Evidence Outline UT Law

7/27/2019 Evidence Outline UT Law

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BASICSBASICS

PA HEAR PICCASO BROWN

P Privileges

A - Authentication

HEAR Hearsay

P PleaI ImpeachmentC Character EvidenceC-CompromiseA AdmissibilityS SRMO Other bad acts

B est Evidence RuleR RelevanceO Opinion testimonyW !itnessesN "otice #$udicial notice%

State the ob$ection that is most li&ely to be raised' then discuss the arguments (or admission in

response and reach a conclusion as to the validity o( the ob$ection)

*iscuss both sides o( the argument

I( there is another ground (or ob$ecting to a piece o( evidence' discuss in same +ay)

RULINGS ON EVIDENCERULINGS ON EVIDENCE

Federal Rule 103. Rul!"# $! E%de!&e

'() Re&$rd $* $**er a!d rul!"

,he court may add any other or (urther statement +hich sho+s the character o( the evidence' the (ormin +hich it +as o((ered' the ob$ection made' and the ruling thereon) It may direct the ma&ing o( ano((er in -uestion and ans+er (orm)'&) Hear!" $* +ur,

In $ury cases' proceedings shall be conducted' to the e.tent practicable' so as to prevent inadmissibleevidence (rom being suggested to the $ury by any means' such as ma&ing statements or o((ers o( proo(

or as&ing -uestions in the hearing o( the $ury)

ea# Rule 103. Rul!"# $! E%de!&e

'() Re&$rd $* O**er a!d Rul!".,he o((ering party shall' as soon as practicable' but be(ore thecourt/s charge is read to the $ury' be allo+ed to ma&e' in the absence o( the $ury' its o((er o( proo() ,hecourt may add any other or (urther statement +hich sho+s the character o( the evidence' the (orm in+hich it +as o((ered' the ob$ection made' and the ruling thereon) ,he court may' or at the re-uest o( aparty shall' direct the ma&ing o( an o((er in -uestion and ans+er (orm)
http://www2.law.cornell.edu/cgi-bin/foliocgi.exe/fre/query=%5BJUMP:'Rule103'%5D/doc/%7B@1%7D?firsthithttp://www2.law.cornell.edu/cgi-bin/foliocgi.exe/fre/query=%5BJUMP:'Rule103'%5D/doc/%7B@1%7D?firsthit


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DIFFERENCE BEWEEN FRE / RE

RE ma&es a -uestion0and0ans+er (orm o( o((er o( proo( mandatory at the re-uest o( either party

FRE -uestion and ans+er (orm is discretionary +ith the court)

N$e# O((er o( proo( to preserve error in the e.clusion o( evidence the substance o( the evidence

should be sho+n to the court by an o((er o( proo()

An o((er o( proo( enables

o Appellate court to determine +hether e.clusion +as erroneous and harm(ul

o Permits trial $udge to reconsider the ruling in light o( the actual evidence)

Sometimes the o((er o( proo( is evident (rom the conte.t +ithin +hich the -uestions +ere as&ed1

o(ten during cross0e.amination)

I* ,$u l$#e a a! e%de!ar, 2ear!" # ,$ur re#4$!#(l, $ 5a6e a! $**er $* 4r$$*. I*

,$u d$!7 ,$u l$#e 2e $44$ru!, $ d$ $! a44eal. I 8US (e $! 2e re&$rd.

AD8ISSIBILI9AD8ISSIBILI9

Federal Rule 10:. Prel5!ar, ;ue#$!#

'a) ;ue#$!# $* ad5##(l, "e!erall,.Prel5!ar,


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o E.) ,he love letter is conditionally relevant only i( rad is the author)

2e +ud"e !$ 2e +ur, de&de# 4rel5!ar,

Relatively lo+ threshold)

?ud"e d$e#!7 2a%e $ (e &$!%!&ed 2a Brad =r$e 2e leer (u 2a2ere # e!$u"2 e%de!&e 2a a REASONABLE +ur$r COULD *!d 2a

Brad =r$e 2e l$%e leer.

,he (unction o( the $udge is merely to determine +hether a prima (acie case hasbeen presented' "O, to decide the actual issue o( genuineness)

E.) Even i( $udge is not convinced that the voice on the tape is *8s' so

long as $ury CO9:* reach a contrary conclusion' it must be given theopportunity to do so)

Laer &$!!e&$!@C$!!e&!" u4

o !here evidence is presented that is sub$ect to e.clusion on an ob$ection that its relevancy

has not been sho+n or that it lac&s ade-uate (oundation' a $udge may admit the evidenceconditionally upon counsel8s promise to ;connect it up later)

o It is both the number of steps and the strength of the inference that each of step

allows.


