table of contents - orahte.comorahte.com/black_letter/evidence_a.pdf · evidence table of contents...

oorraahhtteeììggrroouupp©©

Second Look Series™ EVIDENCE

TABLE OF CONTENTS

I. RELEVANCE ……..…………………………..………………..………….…………....1 A. LOGICAL RELEVANCE ……………...……………………………………..….1 B. PROPOSITION 8 …………………………………………………………………1 II. FORM OF EVIDENCE ………………………………………………..……………….1 A. DOCUMENTS ……………………………………………………...……………..1 1. Authentication …………………………………………………..……………1 2. Best Evidence Rule ………………………………………………….………..2 3. Parol Evidence Rule …………………………………………………….……3 B. TESTIMONY ……………………………………………………………….…….4 1. Competency of the Witness ……………………………………………...…..4 2. Form of Examination of Witness ……………………………………...…….4 III. CATEGORY OF EVIDENCE ………………………………………………………….5 A. JUDICIAL NOTICE ………………………………………………………….…..5 B. HEARSAY ……………………………………………………………………...…5 1. Essay Approach ………………………………………………………………5 2. Definition …………………………………………………………..………….6 3. Not Offered for the Truth ……………………………………………...……6 4. Not Considered Hearsay under FRE: California Hearsay Exceptions …...6 5. Hearsay Exceptions …………………………………………………………..8 6. Sixth Amendment Right to Confrontation ……………………………..…11 C. CHARACTER ……………………………………………………………...……11 1. Substantive Purposes: Criminal Cases ………………………………..…..11 2. Substantive Purposes: Civil Cases ……………………………………..…..13 D. HABIT AND CUSTOM …………………………………………………………14 1. Miscellaneous Admissibility Issues ………………………………...………14 E. OPINION …………………………………………………………………...……14 1. Lay Opinion …………………………………………………………..……..14 2. Expert Opinion ……………………………………………….……………..14 F. IMPEACHMENT ………………………………………………………………..15 1. Convictions …………………………………………………………...……..15 2. Bad Reputation for Truth or Veracity …………………………………….15 3. Bias and Prejudice ………………………………………………….………15 4. Prior Bad Acts Involving Dishonesty ………………………………..…….15 5. Prior Inconsistent Statements ………………………………………...……15 6. Evidence of Poor Memory/Poor Sight ………………………………..……16 IV. PRIVILEGE AND WAIVER …………………………………………………...…….16 A. ATTORNEY-CLIENT …………………………………………………………..16 1. Corporate Clients …………………………………………………...………16


Second Look Series™ 2. Holder of the Privilege ………………………………………...……………16 3. Exceptions ……………………………………………………………….…..16 B. DOCTOR-PATIENT ……………………………………………………..……..16 1. Exceptions …………………………………………………………..……….16 2. Criminal Proceedings ………………………………………………..……..17 C. PSYCHIATRIST/PSYCHOTHERAPIST/SOCIAL WORKER ………..……17 D. CLERGY-PENITENT …………………………………………………..………17 E. HUSBAND-WIFE ………………………………………………………...……..17 1. Spousal Immunity ………………………………………………….……….17 2. Privilege for Confidential Marital Communication …………………...…17 3. When Neither Marital Privilege Applies ………………………………….17 F. SELF-INCRIMINATION ………………………………………………..……..18 G. WORK PRODUCT ………………………………………………………..…….18 1. Absolute Privilege …………………………………………………………..18 2. Qualified Privilege …………………………………………………………..18 3. Not Privileged ………………………………………………………...……..18 4. Expert Reports ……………………………………………………...………18 H. WAIVER ………………………………………………………………...……….18 1. Eavesdropper ………………………………………………………………..18 V. POLICY EXCLUSIONS ………………………………………………………………19 A. SUBSEQUENT REMEDIAL MEASURES ……………………………...…….19 B. PROOF OF INSURANCE ……………………………………………………....19 C. OFFERS TO SETTLE AND WITHDRAWN GUILTY PLEAS ……..………19 D. OFFERS TO PAY MEDICAL LEXPENSES …………………………...…….19 E. DOCTRINE OF COMPLETENESS ……………………………………….…..19 F. DOCTRINE OF LIMITED ADMISSIBILITY …………………………..……19


