propensity Rulea. Exceptions where character evidence of past acts is

allowed to show likelihood of current act:i. Sexual Assault/Sex Crimes

1. Federal prior sex crimes of similar nature or child molestation

2. California Prior sex crimes or child molestation or domestic violence

ii. Impeachment1. Admissible when offered to attack

witness credibility (see below)iii. Character to Prove Something Other than

Propensity1. Identify relevant issue for which evidence

is being offered and then:a. Does prejudicial impact outweigh

probative value?b. Did proponent of the evidence

prove by preponderance of the evidence that the defendant committed the act seeking to be proved?

2. Evidence Allowed:a. Common specific actsb. Federal specific actsc. California specific acts

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3. Use to prove:a. Motiveb. Intentc. Knowledged. Preparatione. Identityf. Absence of Mistake/Accidentg. Modus Operandi (unique criminal

signature)4. Modus Operandi Foundation Required

a. Before showing modus operandi, must show by preponderance of the evidence that D was involved in past, related crime!

b. Doesn’t matter if they were acquitted must just show signature crime element and that D committed each of these crimes under preponderance of evidence

d. Habiti. No longer character evidence if can prove defendant did something

every day1. Much higher probative value (but still see if prejudicial impact

outweighs); more admissible than character evidenceii. Relevance important habit/routine must be relevant to prove

person in current situation operated in conformity with past habit1. Business Custom or “Routine Practice”2. Individuals Custom or Habit

XI. Witness Impeachmenta. Generally

i. When witnesses are introduced, credibility becomes an issue. Also applies when defendant takes the stand.

ii. Dishonesty vs. Untruthfulness1. Dishonesty is broader

a. Ie. Stealing is dishonest but not untruthful (if there is no lying involved)

2. For credibility, we focus on untruthfulness.3. How do we know if probative value outweighs prejudicial?

a. Crimes like perjury/fraud have very high probative value

i. Under federal, crimes involving dishonesty are always probative

b. Other crimes may be admitted but if unrelated to truth-telling, prejudicial impact may outweigh probative value

iii. 5 Methods of Impeachment

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1. Bias2. Mental Defects3. Character for Untruthfulness

a. Impeachment by Reputation/Opinionb. Impeachment by Prior Bad Actsc. Impeachment by Prior Convictionsd. Impeachment by Prior Untruthful Acts

4. Specific Contradiction5. Prior Inconsistent Statements

b. Biasi. Evidence that witness may have reason to not give truthful testimony

ii. Rule : Bias is always considered material and is never collateral.1. Can use extrinsic evidence to impeach witness over bias2. Common cross-examining witness first requires laying

foundationc. Mental Defects

i. Any sensory/mental defect that might affect witness capacity to relate events is admissible to impeach.

1. Psychological2. Physical (includes drug/alcohol use)3. Educational, etc.

ii. Attorney may resort directly to extrinsic evidence without foundation1. Capacity is always relevant and never collateral.

d. Character for Untruthfulnessi. Impeachment by Reputation/Opinion

1. Credibility of witness may be attacked/supported by evidence of reputation and opinion if:

a. Evidence refers to witness’ truthfulness/untruthfulnessb. Evidence only admissible AFTER witness’ character has

been attacked by opinion/reputation evidence2. Federal/California same rules, may use reputation/opinion

evidence after witness’ truthful character is attackeda. Common only reputation after character attacked

3. Before allowing reputation/opinion evidence, must lay foundation show how new witness being introduced is acquainted with/knows about witness being impeached

ii. Impeachment by Prior Bad Acts1. Federal not allowed by extrinsic evidence, but if related to

truthfulness, may inquire on witness cross-exam if:a. (1) Prior act reflects on truthfulnessb. (2) Asked in good faithc. (3) Evidence is asked about on cross, and not offered

through extrinsic evidencei. Can only cross-examine, not introduce

documents or other witnesses who observed prior bad act

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d. (4) Probative value substantially outweighs prejudicial impact

2. Californiaa. Criminal Case law says prior acts admissible to

examine credibility of witness (other than accused) as long as relevant to dishonesty

b. Civil Prior specific bad acts NOT admisibleiii. Impeachment by Prior Convictions

1. Felonies a. Witness is NOT the Defendant

i. Federal Any felony admissible in civil/criminal

1. To exclude, must show low probative value substantially outweighed by high prejudicial impact

a. Demanding standard to keep outii. California Admissible unless pardoned

1. Applies to civil/criminalb. Witness IS the Defendant

i. Federal Any felony admissible in criminal 1. To include, must show probative value

outweighs prejudicial impact2. Burden is on prosecutor for this, standard

is NOT substantially outweighs (burden on government not as high)

ii. California Must meet Beagle Factors and be crime of moral turpitude

1. Beagle Factorsa. Similarity of prior conviction to

current chargei. More similar = more

prejudicialb. How long ago was the prior crime?

i. Older = less probativec. Does prior conviction reflect on

honesty/integrity of defendant?i. Relevant to credibility?

d. Would fear of jury hearing prior conviction prevent D from testifying?