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o ,here is nothing inherently strong about direct evidence and nothing inherently +ea&

about circumstantial evidence it all depends)

*irect evidence6 proves a conse-uential (act directly1 no in(erence has to bedra+n (rom the evidence to the conse-uential (act)

Circumstantial evidence6 re-uires that the (act0(inder dra+s in(erences (rom the

evidence in order to conclude that some conse-uential (act e.ists Whether a proposition if of consequence to the determination of the action is governed by

substantive law.

o :oo& to +hat is trying to be proved)

E.) I( Pr is trying to prove possession o( a gun' (act that gun +as loaded is notrelevant)

How probative does a piece of evidence have to be in order to be relevant?

o I 5u# 2a%e 2e l$"&al *$r&e $ a**e& a ra$!al *a& *!der7# e#5a$! $* 2e

l6el2$$d $* 2e e#e!&e $* a 5aeral *a&.

Incremental changes it does "O, have to prove the case7

I( be(ore the evidence you thought there +as a ?@ chance that * did it

and a(ter the evidence you thin& that there +as a ?B 0 it is relevant7

Re5e5(er 2# =2 2ear#a, 2e #ae5e! d$e#!7 2a%e $ 4r$%e a!,2!" +u#

!eed# $ END $ 4r$%e #$5e2!"

*eterminations o( relevancy under Rule 543 are o(ten balanced under 54?1 i( it is o( doubt(ul

relevance under 543 it +ill probably be e.cluded under 54?)

Ea54le# $* 2$= e%de!&e &a! (e rele%a!

Admissions by conduct

o ,he probative value o( (light as circumstantial evidence o( guilt depends upon the

strength o( the in(erences

rom the de(endant behavior to (light rom (light to consciousness o(guilt(rom consciousness o( guilt to consciousness o( guilt concerning the

crime charged(rom consciousness o( guilt concerning the crime charged toa&ualguilt o( the crime charged)

o Other conduct

,hreats' bribes' use o( a (alse name' re(use to provide hand+riting samples' etc

Occurrence or absence o( similar events

o !ith negligence or product liability cases' past occurrences o( absence o( similar

accidents may be relevant but they must be substantially similar1 similarity o(conditions are important

E.) Side+al& slip0and0(all case in Maine

o I( other accident is used to sho+ notice' similarity o( condition is not as important

Federal Rule :0. Rele%a! E%de!&e Ge!erall, Ad5##(le Irrele%a! E%de!&e I!ad5##(le

All relevant evidence is admissible' e.cept as other+ise provided by the Constitution o( the 9nitedStates' by Act o( Congress' by these rules' or by other rules prescribed by the Supreme Court pursuantto statutory authority) Evidence +hich is not relevant is not admissible)


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ea# Rule :0. Rele%a! E%de!&e Ge!erall, Ad5##a(le Irrele%a! e%de!&e !ad5##a(le

All relevant evidence is admissible' e.cept as other+ise provided by Constitution' by statute' by theserules' or by other rules prescribed pursuant to statutory authority) Evidence +hich is not relevant is

inadmissible)

54D establishes the general principles that

o All relevant evidence is admissible unless made inadmissible by some particular rule or

la+

E.' Rule 545' 54 and B4D #hearsay% may e.clude relevant evidenceo Irrelevant evidence is not admissible

Federal Rule :03. E&lu#$! $* Rele%a! E%de!&e $! Gr$u!d# $* Pre+ud&e C$!*u#$! $r Wa#e

$* 5e

Although relevant' evidence may be e.cluded i( its probative value is substantially out+eighed by thedanger o( un(air pre$udice' con(usion o( the issues' or misleading the $ury' or by considerations o(undue delay' +aste o( time' or needless presentation o( cumulative evidence)F ;+aste o( time< not in,RE

RULE :03. E&lu#$! $* Rele%a! E%de!&e $! S4e&al Gr$u!d#

Although relevant' evidence may be e.cluded i( its probative value is substantially out+eighedby the danger o( un(air pre$udice' con(usion o( the issues' or misleading the $ury' or by considerationso( undue delay' or needless presentation o( cumulative evidence)

DIFFERENCE BEWEEN FRE / RE E.clusion o( relevant evidence because it is a ;+aste o(time< is in RE' but !$,RE)

Relevant evidence may be e.cluded i( the legitimate probative value o( the evidence is

substantially out+eighed by the potential damage that the evidence might do to the orderly'e((icient' and (air process o( the trial)

o Calls (or a balancing test involves the trial court8s discretion)