Second Look Series™

EVIDENCE 1

EVIDENCE

I. RELEVANCE

A. LOGICAL RELEVANCE Evidence if relevant if it has a tendency to make a fact that is of consequence in the determination of the case more or less probable. California requires the fact to be in dispute. 1. What proposition is the evidence being used to prove? 2. Is this a material issue in the case? 3. Is the evidence probative? B. PROPOSITION 8 California's Truth-in-Evidence amendment requires the admission of all relevant evidence, even that obtained in violation of an individual's constitutional rights. However, as the supremacy clause requires courts to enforce an individual's rights under the US Constitution, Proposition 8 has little effect and does not apply to: (1) the exclusionary rule; (2) hearsay right to confront; (3) limitations on character evidence concerning a victim in a rape case; (4) the preclusion of offering bad character evidence of a defendant before she opens the door; (5) the Secondary Evidence Rules; and (6) legal relevance.

II. FORM OF EVIDENCE A. DOCUMENTS 1. Authentication As a general rule, a writing or any secondary evidence of its content will not be received in evidence unless the writing is authenticated by proof that shows that the writing is what the proponent claims it is. The proof must be sufficient to support a jury finding that the document is genuine. a. Authentication by Pleadings or Stipulation The genuineness of a document may be admitted by the pleadings or by stipulation. b. Evidence of Authenticity (1) Admissions A writing may be authenticated by evidence that the party against whom it is offered has either admitted its authenticity or acted upon it as authentic. (2) Eyewitness Testimony


Second Look Series™ A writing can be authenticated by testimony of one who sees it executed or hears it acknowledged. The subscribing witness need not give the testimony. (3) Handwriting Verifications A writing may be authenticated by evidence of the genuineness of the handwriting of the maker. This evidence may be the opinion of a non-expert with personal knowledge of the alleged writer's handwriting of the opinion of an expert who has compared the writing samples of the maker's handwriting. Genuineness may also be determined by the trier or fact through comparison samples. (4) Ancient Documents A document may be authenticated by evidence that it is; (1) at least 20 years old; (2) is in such condition as to be free from suspicion as to authenticity; and (3) was found in a place where such a writing would likely be kept. (5) Reply Letter Doctrine A writing may be authenticated by evidence that it was written in response to a communication sent to the claimed author. (6) Photographs Are admissible only if identified by a witness as a portrayal of certain facts relevant to the issue and verified by the witness as a correct representation of those facts. (a) If not one can identify the scene, the photograph can be admitted upon a showing the camera was working properly at the relevant time and that the photograph was developed from film in the camera. (7) X-Ray Pictures, ECG etc. It must be shown that the process used is accurate, the machine was in working order, and the operator was qualified to operate it. Finally, the custodial chain must be established to assure that the X-ray has not been tampered with. c. Self-Authenticating Documents Certain writings are said to "prove themselves." Extrinsic evidence of authenticity is not required for the following: (1) certified copies of public records; (2) official publications; (3) newspapers and periodicals; (4) trade inscriptions; (5) acknowledged documents; (6) commercial paper and related documents; and (7) certified business records. 2. Best Evidence Rule



EVIDENCE 3

To prove the terms of a writing1, the original writing must be produced if the terms of the writing are material of the knowledge of a witness concerning a fact results from having read the document. a. Admissibility of Secondary Evidence of Contents If the proponent cannot produce the original writing in court, she may offer secondary evidence of its contents2 if a satisfactory explanation is given for the non-production of the original. Satisfactory Foundation Valid excuses for justifying the admissibility of the secondary evidence include: (1) Loss or destruction of the original; (2) The original is in possession of a third party outside the jurisdiction and is unobtainable. (3) The original is in the possession of a third party, who, after due notice, fails to produce the original. California Replacement California replaced the Best Evidence Rule with the Secondary Evidence Rule where secondary evidence is admissible as the original unless: (1) there is a genuine dispute as to the material terms of the writing; or (2) admission would be unfair. 3. Parol Evidence Rule If an agreement is reduced to writing, that writing is the agreement and hence constitutes the only evidence of it. Prior or contemporaneous negotiations or agreements are merged into the written agreement, and they are admissible to vary the terms of the agreement. a. Exceptions The patrol evidence rule does not apply in the following circumstances: (1) Incomplete or Ambiguous Contract Parol evidence is admissible to complete an incomplete an incomplete contract or explain ambiguous terms. (2) Reformation of Contract The rule does not apply where a party alleges facts entitling her to reformation3.