2. Moral Turpitudea. Is MT possession with intent to

sell, aggravated child neglect, etc.b. Is NOT MT mere possession,

simple child neglect, battery

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3. Castro Rule in criminal cases, no prior evidence of past convictions is admissible unless it is logically relevant

a. MT requirement exists to show relevance of conviction evidence

4. For civil cases felonies in CA admissible

2. Misdemeanors a. Federal Admissible as long as they involve dishonesty

i. Applies to criminal/civilb. California

i. Criminal Admissible if relates to dishonestyii. Civil Not admissible

3. Federal 10-Year Limitation Rule evidence of prior conviction is inadmissible if more than 10 years has passed from date of conviction or date of release (whichever later) unless probative value substantially outweighs prejudicial

4. Common Law allows any specific acts that tend to discredit witness (including, but not limited to, felonies)

e. Specific Contradictioni. May use evidence of specific contradiction to attack a witness’

credibilityii. Federal

1. Collateral Matter Rule If evidence is just relevant to attacking witness credibility and has no independent relevancy to the case, you cannot introduce extrinsic evidence about contradiction (including going to another witness)

a. Saves time don’t want to allow impeachment just because witness was wrong about something

2. If matter is not collateral, may prove specific contradiction through extrinsic evidence.

a. Ie. Witness A testifies she saw D shoot victim; to impeach A, D offers witness B who says C shot victim not collateral because who shot victim is relevant to case!

iii. California Must be relevant; probative value substantially outweighs prejudicial

iv. Common no extrinsic evidence allowedf. Prior Inconsistent Statements (PIS)

i. Introducing evidence that witness made prior statements inconsistent with testimony not offered for truth, but to show that witness said inconsistent things about what he is testifying about

1. Can use any statement (oral, taped, written, sworn, unsworn) but must have been made by witness himself

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ii. Interest of Justice Exception for both Federal and CA, extrinsic evidence of PIS will be admissible if interest of justice otherwise requires!

1. If witness is unavailable or other hearsay exception applies, foundation not required

iii. Federal extrinsic evidence of PIS not admissible unless:1. Option 1 (both required)

a. Give chance for witness to deny/explain ANDb. Give opposing party chance to question witness on

statement in question- OR

2. Option 2a. Lay foundation (time/place/person while witness is on

stand) only necessary if using extrinsic evidence??3. In other words if you give witness opportunity to explain

statement, you don’t first need to lay foundation but need to eventually to use extrinsic evidence??

4. Presentation of writing not required to show witness document but must present to opposing counsel if requested

5. Note under Federal rules, hearsay declarant is like a witness, so hearsay declarants can be impeached by all impeachment methods

a. No foundational requirement for extrinsic evidence iv. California extrinsic evidence of PIS not admissible unless:

1. Option 1a. Give chance for witness to deny/explain ANDb. Witness not yet excused

- OR2. Option 2

a. Lay foundation (time/place/person while witness is on stand)

3. Presentation of writing not required to show witness document but must present to opposing counsel if requested

v. Common To admit extrinsic evidence of PIS:1. Lay foundation (time/place/person while witness is on stand)2. Used to have to present witness with writing before

impeachingg. Rehabilitating a Witness

i. Once witness has been impeached, can use rehabilitation evidence to try and revive him.

1. Federal and California rules are the same.2. Note generally, cannot bolster/support witness credibility

with evidence relevant only to that until after impeachmentii. Attacks on Witness’ Character

1. Cannot give evidence about witness’ character for truthfulness without first having witness character attacked.

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2. Usually limited to opinion/reputation, but if witness’ credibility attacked by prior bad act, may be able to revive credibility by prior good act.

iii. Attacks on Witness’ Statements 1. Cannot give evidence about PIS before witness’ character has

been attacked.2. Must be attacked in one of two ways:

a. Recent fabrication (other side accuses witness of having motive to make up what he is saying after the time it allegedly occurred)

i. Rule : Statements consistent with witnesses’ current testimony are admissible if they were made before the date of witness’ alleged motive to lie. They are inadmissible after this date.

b. Claim of PIS (other side accuses witness of making prior statement inconsistent with what witness is now saying in present testimony)

i. Statements consistent with witness’ current testimony are admissible if they were made before the date of witness’ alleged PIS. They are inadmissible after this date.