Rule *a%$r# ad5##$! general rule is that the balance should be struc& in (avor o( admission)

o Courts use Rule 54? sparingly)

Pre+ud&al %alue 5u# SUBSANIALL9 OUWEIGH 4r$(a%e %alue $* e%de!&e.

o Relevant evidence is inherently prejudicial so in order for it to be excluded it must

substantially outweigh its probative value.o Rule does not protect against pre$udicial evidence' only 9"AIR:G pre$udicial evidence

E.) 9n(airly pre$udicial evidence could include evidence +hich appeals to $ury8ssympathy' arouses its sense o( horror' provo&es its instincts to punish or other+isecauses a $ury to base its decision on something other than the establishedproportions in the case)
http://www2.law.cornell.edu/cgi-bin/foliocgi.exe/fre/query=%5BJUMP:'Rule403'%5D/doc/%7B@1%7D?firsthithttp://www2.law.cornell.edu/cgi-bin/foliocgi.exe/fre/query=%5BJUMP:'Rule403'%5D/doc/%7B@1%7D?firsthithttp://www2.law.cornell.edu/cgi-bin/foliocgi.exe/fre/query=%5BJUMP:'Rule403'%5D/doc/%7B@1%7D?firsthithttp://www2.law.cornell.edu/cgi-bin/foliocgi.exe/fre/query=%5BJUMP:'Rule403'%5D/doc/%7B@1%7D?firsthit


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E.) Regret chart $ury may be more li&ely to rule against a driver i( they

&no+ he has insurance' etc)

?ud"e NO $ deer5!e &red(l,

o !hen +eighing probative value against un(air pre$udice under Rule 54? court should

consider the probative value a##u5!" the evidence is believed"O, to the degree that

the court (inds it believable)

HEARSA9HEARSA9

Al=a,# a#6 H$= # 2e #ae5e! 4r$(a%e>

Hear#a, da!"er# 'SCA8P) S!&er, &$55u!&a%e a(l, 5e5$r, 4er&e4$!

E9 D$e# 5aer =2e2er 2e #ae5e! # rue $r !$>

Federal Rule 01. De*!$!#

,he (ollo+ing de(initions apply under this article6'a) Sae5e!. A =statement= is #3% an oral or +ritten assertion or #D% nonverbal conduct o( a

person' i( it is intended by the person as an assertion)

'() De&lara!.A =declarant= is a person +ho ma&es a statement)'&) Hear#a,.=Hearsay= is a statement' other than one made by the declarant +hile testi(ying at

the trial or hearing' o((ered in evidence to prove the truth o( the matter asserted)'d) Sae5e!# =2&2 are !$ 2ear#a,.A statement is not hearsay i(00

#3%Prior statement by witness) ,he declarant testi(ies at the trial or hearing and is sub$ect tocross0e.amination concerning the statement' and the statement is #A% inconsistent +ith the declarant/stestimony' and +as given under oath sub$ect to the penalty o( per$ury at a trial' hearing' or otherproceeding' or in a deposition' or #% consistent +ith the declarant/s testimony and is o((ered to rebutan e.press or implied charge against the declarant o( recent (abrication or improper in(luence ormotive' or #C% one o( identi(ication o( a person made a(ter perceiving the person1 or

#D%Admission by party-opponent.,he statement is o((ered against a party and is

#A% the party/s o+n statement' in either an individual or a representative capacity or#% a statement o( +hich the party has mani(ested an adoption or belie( in its truth' or#C% a statement by a person authoried by the party to ma&e a statement concerning thesub$ect' or#*% a statement by the party/s agent or servant concerning a matter within the scope ofthe agency or employment' made during the existence of the relationship' or#E% a statement by a coconspirator o( a party during the coursea!din furtherance ofthe conspiracy)

,he contents o( the statement shall be considered but are not alone su((icient to establish the declarant/sauthority under subdivision #C%' the agency or employment relationship and scope thereo( under

subdivision #*%' or the e.istence o( the conspiracy and the participation therein o( the declarant and theparty against +hom the statement is o((ered under subdivision #E%)

ea# Rule 01. De*!$!#

,he (ollo+ing de(initions apply under this article6'a) Sae5e!.A =statement= is #3% an oral or +ritten verbal e.pression or #D% nonverbal conduct o( aperson' i( it is intended by the person as a substitute (or verbal e.pression)'() De&lara!.A =declarant= is a person +ho ma&es a statement)