1 Which includes recordings, photographs, or x-rays. 2 For example: handwritten copies, notes, and oral testimony.


Second Look Series™ (3) Challenge to Validity of Contract Parol evidence is admissible to show that the contract is void or voidable, or was made subject to a valid condition precedent that has not been satisfied. b. Subsequent Modifications The rule applies only to negotiations prior to, or at the time of, the execution of the contract. Parol evidence is admissible to show subsequent modification or discharge of the written contract. B. TESTIMONY 1. Competency of the Witness The rules do not specify any mental or moral qualifications for witness testimony other than: (1) the witness must have personal knowledge of the matter about which she is to testify; and (2) the witness must declare she will testify truthfully. a. Infants The competency of an infant depends on the capacity and intelligence of the particular child as determined by the trial judge. b. Insanity An insane person may testify, provided she understands the obligation to speak truthfully and has the capacity to testify accurately. c. Judge and Jurors Presiding judge and jurors are incompetent to testify before the jury in which they are sitting. d. Dead Man Acts Most states have Dead Man Acts, which provide that a party or person of interest is incompetent to testify about a personal transaction or communication with the deceased, when such testimony is offered against the representative or successors in interest of the deceased. 2. Form of Examination of Witness a. Leading Questions Are questions that suggest the answer desired and are generally improper on direct examination. However, they are permitted on: (1) cross-examination; (2) to elicit preliminary matter; (3) when a witness needs aid because of loss of memory, immaturity, or physical or mental weakness; or (4) witness is hostile. b. Assumes Facts Not in Evidence 3 For example: arising from a mistake.



EVIDENCE 5

The question assumes something as true for which no evidence has been shown. c. Compound A single question that actually asks more than one thing. In a trial or deposition, the opposing party can object to such a question. If the objection is sustained, the question must be withdrawn and asked in a series of separate questions. Look for "ands'. d. Non-responsive Answers The witness's response constitutes an answer to a question other than the one that was asked, or no answer at all. e. Argumentative The question makes an argument rather than asking a question4. f. Asked and Answered When the same attorney continues to ask the same question and they have already received an answer.

III. CATEGORY OF EVIDENCE

A. JUDICIAL NOTICE Judicial notice is recognition of a fact as true without formal presentation of evidence. Courts take notice of indisputable facts that are either matters of common knowledge in the community or capable of verification by resort to easily accessible sources of unquestionable accuracy5. B. HEARSAY 1. Essay Approach a. Is there an assertion or communication? b. Was the statement made out of court? c. Who is the declarant? d. Is it offered for the truth of the matter stated? May be offered to prove relevant state of mind, impeachment, rehabilitation, or words that have legal significance. e. Does the exception to the hearsay rule apply? 4 For example: "Do you think that bloody glove just walked over there?" 5 For example: scientific facts.


Second Look Series™ f. A criminal defendant's Sixth Amendment right of confrontation requires exclusion of hearsay despite the application of a hearsay exception. Testimonial statements include pretrial statements that declarants would reasonable expect to be used in a criminal prosecution. 2. Definition Hearsay is an out of court statement offered for the truth of the matter asserted. Hearsay is typically excluded because it lacks reliability and hinders cross-examination. For the purposes of the hearsay rule, a statement is an oral or written assertion, or nonverbal conduct intended as an assertion. 3. Not Offered for the Truth a. Verbal Acts of Legally Operative Facts Out of court statements that have a legal significance. Evidence of such statements is not hearsay because the issue is simply whether the statement was made. For example: (1) Defamation, Threats. (2) Offer; Acceptance; Donation; Assignment.. b. Statements Offered to Show the Effect upon Listener A statement that is hearsay to prove the truth of the statement may still be admitted to show the statement's effect on the hearer or reader6. c. Statements Offered as Circumstantial Evidence of Declarant's State of Mind A statement that serves as circumstantial evidence of the declarant's state of mind is not hearsay as it is not offered for the truth, but to show knowledge or situation or lack of capacity. Hearsay Exception--Hillman Doctrine Declarant tells us directly what his state of mind is: "I feel happy" "I intend to do…" d. Nonhuman Declarations There is no such thing as animal or machine hearsay. There must be an out-of-court statement by a person. Time of day, radar readings, etc., are not hearsay. 4. Not Considered Hearsay under FRE: California Hearsay Exceptions a. Admission by Party Opponent 6 For example: notice, knowledge, providing motive.