1. Note Federal rule is broader, does not require prior inconsistent statements to have been made under oath to be admitted.

XII. Best Evidencea. Generally

i. Rule : When a witness testifies as to the contents of a writing, the original must be produced or there must be an exception.

1. Rule applies only when proving the content of a writing/recording/photograph any form of recorded information technically qualifies as a writing

a. Ie. Letters, receipts, account books, blueprints, movies, X-ray plates, audio tapes, CDs, oral recordings, etc.

i. Duplicates highly accurate reproductions (ie. Computer printout)

ii. Secondary Evidence not duplicates or originals (could be typewritten or handwritten copies)

b. Ie. W is a radiologist who examined injury X-ray. Did not bring X-rays, but testifies what he saw on the X-ray. Triggers Best Evidence need to see the X-ray!

2. Rule does not apply when witness is testifying from his own memory (not what he saw on the writing)

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a. Ie. W testifies about earnings of his company. Did not need to produce accounting books because he had knowledge of earnings before they were recorded.

b. Look to see whether information was available to witness before or after it was recorded if after, may be Best Evidence issue

ii. Note if a writing is collateral (minor issue in trial) then best evidence may not apply/be necessary

b. Federali. To prove the contents of a writing, recording or photo, the original

writing is required.1. Note if the party for whom the contents of the writing is

being offered against gives testimony about it, then BER does not apply (don’t need original)

a. Applies only to written/transcribed admissions, not oral admissions

ii. Exception Duplicates are admissible as originals unless:1. Dispute related to authenticity of original; OR2. Circumstances would be unfair to admit duplicate

iii. Exception Secondary Evidence (includes oral statements)1. Other evidence (not original or duplicate) is allowed about

contents of a writing if:a. Originals lost or destroyed (not in bad faith);b. Originals not obtainable by judicial process;c. Original in possession of opposing counsel and he will

not produce it; ORd. Writing is not closely related to issue (collateral)

iv. Note if something is public record, you don’t need an original and a copy is sufficient

c. Californiai. No rule on duplicates

ii. Secondary Evidence1. Written Written secondary evidence admissible unless:

a. General dispute concerning material term and justice requires exclusion OR

b. Admission would be unfairc. Note Remember “written” here includes photos!

2. Oral Oral secondary evidence admissible only if:a. Party does not have a copy; ANDb. Original lost, destroyed or collateral

i. Must not be fault of the party3. Criminal In addition to written evidence rule, secondary

evidence also inadmissible in criminal trial if:a. Original in possession of proponent; ANDb. Proponent has not made original available to other side

at or before trial.

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i. Does not apply to duplicates, collateral matters, public records

iii. Written secondary evidence is better than oral secondary evidenced. Common

i. Duplicates admissible as originals if original unavailable.ii. Secondary Evidence burden on proponent to prove reliability

XIII. Authenticationa. Rule : Evidence is not self-authenticating; proponent of the writing must

prove through extrinsic evidence that the writing is genuineb. Telephone Calls

i. Federal rule, probably also applies to CA1. Evidence that call was made to number assigned by phone

company and:a. If person Circumstances (including self-ID) show the

person answering to be the one who was called.b. If business call related to business transacted over

phone2. Rule only deals with calls made, not calls received

c. Federali. Authentication Methods

1. Testimony of witness with knowledge2. Non-expert testimony on handwriting (ie. By spouse)3. Comparison with authentic writing4. Distinctive characteristics5. Voice ID6. Telephone Conversations

a. Also e-mails Federal does not allow self-authentication of these

7. Public Records8. Ancient Documents (20 years or older = authenticated)

ii. Self-Authentication No other evidence required1. Public documents under seal/certified2. Foreign public documents3. Official publications4. Newspapers and periodicals5. Trade inscriptions (ie. Computer with Apple logo)6. Commercial paper7. Acknowledged documents

d. Californiai. Rule : Mere recitation of a name is insufficient to authenticate a

writing1. Original must be authenticated before secondary evidence is

admissible2. Handwriting can be authenticated via expert or someone

familiar

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3. Reply Rule writing received in response to a letter to the alleged author is authentic

4. Authentication by Content Writing which has contents only the alleged author would know is authenticated

ii. CA has no trademark rules, so difficult to get evidence of this ine. Common mere recitation of a name is insufficient to authenticate a writing

XIV. Privilegea. Generally

i. Privilege is only asserted during a legal proceeding when a party attempts to force disclosure of a communication for evidence

ii. Process1. Did the communication take place within the relationship

required for the privilege?a. Relationship must exist first to exert privilege!