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'&) 8aer A##ered.=Matter asserted= includes any matter e.plicitly asserted' and any matter impliedby a statement' i( the probative value o( the statement as o((ered (lo+s (rom declarant/s belie( as to thematter)'d) Hear#a,.=Hearsay= is a statement' other than one made by the declarant +hile testi(ying at the trialor hearing' o((ered in evidence to prove the truth o( the matter asserted)

'e) Sae5e!# W2&2 Are N$ Hear#a,.A statement is not hearsay i(6#3%Prior statement by witness) ,he declarant testi(ies at the trial or hearing and is sub$ect tocross0e.amination concerning the statement' and the statement is6

#A% inconsistent +ith the declarant/s testimony' and +as given under oath sub$ect to thepenalty o( per$ury at a trial' hearing' or other proceeding e.cept a grand $ury proceedingin a criminal case' or in a deposition1#% consistent +ith the declarant/s testimony and is o((ered to rebut an e.press orimplied charge against the declarant o( recent (abrication or improper in(luence ormotive1#C% one o( identi(ication o( a person made a(ter perceiving the person1 or#*% ta&en and o((ered in a criminal case in accordance +ith Code o( Criminal Procedure

article ?B)4@3)#D%Admission by party-opponent) ,he statement is o((ered against a party and is6#A% the party/s o+n statement in either an individual or representative capacity1#% a statement o( +hich the party has mani(ested an adoption or belie( in its truth1#C% a statement by a person authoried by the party to ma&e a statement concerning thesub$ect1#*% a statement by the party/s agent or servant concerning a matter +ithin the scope o(the agency or employment' made during the e.istence o( the relationship1 or#E% a statement by a co0conspirator o( a party during the course and in (urtherance o( theconspiracy)

DIFFERENCE BEWEEN FRE AND RE

,e.as de(inition o( hearsay is broader #&eeps more statements O9,% and closer to C: concept o(hearsay) ,e.as uses phrase =verbal e.pression= in Rule B43#a%' +here (ederal version uses =assertion)=,e.as Rule B43#c% ;matter asserted< means that a statement is hearsay i( it 54le#something' i( it isthat implication is unintentional) #,his means that ;nonassertive verbal conduct< and ;verbalassertions used in(erentially< are hearsay in ,e.as' but "O, in RE%

E.)Zenni ;Put 34 on :amelegs< this is not an assertion' it is an e.pressionJcommand) Sounder RE' so it is "O, hearsay) It is a ;matter< though so it IS hearsay under ,RE),e.as Rule B43#e%#3%' Prior Statement by !itness' is consistent +ith ederal Rule B43#d%#3% as to civilcases but in criminal cases' ,e.as Rule B43 di((ers (rom the civil and (ederal versions in t+o +ays6

,e.as adds #3% =e.cept a grand $ury proceeding= in prior inconsistent statements1

D**ere!&e (e=ee! FRE / RE

W2a &$!#ue# 2ear#a, ! *ederal &$ur> !ept out"

o E.plicit verbal assertions

o Assertive' nonverbal conduct

W2a # NO 2ear#a, ! *ederal &$ur> let in"

o "onassertive' nonverbal conduct


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o "onassertive' verbal conduct

o Kerbal assertions used in(erentially

W2a &$!#ue# 2ear#a, ! ea# &$ur> !ept out"

o E.plicit verbal assertions'

o Assertive nonverbal conduct

o "onassertive verbal conducto Kerbal assertions used in(erentially

W2a # NO 2ear#a, ! ea# &$ur> let in"

o "onassertive' nonverbal conduct

CO88ON LAW

o "onassertive' verbal conduct =a#hearsay

o "onassertive' nonverbal conduct =a#hearsay)

E.) Sending man to sanatorium evidence he +as insane)o Kerbal assertion used in(erentially =a#hearsay)

o Prior statement by a +itness regarded as hearsay

3 #e4# $ de!*,!" 2ear#a,o Is there an out of court statement?

orms

Oral

!ritten

Action

o Is the action intended as an assertion #RE% or

o Is the action a substitution (or +ords #,RE%

I( $ust noises #ie scream% +ere these intended as a substitute (or verbale.pression> #e.) Screams intended as verbal e.pression to sho+ *C is in pain% or

+ere they $ust made so no ris& o( SCAMP> ;Out o( court< means out o( ,HIS courtroom

Even i( it +as made at another trial

o What is the evidence being offered to prove?

I( o((ered (or some purposes statement o&ay1 i( o((ered (or other purposes' noto&ay

o #oes the probative value of this statement depend on the credibility of the declarant is

it being offered for the truth of the matter asserted?"