EVIDENCE 7

Any statement by a party offered against that party at trial is non-hearsay under the Federal Rules. In sate proceedings, the statement fits within the exception to the hearsay rule for admissions of a party. (1) Adoptive Admission A party may expressly or impliedly adopt someone else's statement as her own. (2) Silence If a party fails to respond to accusatory statements where a reasonable person would have spoken up, her silence may be considered an implied admission, if it can be shown the defendant must have heard and understood the statement. (3) Vicarious Admission: Co-Parties Are not receivable against co-party, only against person making the statement7. (4) Principal-Agent/Partnership A statement made by agent during the scope of her agency, made during existence of employment relationship is admissible. (5) Co-Conspirators An out of court statement made by a co-conspirator in furtherance of a conspiracy, is admissible against other co-conspirators as a vicarious admission provided the statement was made at a time when the declarant was participating in the conspiracy and it is only admissible when the defendant has an opportunity to cross-examine the declarant. (6) Wrongful Death: California Only A statement of the deceased can be used against the family as though she were a party. b. Prior Statements of a Witness Under the Federal Rules, a prior statement by a witness is not hearsay if: (1) Prior Inconsistent Statement The prior statement is inconsistent with the declarant's in-court testimony and was given under oath at a prior proceeding. (2) Prior Consistent Statement The prior statement is consistent with the declarant's in-court testimony and is offered to rebut a charge that the witness is lying or exaggerating because of some motive and the statement was made before any motive to lie or exaggerate arose. 7 No California provision.


Second Look Series™ (3) Prior Statements of Identification The prior statement is one of identification of a person made after perceiving her. The witness must be on the stand. 5. Hearsay Exceptions a. Documentary (1) Past Recollection Recorded Where a witness states that she has insufficient recollection of an event to enable her to testify fully and accurately, even after she has consulted a writing given to her on the stand8, the writing itself may be read into evidence if a proper foundation is laid. The foundation must include proof that: (1) The witness at one time had personal knowledge of the facts in the writing; (2) the writing was made by the witness, at her direction or was adopted by the witness; (3) the writing was timely made when the matter was fresh in the witness's mind; (4) the writing is accurate; (5) the witness has insufficient recollection to testify fully and accurately. (2) Present Recollection Refreshed Present recollection is not a hearsay issue. Any writing may be used to refresh a witness's memory and they cannot read directly from it. (3) Business Records Business records are entries made in the regular course of business by a person who has a business duty to accurately record the information and who either has personal knowledge or receives the information from one person with personal knowledge and a business duty to accurately report. The entry has to have been made at or near the time of the transaction or event. California does not permit opinions or diagnoses to be admitted through business records, only acts and observations. (4) Official Records Records and reports of a public agency or office are admissible if the record was made at or near the time of the occurrence by one with a duty to accurately record the information. California prohibits the admission of opinions contained within such records. (a) Police reports Police reports cannot be used against a criminal defendant but can be used by a criminal defendant. They can be used in civil cases. (5) Ancient Documents 8 That is: recollection refreshed.



