Best Evid. Rule, Expert W, & Priv.
Best Evid. Rule
- Use Orig. / Duplicate 2 Prove Contents
- Writing / Recording (FRE 1001)3)
- Itself / any counterpart intended 2 have same
- Computer record orig. is printout / othter sight
- Photograph (FRE 1001)d)
- Negative / positive print
- Duplicate is Counterpart
- FRE 1001)4
- Same impression / matrix
- Mechanical / electric re-recording
- Chem. reprod.
- Other accurate technique
- Can's Use Duplicate If
- Real quest. about authenticity of orig.'al
- Unfair 2 use duplicate
- Using Live W's
- Can Use 2 Prove Content of What's in W's Head
- Exception 2 Use of Orig. / Duplicate
- 2ndary Evid.: Lwr Status Than Duplicate
- Copy that's not as good as duplicate
- Use 2ndary Evid. When
- Orig. lost / destroyed w/o intent 2 destroy
- Orig. unavail. by jud.'al process
- Writing is merely collateral
- Adversary has them & didn't bring
- Would infer worst against party that didn't bring
- Jxn'al Pref.
- CA & C/L pref. copy 2 testi.
- Fed. can use either copy / testi.
Expert Opinion Testi.
- Three Cond.'s
- Proper Subj.
- Something beyond common exp. of lay jurors
- Permissive v. mandatory use of expert opinions
dep.'ing on subj.'s
- Proper Expert
- Demo. W is expert by quest.'ing credentials in
exp. / degrees
- Voir dire before dir. exam by other side 2 see
if really an expert
- Proper Basis
- If science, need valid science
- CA's Kelly Frye Rule: testi. based on scientific
theory gen'ly accepted by scientific community
- FRE 702 consid.'s factors
- Testability / if it was tested
- Peer rev. & publ.
- Acceptable error rate
- Gen. acceptance in scientific comm.
- Not excl. list
- Source of info of experts
- Pers.'al knowledge
- Learned before / @ hrg
- CEC 801)b: Materials rsbl expert would rely on
- Materials need not B adm. in evid.
- Fed & CA ok 2 rely on other opinion if rsbl
but not in C/L
- All assumptions in hypo quest.'s must B backed
by record already in case / intend 2 put in record
- Ultimate Issue Rule
- C /L
- No lay / expert W may state opinion on issue
jury must ultimately dec.
- Modern: CEC 805 & FRE 704
- If proper opinion, not become improper b/c it
strikes on ultimate issue
- Expert can't testify 2 factual bldg block
- Crim. Case: FRE 704)b
- Expert can't testify 2 legal concl. of S/M nec.
4 crime / defense
- Destroying Expert W's Through Cross
- Attack Qualif. of W / Premise of Opinion
- Bias Against Client
- Own prior testi. / writing
- Other people's writing
- Treatise / journals
- Liberal C/L
- Get expert 2 adm. it's authoritative
- Est. by other means it's auth.
- FRE 803)18: Spec. hearsay exception 2 adm. truth
of writing if
- Expert explains it +
- Est. by some means auth. writing
- CEC 721)b: Can't use unless
- Adm'ed in evid. over hearsay /
- Expert concedes on consid.'ing it
- Fed. & State
- Diversity, Then Use State Priv. (FRE 501)
- Fed Quest., Fed. C/L of Priv.
- Presume Confid. Comm'n Unless Proven
- Fed. judge can hold in camera hrg 2 dec. if
- CA can't
- Atty Client Priv.
- License 2 pract. / somebody client rsbly thought
- Any body / legal entity seeking legal serv's
- Control group of lwr ranking ee's if
- Purpose is 2 get proper legal serv. 4 entity
- Ee realize the purpose
- Subj. of comm'n w/in ee's duty 2 act on behalf
- Ee's were talking 2 atty @ dir. of top people
- Holder of priv.
- Comm'n Btwn Atty & Client / Their Agents
- Info about getting legal serv.
- Basic facts not priv.'ed
- Rsbl expectation won't B overheard / learned
by other people
- If comm'n made in contemplation of creating atty
- Eavesdropper destroyed confid. in C/L
- If comm'n is 2 perpetrate future crime (/fraud
- Client's intent / competence like in transfer
of prop. by will / inter vivos
- Breach of atty client rel.
- Waiving Priv.
- Disposing vol'ly subst'l part of priv.'ed comm'n
- Failing 2 claim it when have chance 2 do so
- Not waived if reveal 2 person w/whom U have priv.