Is the statement only relevant if it is true?

I( it doesn8t depend on credibility o( the *C' then it is "O, HEARSAG)

I( it does' then it is HEARSAG)

E9 *oes it matter i( it is true or not>

o ;Hey' nice AM you got there< o((ered to prove that Condor copied AM8s design)

Ges it matters +hether it is true bJc i( *C didn8t really thin& it +as an AM then it+ouldn8t be relevant to sho+ that Condor copied AM8s design)

o ;S+art is a (ool< o((ered to sho+ L8s bias against S+art) *oes it matter +hether it is true

or not> Ges) I( L +as $o&ing' he may not be biased against S+art)


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8ul4le Hear#a, +hen there is more than one level o( hearsay #! says Sam told her that

Sally told him something%o E.amine each statement separately and see i( each statement is hearsay' and i( so'

+hether it (alls +ithin an e.ception)

FEDERAL RULE #a%0#c% contain the basic de(inition o( hearsay similar to that at common la+)

#d% lists t+o categories o( out0o(0court statements that are deemed not to be hearsay even though

they are o((ered to prove the matter assertedo #c% Certain prior statements by +itnesses

o #d% Opposing party admissions)

N$!%er(al &$!du& AS 2ear#a,.

o In FEDERAL COURtestimony about a person8s out0o(0court nonverbal conductcan

constitute hearsay O":G i( the conduct +as intended as an assertion)

E.) : as&ed K to point to man +ho hurt her1 K pointed to de(endant this is anassertion7

o In EAS COUR testimony about a person8s out0o( court nonverbal conduct can

constitute hearsay i( it is intended as a substitute (or verbal e.pression)

8aer 54led (, uera!&e

o FEDERAL COUR "O, HEARSAG 0 i( an out0o(0court utterance is o((ered to prove

a matter implied by' but not asserted in' the utterance)

E.) U.. v. Zenni not hearsay (or govt agents to testi(y that +hile searchingenni8s premises' calls +ere made to place bets bJc these +ere not ;assertions

! testi(ies that K said ;I( I ever see * again' I am going to &ill him)

o I( so' this (its in the hearsay e.ception)

I( * had heard that K had threatened to &ill him' this +ould tend to sho+ that * +as (ear(ul that

the ne.t time he ran into K' he +as a(raid K +ould &ill him)o It +ould tend to prove the listener8s #*8s% state o( mind)

o Sho+ that * reasonably (eared that this is +hat K +as going to do +hen they ne.t met)

Similar to the$illmoncase in that the statement tends to sho+ Hillmon +as going to the cree&)

o I( +e o((er this statement (or sel(0de(ense it tends to sho+ K +as planning to hurt *)

!hen +e are loo&ing at circumstantial evidence o( state o( mind it +ill either be #3% based on

the (act that +e don8t believe that a person +ould say this i( the *8s theory is true or #D% +e canloo& at either the e((ect on the listener

H9POS

'1) O! #ee!" BuJJ, 2e W 2eard 2e DC #a, 2a # 2e 5a! I #a= r$( 2e (a!6

$**ered $ 4r$%e 2a BuJJ, r$((ed 2e (a!6.

o :i&e thehepardcase)

HEARSAG 00 it is being o((ered (or its truth)


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It is about a belie( #state o( mind e.ception%' 9, it about something thathappened in the past #bac&+ard0loo&ing that the *C sa+ uy rob the ban& inthe past% so it is "O, a hearsay e.ception)

FF Plus the *C8s state o( mind is not at issue in this case)

') $ #2$= DC7# !#a!, DC7# #ae5e! I (ele%e I a5 Na4$le$!.

o O((ered to sho+ that the *C E:IEKES that he is "apoleon1 it (it the hearsaye.ception bJc it is "O, bac&+ard0loo&ing 00 it sho+s +hat he (eels right no+)

o *i((erent (rom earlier e.ample o( ;I am the Pope< being used to sho+ that *C is insane)

In that case she is saying that she IS the pope #and thus +hen it is o((ered it isnot hearsay but it is not trying to prove the truth o( the matter asserted% and inthis case he is saying that he E:IEKES that he is "apoleon #it is hearsay' but it(alls +ithin an e.ception)%

'3) I (ele%e 2e # a# #2ar4 a# 2e e%er =a# $**ered $ #2$= 2a 2e &$u#! =a# 5e!all,

&$54ee! a 2e 5e $* 2e #ae5e!.

o ac&+ard0loo&ing belie( bJc the statement about his cousin8s mental competency is

based on his past e.periences +ith the cousin)o It is being o((ered to prove that your cousin is as sharp as ever and that is something that

is a past event that you have (ormed a belie( about)