EVIDENCE 9

Statements made in documents, which are more than 20 years old9, are admissible under the ancient documents exception to the hearsay rule. (6) Learned Treatises A learned treatise is admissible if the treatise is established as reliable and if it was utilized in examining or cross-examining an expert witness or if the expert relied on the treatise during testimony. b. Declarant's Availability is Irrelevant (1) Excited Utterance A statement made in response to a startling or exciting event, which relates to the event and is made contemporaneously with the event. An excited utterance is an exception to the hearsay rule. The rationale is that such statements have their own indicia of trustworthiness. (2) Present Sense Impression-FRE only Is a statement made while describing an event as it takes place of shortly thereafter. Like an excited utterance, a present sense impression is an exception to the hearsay rule because it is believed that such statements have their own indicia of trustworthiness. (a) Contemporaneous Statement--California Only Describes the conduct of the declarant while she is doing it. Try and argue excited utterance. (3) Present State of Mind A declarant's statement regarding her present state of mind is an exception to the hearsay rule. Thus, a declarant's statement that she is angry, bored, frightened or has some other state of mind is not excluded under the hearsay rule. Under the Hillmon doctrine10, a declarant's statement of intent is also included with the state of mind exception. (a) Statements of memory or belief are not admissible unless it concerns a will. (4) Statement of Physical Condition for Medical Diagnosis (a) Past Physical Condition

9 In California, more than 30 years old. 10 A case that created an exception for statements, made out of court, that describe the speaker’s or writer’s intentions’.


Second Look Series™ Statements of past physical condition are admissible if made to medical personnel to assist in diagnosing or treating the condition. Also are allowed to include the cause or source of the condition insofar as it is relevant to the diagnosis.11 (b) Current Physical Condition Statements of current physical condition are admissible even where they are not made to a physician. (c) Statements in Contemplation of Litigation Courts will prevent statements of physical symptoms where the patient- declarant has consulted a physician for purpose of preparing for litigation. (d) California Rule No broad exception for the statements of medical diagnoses. The physical state must be at issue and the witness is unavailable or victim is under 12 and action is for child abuse or neglect. c. Declarant must be Unavailable (1) Statements against Interest A declarant's statement against her penal or pecuniary interest is an exception to the hearsay rule when the declarant is unavailable. The statement has to be against the declarant's interest when it is made and it has to be based on personal knowledge of the declarant. (2) Dying Declaration A dying declaration is a statement made under fear of impending death, which relates to the cause of circumstances of that death. Such a statement is admissible in a civil case of in a homicide prosecution, so long as the declarant is unavailable. The declarant, however, need not have died. (a) California The declarant must really be dead and the statement must concern cause of death. (3) Former Testimony Former testimony is admissible when the testimony was under oath and the person who testified is now unavailable. The declarant has to have been subject to cross-examination by a party who had an opportunity and similar motive to cross-examine the declarant. (4) Statements of Personal Family History 11 In California, the declarant must be unavailable.



EVIDENCE 11

Marriage, death, etc. d. Catch-All Exception under FRE A statement not specifically covered by any of the foregoing exceptions but having equivalent guarantees of trustworthiness may be admissible if the court determines: (1) It is offered as evidence of a material fact; (2) It is more probative than other evidence which can be (3) The interests of justice will be served by its admission. 6. Sixth Amendment Right to Confrontation Because the use of hearsay evidence in a criminal case may violate the Confrontation Clause, prior testimonial evidence is inadmissible against a criminal defendant unless the hearsay declarant is unavailable and the defendant had the opportunity to cross-examine the hearsay declarant at the time the statement was made. In addition, hearsay rules and other exclusionary rules cannot be applied where such application would deprive the accused of her right to a fair trial or deny her right to compulsory process12. C. CHARACTER 1. Substantive Purposes: Criminal Cases Evidence of a person's character or a trait of her character is not admissible for the purpose of proving that she acted in conformity therewith on a particular occasion. a. Exception: Mercy Rule A defendant may offer evidence of her good character to establish her innocence in the form of: (1) Opinion Testimony Testimony relaying opinion as opposed to direct knowledge of the facts at issue. Character evidence is admissible in a criminal trial if offered by a defendant as circumstantial evidence—through reputation or opinion evidence—to show her own character, as long as the character evidence the defendant seeks to introduce is relevant to the crime with which the defendant is charged.