2. Was the communication confidential?a. If holder reveals it no confidentiality!

3. Who can claim the privilege?4. Has the proponent acted in a way to destroy the privilege?

iii. Impersonators1. If client communicates under reasonable belief that he is

talking to someone under a privileged relationship, then privilege still applies.

a. Ie. If someone pretends to be a lawyer, client may still be able to assert privilege if he believed it was true.

iv. Death1. Federal looks like all privileges survive death

a. Except possibly marital privilege2. California Privilege does not survive death.

b. Attorney-Client Privilegei. Rule : A/C privilege is impenetrable.

1. Applies not just to attorney but also attorney’s agents (law clerks, secretaries, etc.)

ii. Only statements made between lawyer and client for purpose of services/advice are considered privileged

iii. Holder client holds the privilege1. Note privilege only applies to statements between

lawyer/client; this does not mean that the actual information said in the statements cannot come out in trial

a. Does not apply to objects2. Note Attorney who discloses privileged communications has

not waived privilege because the privilege is not his to waive (but he will have violated ethical rules).

3. However, attorney may claim privilege on behalf of client.iv. Privilege covers confidential information

1. If statement is said publicly, it won’t be privilegedv. Special A/C Rules

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1. Identity Rule Attorney may not be compelled to reveal identity of his client IF there is a confidential issue surrounding identity

a. Does not extend to others who may know the identity from other circumstances ie. Subpoenaing bank records to discover client name

2. Hiring Rule Information about employment of attorney is confidential (if there is a confidential issue involved)

a. However, privilege about employment will not apply to hiring a lawyer for others

3. Physical Evidence Rule A/C privilege only applies to communications, so privilege does not extend to objects given to attorney by client

a. Documents may only be privileged IF privilege would have prevented the government from subpoenaing the documents in the first place

i. Don’t want lawyers to become depositaries!b. Communication regarding object is still confidential

(and attorney is not required to disclose client identity)c. Attorney may hold onto object, but if it is evidence, he

probably has to turn over or be charged with obstruction of justice

4. Eavesdropping/Disclosure to 3rd Party Rule privilege is not waived if a third party overhears the privileged communications (which were intended to be confidential) unless the client knew or should have known of the third party’s presence

5. Crime-Fraud Rule Privilege will not extend to communications where the client seeks/obtains lawyer’s services to enable or aid anyone to commit or plan to commit a crime

a. But if client didn’t solicit/ask for help to commit crime and lawyer just offers services anyway, then privilege for client will still exist!

6. Attorney Agent Rule Persons obtained by the attorney for the sole purpose of assisting with the litigation are covered by privilege

a. Includes translators, doctors (to testify), engineers, etc.b. Presence of third party must be necessary for the

performance of attorney7. Corporate Control Group Rule In the case of a company

lawyer, A/C privilege covers the control group (President, BOD, upper management)

a. Exception Employees outside the control group may also be covered if:

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i. Communication to attorney was made at direction of employee’s superiors AND

ii. Employee’s performance of his duties is the subject matter upon which attorney’s advice is sought (relates to litigation)

b. No individual privilege exists for employees communicating to company lawyers

i. Communications made on behalf of company privilege only applies to control group/those within the exception

c. No privilege exists for former employees8. Death of Client Rule

a. Federal privilege extends beyond death unless adverse to client’s interests

b. CA privilege extinguishes at death of client9. Other CA Rule privilege does not apply if attorney

reasonably believes disclosure is necessary to prevent death or serious bodily harm to an individual

vi. Work Product Privilege1. Work Product all items prepared by attorney in assisting

client’s case2. Rule work product is privileged unless there is “strong

need” for the materialsa. Must be more than mere inconvenience or expense (ie.