Lust as i( you said that ;I believe that * shot K< that is being o((ered to prove the*C8s belie( about an event that happened in the past)

':) Leer *r$5 5$5 2a #ad 2a 2er dau"2er # "$!" $ "a5(le a=a, all 2er 5$!e,

a#6!" 2e leer re&4e! $ al6 $ 2er.

o Statements o((ered to sho+ that the letter0+riter believed that the cousin +as sane)

o ,here is no e.plicit statement that the cousin is sane' but +e can determine that (rom it

is non0assertive' verbal conduct)

RE "O, hearsay so it is let into court)

,RE HEARSAG this is a verbal assertion that is o((ered to prove the truth o(the matter asserted and ;matter asserted< in ,e.as includes anything impliedbythe statement) ,he cousin8s sanity is implied in this case (rom the (act that thisletter +as +ritten and the probative value o( that belie( is +hat is important

I( it is hearsay' then it is a bac&+ard0loo&ing statement bJc cousin8s

sanity is based on past e.periences so not +ithin state o( mind e.ception)

'K) DC "%e# da5$!d# $ !e&e. 1K da,# laer DC de# a!d &2ldre! =a! da5$!d# (a&6.

o a" +efore she gives diamonds to niece, #* says 1I love my niece more than my

children.2

Hearsay' but it (its +ithin the e.ception)

Pure state o( mind1 this is ho+ she (eels about her niece and her children at the

moment1 relevant to her actions 5 days later)o b" 3 days after giving diamonds to niece, 1I love niece more than my children.2

Hearsay' but (its +ithin the e.ception)

Still relates to her current state o( mind) ,his is ho+ she (eels today and it isrelevant to ho+ she (elt days ago)

o c" -he told her children 1I gave the diamonds to niece, too bad !ids.2

,+o options


21/95

#3% I( o((ered to prove its truth' it is hearsay)

o It +ould not (it into the state o( mind e.ception bJc it is

bac&+ard0loo&ing tal&ing about +hat she did in the past)

#D% I( o((ered as circumstantial evidence' not hearsay)

o Regardless o( its truth' +ould she even say this to her children>

o Part o( +hat ma&es this statement as nonhearsay circumstantialstate o( mind is that she said this to her children1 someone+ouldn8t ma&e this statement to this person in thesecircumstances unless it +as true

o extra" If on day 3 she hands the diamonds to the niece and says 14his is a gift.2

"ot hearsay bJc ;this is a gi(t< is legally operative languageJindependent legalsigni(icance1 the niece can act on it +hether or not the statement +as true)

'nother possibility0 Statement against interest6 this is a statement against *C8specuniary interest1 she doesn8t have it anymore so against her (inancial status

D#!"u#2 (e=ee!

o !hen the statement is simply circumstantial evidence o( state o( mind

;I can8t stand you &ids' I love niece better

o Police o((icer8s purpose> *C8s purpose> oth>

F$ur ea54le# $* =2e! CC ##ue# ar#e

B" -tatement made to an uncover agent6government informer

o *C doesn8t &no+ he is tal&ing to a PO1 PO8s primary ob$ective is to investigate

o "ot *C8s primary purpose to provide the in(ormation but PO8s primary purpose is toget the in(ormation)

o !ho do +e (ocus on>

C" *hild abuse cases

o Statements that childJparent ma&es to doctor under Rule B4?#5%

o *octor as&s -uestion about identity are they doing that (or treatment or to pass the

in(o on to the police>o Primary purpose> Secondary purpose> oth> Is it both (or treatment and (or police>

o Rape cases

!oman goes to the hospital a(ter being raped and evidence is collected

Evidence collection has an investigative purpose' but no ongoing emergency

!ill statements made regarding the investigative (unction be consideredtestimonial or non0testimonial>

@" #omestic violence cases

o PO get *K victims to testi(y early on in a deposition so * theoretically has chance to

cross0e.aminationo *8s attorney probably isn8t ready to cross though and the purpose o( a preliminary

hearing to establish probable cause is very di((erent (rom a trial)o So i( K later doesn8t +ant to testi(y' prosecution can claim that she already testi(ied

D" 8orfeiture by wrongdoing

o I( the * is guilty o( (or(eiture by +rongdoing' the * has +aived the CC claim)

o I( ! does not testi(y bJc * has ;procured< the !8s non0testimony or coerced ! not totesti(y' * cannot raise a CC)

!ith all o( these problems' it is still up in the air)