- Work Prod. Doc.
- Only give work prod. if other side shows good
cause + costlier 2 get info through other means
- Adversary can get anything used 2 prep. W
- No exceptions 4 things like atty's notes but
CA exception 4 malpract. / discipline axns
- Dr. Pat. Rel.
- Not Exist 4 Fed.
- Broader Than Atty Client B/C Protects
- Dr.'s observation about pat.
- Result of med. test that Dr. perf's
- Pat. Holder
- Crim. cases
- Future crime / tort
- Pat. in litig. tendered issue of own phys.
- Pat. is civil D
- Breach of Dr. pat. duties
- Property disposition by will / intervivos
- Report req'ed by govt
- Competency / commitment prcg
- Psychotherapist Pat.
- Holder is Pat.
- Wide Def. of Psychotherapist
- Same Exceptions as Dr. Pat.
- Future crime / tort
- Pat. in litig.
- Breach of therapist pat. duties
- Prop. disposition
- Report req'ed by govt
- Competency prcg
- Dif. Exception
- Sanity of crim. D
- Exception if ct. appt's therapist 2 see if D
- Still priv'ed if D asks ct. 2 appt. therapist
4 benefit of D
- Therapist has rsn 2 believe dang. 2 self / others
- Marital Priv.'s
- Spouse W Priv. / Status Priv.
- Only req. validly married @ X of prcg
- Rts not 2 testify against spouse + not 2 B called
2 W stand by adversary w/o consent
- Apply 2
- CA, all prcg's where govt has pwr 2 compel testi.
- Fed. & C/L, only crim. where spouse is accused
- Holder of priv.
- Fed. & CA, testifying spouse
- Min. C/L, party spouse
- Civil suit brought / defended by 1 spouse 4 benefit
- Commited crim. act before marriage
- If 2nd marriage, axn against former
spouse 4 failure 2 support
- Marital Comm'n Priv.
- Valid marriage @ X of comm'n, not trial
- Confid. comm'n during valid marriage
- Incl's assertive conduct
- Maj. excl. nonassertive conduct
- Min. incl. nonassertive conduct if something
that wouldn't have been done in front of anybody except spouse
- Apply 2 all cases in CA, C/L, & Fed.
- Holder of priv. is both spouses
- Comm'n 2 aid / enable anyone 2 plan / commit
crime / fraud
- Crim. D spouse offers marital comm'n
- Exceptions 2 Both Priv.'s
- Sues other spouse
- Commitment, guardian / competency
- Charged w/crim. against other spouse / relative
of either spouse
- Failure 2 support 1's spouse / child
- Priv. Against Self Incrim.
- 5th Amend.
- No person … shall B compelled in any crim.
case 2 B a W against himself
- Testifying Waives Both Priv. of Accused &
Every W Priv.
- Priv. of Accused
- Accused person in crim. case has rt. not 2 B
- Accused in crim. is person taken in custody /
deprived of free axn
- Not 2 B a W is not 2 give testimonial evid. against
- Can reassert priv. even if thrown away @ earlier
pt. of prcg
- Approp. jury instruction
- Not think about D's choice 2 exercise Const'al
- Ok 4 judge 2 instruct even if D asks not 2
- if testified, waived extent of dir. exam scope
& must ans. all of prsec'ors cross even if tend 2 incrim.
- Every W Priv.
- Rt 2 refuse 2 discl. any matter that may tend
- Applies 2 all W's in any govt prcg w/pwr 2 subpoena
- Can't claim priv. if double jeopardy / S/L prevent
- Rt not 2 ans. quest. if it forms even smallest
link in chain of circ'al evid. 4 element of crime
- Waiver & Incrim.
- If reveal any fact tending 2 incrim., waived
any lesser detail
- But rt. not 2 ans. if tend 2 incrim. further
- Immunity 2 Force Testi.
- Use & Derivative Const'al
- Can't use any info revealed / derived from revealing
in prosec.'ing U
- Can't prosec. 4 any crim. quest.'ed, whether
find out through own investig. / not
- Jxn'al Issue
- If 1 jxn grant immunity, other jxn can't use
- If 1st jxn grants trxn'al, other jxn
only need 2 give use & derivative
This material is copyrighted by the author. Use of the material
for profit is strictly prohibited without the written permission
from the author.
May 5, 1997
Ms. Haeji Hong
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