12 Not applicable if defendant caused witness to be unavailable.


Second Look Series™ For example, if a defendant is charged with a crime involving dishonesty, defendant may introduce evidence tending to show defendant's honest character. (2) Reputation Testimony Testimony relaying reputation of the surrounding community as opposed to direct knowledge of the facts at issue. Character evidence is admissible in a criminal trial if offered by a defendant as circumstantial evidence—through reputation or opinion evidence—to show her own character, as long as the character evidence the defendant seeks to introduce is relevant to the crime with which the defendant is charged. For example, if a defendant is charged with a crime involving dishonesty, defendant may introduce evidence tending to show defendant's honest character. (3) No Specific Instances of Conduct b. Opening the Door Once the defendant opens the door, the prosecution can put on evidence of the defendant's bad character using: (1) Opinion Testimony See supra. (2) Reputation Testimony See supra. (3) Cross-examination Of the defendant's witnesses about knowledge of defendant's specific instances of misconduct. Not allowed to prove up with extrinsic evidence except in California where Proposition 8 allows extrinsic evidence in such situations. c. Exception: Specific Acts Evidence of other crimes or misconduct is admissible if these acts are relevant to some issue other than the defendant's character or disposition13. (1) Admissibility: MIMIC To be admissible there must be sufficient evidence to support a jury finding that the defendant committed the prior act, and its probative value must not be substantially outweighed by its prejudice. 13 Mnemonic: mimic.



EVIDENCE 13

d. Exception: Sexual Assault/Child Molestation Cases In sexual assault and child molestation cases, specific instances of the defendant's prior acts of sexual assault or molestation are admissible. California expands this exception to also include prior possession of child pornography, exploitation of children, and prior domestic violence. e. Exception: Character of Victim Except in rape cases, the defendant may introduce reputation or opinion evidence of a bad character trait of the alleged crime victim when it is relevant to show the defendant's innocence. In addition, California allows the introduction of specific instances of the victim's conduct. Once the defendant has introduced evidence of a bad character trait of the victim, the prosecution may counter with reputation or opinion evidence of: (1) victim's good character; (2) defendant's bad character for the same trait. f. Exception: Sexual Assault In any civil or criminal proceeding involving alleged sexual misconduct, evidence offered to prove the sexual behavior or sexual disposition of the victim is generally inadmissible. (1) Exceptions (a) Prior consensual conduct with the defendant. (b) Conduct with others offered to show an alternative source of physical evidence. 2. Substantial Purposes: Civil Cases Unless character is directly in issue, evidence of character being offered by either party to prove the conduct of a person in the litigated event is generally not admissible in a civil case. On cross, no questions with specific instances are allowed. Character is directly in issue in the following cases. a. Character in Issue (1) Child Custody: Character of Parents in Issue (2) Defamation (3) Negligent Entrustment14 14 For example: loan of a gun to a person with a history of violence.


Second Look Series™ b. Sexual Assault Cases If not placed in issue, same as criminal cases. If placed in issue, evidence of the alleged victim's sexual behavior is admissible if it is not excluded by any other rule and its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party. D. HABIT AND CUSTOM While character is a generalized description of one's disposition, habit describes one's regular response to a repeated specific situation. Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routing practice. 1. Miscellaneous Admissibility Issues Evidence of chronic litigation is not admissible. Similar false claims can be introduced under common plan/scheme. Prior contracts between the same parties can be used to establish terms. Prior accidents can be used to show knowledge/ownership/existence of condition etc. E. OPINION 1. Lay Opinion A lay witness is allowed to testify in the form of an opinion when; (1) the opinion would be helpful to the trier of fact; (2) the opinion is based on the perception of the witness; and (3) the subject is a proper subject for lay opinion15. 2. Expert Opinion An expert is allowed to testify in the form of an opinion when: (1) the opinion would be helpful to the trier of fact; (2) the opinion is based upon matter which an expert might reasonably rely; (3) the expert is properly qualified based on education, training or experience. In addition, if the expert is testifying regarding some novel theory, the expert's opinion has to be based on methods or processes of scientific thought. In Federal Courts, the theory need not have been generally accepted within the scientific community. a. California General Test In California, the proponent of the scientific evidence must prove that the underlying scientific theory, and the instruments that it uses, have been generally accepted as valid and reliable in the relevant scientific field. b. Hypothetical Questions Hypothetical questions can be asked and the opinion may be based on inadmissible evidence. The ultimate issue can be embraced, but cannot draw a legal conclusion. 15 For example: weather/speed/intoxication/sanity/handwriting/distance.