OHER RULESOHER RULES

Federal Rule 10. Re5a!der $* $r Relaed Wr!"# $r Re&$rded Sae5e!#


37/95


38/95

#3% a +ritten statement made by the +itness that is signed or other+ise adopted orapproved by the +itness1#D% a substantially verbatim recital o( an oral statement made by the +itness that isrecorded contemporaneously +ith the ma&ing o( the oral statement and that is containedin a stenographic' mechanical' electrical' or other recording or a transcription thereo(1 or

#?% a statement' ho+ever ta&en or recorded' or a transcription thereo(' made by the+itness to a grand $ury)

as&in Rule

Mid0trial discovery rule that O":G applies in criminal cases

A(ter a +itness' any +itness other than the accused' (inishes direct e.amination in a CRIMI"A:

case' opposing party is entitled to any ;statement o( the +itness< in the party8s possession thatrelates to sub$ect matter o( direct e.amination testimony #e.) Any deposition' intervie+' etc%

o A(ter Pr calls a ! and ! (inishes testimony' de(ense can get !8s statements that relate

to the +itness8s direct e.amination)o It doesn8t matter +hether the ! loo&ed at it' re(reshed recollection

o *iscovery rule that allo+s the opposing party to get at the +itness8s o+n statement ;Statement< must be a +ritten statement that the +itness made' adopted' or approved)

o Someone else can +rite it do+n i( the +itness reads and signs it)

o Or i( can be a substantially verbatim recital o( an oral statement made by the +itness so

long as it is contemporaneously recorded)o E.) I( you are the prosecutor and you ta&e notes +hile the +itness is tal&ing' that is

"O, a statement o( the +itness' 9":ESS i( you are +riting do+n EKERG,HI" the+itness says that is a substantially verbatim recital and thus a statement)

In Federal C$ur#there is a similar rule +hich is no+ codi(ied in the ederal Rule o( Criminal

Procedure DV)D #basically the same as ,U Rule V3%

CHARACER EVIDENCECHARACER EVIDENCE

Ba#

3) !hat is the character evidence being o((ered to prove>D) May character evidence be o((ered to prove this>?) I( so' ho+ may character be proved>

P$##(le U#e# $* C2ara&er E%de!&e

C2ara&er a# a! Ele5e! $* a Cla5 $r De*e!#e

o In this case' evidence o( a person8s character is direct evidence o( a (act critical to the

case

o W2e!e%er &2ara&er #el* # a! ele5e! $* a &la5 $r de*e!#e e%de!&e $*&2ara&er # ad5##(le.

E.amples

=egligent entrustment or hiring +here plainti(( claims O+ner

negligently entrusted his car to *river' plainti(( must establish as one o(the elements o( his cause o( action that *river +as to the type o( personto +hom a car should be loaned #(or e.) bJc he +as a terrible driver%


39/95

#efamation truth as a *e(ense in a libel or slander case' a de(endant

may asset the de(ense o( ;truth< i( * called plainti(( a ;liar'< Plainti((8scharacter as a liar is an element o( de(endant8s de(ense o( truth)

$ntrapment

*ustody 'ction

9ental *ondition or *ompetency

FRE:0:. C2ara&er E%de!&e N$ Ad5##(le $ Pr$%e C$!du& E&e4$!# O2er Cr5e#

'a) C2ara&er e%de!&e "e!erall,

Evidence o( a person/s character or a trait o( character is NOadmissible (or the purpose o( provingaction in con(ormity there+ith on a particular occasion' e&e4

#3% *haracter of accused0 Evidence o( a pertinent trait o( character o((ered by an accused' orby the prosecution to rebut the same' or i( evidence o( a trait or character o( the alleged victimo( the&r5eonly allowed in criminal cases"is o((ered by an accused and admitted under Rule545 #a%#D%' evidence o( the same trait o( character o( the accused o((ered by the prosecution1#D% *haracter of alleged victim0 Evidence o( a pertinent trait o( character o( the alleged victim

o( the crime o((ered by an accused' or by the prosecution to rebut the same' or evidence o( acharacter trait o( peace(ulness o( the alleged victim o((ered by the prosecution in a homicidecase to rebut evidence that the alleged victim +as the (irst aggressor1#?% *haracter of witness0 Evidence o( the character o( a +itness' as provided in rules V4@'V4Band V4T)