Death of a witness interviewed by opposition)vii. Client-Litigant Exception if a client sues a lawyer for malpractice

and then objects to use of communications divulged under A/C privilege as evidence, privilege is deemed waived

1. Otherwise attorney can’t defend himself.c. Patient-Physician Privilege

i. Structured similar to A/C privilegeii. Federal unsure if it exists, not established by common law

iii. California1. Civil privilege applies to confidential communications

made between patient and doctor, when patient sought out doctor for medical treatment

a. Extends to both observation and communicationb. If patient sought doctor for medical diagnosis (as

evidence for litigation), then privilege does NOT applyc. Patient-Litigant Exception for cases involving

personal injury of a victim, patient-physician privilege is waived so communication related to the matter can be revealed about patient’s injury/condition

2. Criminal no patient-physician privileged. Psychotherapy-Patient Privilege

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i. Rule : communication between a client and psychotherapist made for the purpose of seeking psychological treatment are confidential.

1. Applies to doctors, social workers, therapists, etc.ii. Holder patient holds the privilege and is the only one who can

assert it1. The doctor has no independent privilege and cannot assert it if

patient does not want to2. Like doctor-patient privilege, this privilege may be waived by

patient submitting her physical condition as an issue at triala. But must be more than asserting emotional distress

must be a substantial part of the case.iii. Patient-Litigant Exception applies only if emotional distress is

principal/significant claim in the case1. Claims limited to emotional distress may remove the privilege

(not generalized pain and suffering)a. Could be use of insanity, mental distress, any

psychiatric defenseiv. Dangerous Patient Exception if psychotherapist reasonably

believes patient is a danger to himself or others and disclosure is necessary to prevent harm, privilege will not attach to that session or future sessions.

1. Privilege still attaches to past sessions2. Confessions to past crimes do not undo the privilege3. Even if shrink does not reveal the danger, privilege still won’t

apply.v. Other Exceptions to the Privilege:

1. Crime/fraud involved2. Shrink appointed by court

e. Priest-Penitent Privilegei. Rule : communications between a priest and penitent are privileged.

ii. Holder both priest and penitent hold the privilege here1. Do not want to see a bunch of priests in jail

f. Marital Privilege 2 formsi. Marital Disabling Privilege (Prospective Privilege)

1. Purpose avoid destroying existing marriages2. Holder only wife (spouse not on trial) holds the privilege3. Only applies is husband and wife are married at date of

testimony4. California civil and criminal cases

a. Does not apply for sham marriages which exist only to prevent testimony

5. Federal criminal only, NOT civil6. Exception Victim’s Exception

a. Rule : Wife (spouse) cannot invoke privilege in a criminal case where:

i. Wife (spouse) is a victim;

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ii. Child of either spouse is a victim;iii. Third party victim is injured while defendant

spouse was committing a crime against wife (spouse)

b. Crime/Fraud privilege also does not apply if communication was made to enable or aid anyone in committing a crime or fraud

ii. Marital Communication Privilege (Retrospective Privilege) 1. Purpose encourage open and honest communications in a

marriage2. Applies if husband and wife were married at the time of the

communication and communication was made in confidencea. Communication must be made during official, legal

marriage if 5 minutes before wedding, communication not covered

b. No third parties can be present or not made in confidence

3. Holder both parties holda. In CA, wife (spouse) may be forced to testify if party

spouse wants them to4. Exception Victim’s Exception

a. Rule : Wife (spouse) cannot invoke privilege in a criminal case where:

i. Wife (spouse) is a victim;ii. Child of either spouse is a victim;

iii. Third party victim is injured while defendant spouse was committing a crime against wife (spouse)

b. Crime/Fraud privilege also does not apply if communication was made to enable or aid anyone in committing a crime or fraud

g. Reporter Privilegei. Federal reporter has no privilege to hide sources, court can hold in

contempt if refuses to giveii. California reporter has privilege to his info/sources and may not be

held in contempt for refusing to revealh. Governmental Privilege

i. Civil Trials1. Rule Government may assert privilege if:

a. Letter submitted from head of a federal department;b. Head of department understands his decisions; ANDc. Indication made that national security is at issue

ii. Criminal Trials1. Rule Government may assert privilege, but if the

information is relevant to the prosecution of a defendant,

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refusing to hand it over will violate due process and the case will be dismissed!

2. Nixon Rule Criminal defendant’s due process rights trump a general assertion of executive privilege

a. Courts balance due process vs. right of executive to keep something secret (means executive privilege is not absolute!)

b. Note asserting military or other government secrets may change this analysis

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