EVIDENCE 15

F. IMPEACHMENT 1. Convictions A witness can be impeached with evidence that the witness has been convicted of a felony or of any crime involving perjury or false statements16. These convictions cannot be too remote. Generally, if more than 10 years have passed from the date of the conviction, the conviction is not admissible for impeachment purposes. A court has discretion to exclude evidence of a felony conviction if the court finds it unduly prejudicial, but a court has no discretion to exclude a conviction for perjury or false statement. A conviction is proved by examining the witness or by introducing the record of a conviction. 2. Bad Reputation for Truth or Veracity A witness can be impeached by the introduction of other witnesses who can testify to the reputation of the witness for untruthfulness. Similarly, another witness who is familiar with the witness can express an opinion about whether the witness is generally truthful. California prohibits testimony regarding a person's truthfulness in civil cases until that person's character has been attacked. 3. Bias and Prejudice Evidence that a witness is biased or prejudiced against one of the parties is always admissible for impeachment purposes. Extrinsic evidence is admissible to show that a witness suffers from bias or prejudice. 4. Prior Bad Acts Involving Dishonesty Under the FRE, a witness can be cross-examined regarding prior bad acts involving dishonesty so long as the questioning is conducted in good faith. Extrinsic evidence is not admissible to prove the prior bad act. If the witness denies the bad act in response to the question, no further evidence is admissible. However, in California, such questioning is precluded in civil cases. California permits cross-examination in criminal cases and the use of extrinsic evidence under Proposition 8. However, such evidence is still subject to legal relevance limitations. 5. Prior Inconsistent Statements Prior inconsistent statements are admissible for impeachment purposes. Under the FRE, if the statements were made under oath, they are admissible not only for impeachment purposes but as substantive proof. If the statements were not made under oath, they are admissible only for impeachment in Federal Court. a. California Such statements can be used for the truth regardless of whether they were made under oath. 16 California civil cases exclude misdemeanor convictions.


Second Look Series™ 6. Evidence of Poor Memory/Poor Sight Is admissible to impeach a witness.

IV. PRIVILEGE AND WAIVER

A. ATTORNEY-CLIENT Communications between an attorney and a client, made during professional consultation, are privileged from disclosure. The client must be seeking the professional services of the attorney at the time of the communication. Disclosures made before the attorney accepts or declines the case are covered by the privilege and applies indefinitely. 1. Corporate Clients Corporations are clients and statements made by corporate officials or employees to an attorney are protected if the employees were authorized to make such statements. 2. Holder of the Privilege The client holds the privilege and she alone may waive it. The attorney's authority to claim the privilege on behalf of the client is presumes in the absence of contrary evidence. 3. Exceptions There is no privilege: a. If the attorney's services were sought to aid in the planning or commission of something the client should have known was a crime or fraud; b. Regarding a communication relevant to an issue between parties claiming through the same deceased client; and c. For a communication relevant to an issue of breach of duty in a dispute between the attorney and client. B. DOCTOR-PATIENT The doctor patient privilege belongs to the patient, and she may decide to claim or waive it. Confidential communications between a patient and her physician are privileged provided that: (1) a professional relationship exists; (2) the information was acquired while attending the patient in the course of treatment; and (3) the information was necessary for treatment. 1. Exceptions The privilege does not apply or is waived if: a. The patient has put her physical condition in issue.



EVIDENCE 17

b. The physician's assistance was sought to aid wrongdoing. c. The communication is relevant to an issue of breach of duty in a dispute between the physician and patient. d. The patient agreed by contract. e. It is a federal case applying the law of privilege. 2. Criminal Proceedings In some states, the privilege applies in both criminal and civil proceedings. In a number of others, it cannot be invoked in criminal cases generally. In other states, the privilege is denied in felony cases, and in a few states, it is denied only in homicide cases. C. PSYCHIATRIST/PSYCHOTHERAPIST/SOCIAL WORKER CLIENT PRIVILEGE The Supreme Court recognizes a federal privilege for communications between therapist and her client. Thus, the federal courts and virtually all of the states recognize a privilege for this type of confidential communication. D. CLERGY-PENITENT A privilege exists for statements made to a member of the clergy, the elements of which are the same as the attorney-client privilege. E. HUSBAND-WIFE 1. Spousal Immunity A married person whose spouse is a defendant in a criminal case may not be called as a witness by the prosecution. Moreover, a married person may not be compelled to testify against her spouse in any criminal proceeding, regardless of whether the spouse is the defendant. There must be a valid marriage for the privilege to apply, and the privilege lasts only during marriage. a. Holder of the Privilege In federal court and California, the privilege belongs to the witness spouse. Thus, the witness-spouse cannot be compelled to testify, but may choose to do so. In most states, the privilege belongs to the party-spouse. 2. Privilege for Confidential Marital Communications In any civil or criminal case, confidential communications between a husband and wife during a valid marriage are privileged. For the privilege to apply, the marital relationship must exist when the communication is made. Divorce will not terminate the privilege, but communications made after divorce are not privileged. In addition, the communication must be made in the reliance of the intimacy of the marital relationship. 3. When Neither Marital Privilege Applies


Second Look Series™ Neither privilege applies in actions between spouses or in cases involving crimes against the testifying spouse or either spouse's children. F. SELF-INCRIMINATION Under the Firth Amendment, a witness cannot be compelled to testify against herself. Any witness compelled to appear in a civil or criminal proceeding may refuse to give an answer that ties the witness to the commission of a crime. G. WORK PRODUCT The work product privilege protects material prepared by an attorney in preparation of litigation, regardless of its content. 1. Absolute Privilege Documents containing the attorney's impressions, conclusions, opinions, research, theories of the case, significant facts, and persons talked to by the attorney are never discoverable. 2. Qualified Privilege Documents not protected by the absolute privilege will be discoverable unless the opposing party can show substantial hardship and that unfair prejudice would result from the inability to pursue a claim or defense. 3. Not Privileged The location of witnesses, evidence, statements, and those who you plan to call at trial. 4. Expert Reports If the report was made based upon privileged communications it will be protected. If the report was not made based upon privileged communications, the privilege will not apply. a. Testifying Expert Where an expert will testify at trial, the privilege is deemed waived. H. WAIVER Any privilege is waived by: (1) failure to claim the privilege; (2) voluntary disclosure of the privileged matter by the privilege holder; or (3) a contractual provision waiving in advance the right to claim the privilege. 1. Eavesdropper A privilege based on confidential communications is not abrogated because it was overheard by someone whose presence is unknown to the parties. Under the modern view, in the absence of negligence by the one claiming privilege, even the eavesdropper would be prohibited from testifying.



EVIDENCE 19

V. POLICY EXCLUSIONS

A. SUBSEQUENT REMEDIAL MEASURES Subsequent remedial measures are inadmissible to prove liability or fault. They are admissible to show ownership or control if it is in dispute or to show the feasibility of repair. B. PROOF OF INSURANCE Proof of insurance is inadmissible to show liability or fault or to show ability to pay. Proof of insurance is admissible to show ownership or control if in dispute. C. OFFERS TO SETTLE AND WITHDRAWN GUILTY PLEAS Disputed claims are inadmissible for policy reasons. The law wants to encourage parties to settle disputes without litigation. Any statement made in conjunction with the offer to settle is also inadmissible. D. OFFERS TO PAY MEDICAL EXPENSES Offers to pay medical expenses are inadmissible for policy reasons. The law wants to encourage parties to act as Good Samaritans and to offer aid to those who are injured. However, under the FRE only the offer itself is inadmissible. The exclusion does not apply to statements or admissions made along with the offer to pay medical expenses. In California, all statements surrounding negotiations are inadmissible, including admission or fault. E. DOCTRINE OF COMPLETENESS When part of a writing or recorded statement is introduced, an adverse party may require the immediate admission of any other part of the writing which in fairness ought to be considered. F. DOCTRINE OF LIMITED ADMISSIBILITY When evidence which is admissible only as to one party or for one purpose is admitted, the court should restrict the evidence to its proper scope and instruct the jury accordingly.

VI. LEGAL RELEVANCE

A. LEGAL RELEVANCE 1. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of the cumulative evidence.