'() O2er &r5e# =r$!"# $r a

Evidence o( other crimes' +rongs' or acts is not admissibleto prove the character of a person inorder to show action in conformity therewith) It may' ho+ever' be admissible (or O,HER purposes'such as proo( o( motive' opportunity' intent' preparation' plan' &no+ledge' identity' or absence o(mista&e or accident' provided that upon re-uest by the accused' the prosecution in a criminal case shallprovide reasonable notice in advance o( trial' or during trial i( the court e.cuses pretrial notice on good

cause sho+n' o( the general nature o( any such evidence it intends to introduce at trial)

RE :0:. C2ara&er E%de!&e N$ Ad5##(le $ Pr$%e C$!du& E&e4$!# O2er Cr5e#

'a) C2ara&er E%de!&e Ge!erall,.Evidence o( a person/s character or character trait is NOadmissible (or the purpose o( proving action in con(ormity there+ith on a particular occasion' e&e4

#3% haracter of accused) Evidence o( a pertinent character trait o((ered6#A% by an accused in a criminal case' or by the prosecution to rebut the same' or#% by a party accused in a civilcase o( conduct involving 5$ral ur4ude' or by theaccusing party to rebut the same1

#D% haracter of victim) In a criminalcase and sub$ect to Rule 53D' evidence o( a pertinentcharacter trait o( the victim o( the crime o((ered by an accused' or by the prosecution to rebut

the same' or evidence o( peaceable character o( the victim o((ered by the prosecution in ahomicide case to rebut evidence that the victim +as the (irst aggressor1 or in a civil case'evidence o( character (or violence o( the alleged victim o( a##aul%e &$!du&o((ered on theissue o( sel(0de(ense by a party accused o( the assaultive conduct' or evidence o( peaceablecharacter to rebut the same1#?% haracter of witness) Evidence o( the character o( a +itness' as provided in rules V4@' V4Band V4T)
http://www2.law.cornell.edu/cgi-bin/foliocgi.exe/fre/query=%5BJUMP:'Rule404'%5D/doc/%7B@1%7D?firsthithttp://www2.law.cornell.edu/cgi-bin/foliocgi.exe/fre/query=%5BJUMP:'Rule607'%5D/doc/%7B@1%7D?firsthithttp://www2.law.cornell.edu/cgi-bin/foliocgi.exe/fre/query=%5BJUMP:'Rule608'%5D/doc/%7B@1%7D?firsthithttp://www2.law.cornell.edu/cgi-bin/foliocgi.exe/fre/query=%5BJUMP:'Rule609'%5D/doc/%7B@1%7D?firsthithttp://www2.law.cornell.edu/cgi-bin/foliocgi.exe/fre/query=%5BJUMP:'Rule404'%5D/doc/%7B@1%7D?firsthithttp://www2.law.cornell.edu/cgi-bin/foliocgi.exe/fre/query=%5BJUMP:'Rule607'%5D/doc/%7B@1%7D?firsthithttp://www2.law.cornell.edu/cgi-bin/foliocgi.exe/fre/query=%5BJUMP:'Rule608'%5D/doc/%7B@1%7D?firsthithttp://www2.law.cornell.edu/cgi-bin/foliocgi.exe/fre/query=%5BJUMP:'Rule609'%5D/doc/%7B@1%7D?firsthit


40/95

'() O2er Cr5e# Wr$!"# $r A.Evidence o( other crimes' +rongs or acts is not admissible toprove the character o( a person in order to sho+ action in con(ormity there+ith) It may' ho+ever' beadmissible (or other purposes' such as proo( o( motive' opportunity' intent' preparation' plan'&no+ledge' identity' or absence o( mista&e or accident' provided that upon timely re-uest by theaccused in a criminal case' reasonable notice is given in advance o( trial o( intent to introduce in the

State/s case0in0chie( such evidence other than that arising in the same transaction)FF ,e.as e.tends the character evidence e.ceptions to civil cases +hich involve ;moral turpitude< orhave a criminal basis) ederal Rule 545 only applies to criminal cases)


3% In a criminal case RE 545 provide that i( an accused o((ers evidence o( a trait o( character o( the

alleged victim' then the prosecution may o((er evidence o( the same trait o( the accused) E.) * says K

+as violent1 P can o((er evidence that * is violent

In a criminal case ,RE 545 does !$allo+ the prosecution to o((er evidence o( the same trait o(

character o( the accused in response to the de(ense o((ering evidence o( that same character trait in the

victim)

D% In civil cases RE provides that an =accused= may o((er evidence o( good character and that the

=prosecution= may rebut)

,RE provides that' in a civil case' a party accused o( =conduct involving moral turpitude= may

o((er evidence o( good character' and that the accusing party may o((er character evidence in rebuttal)

?% ,RE also allo+s a civil party accused o( assaultive conduct to o((er evidence o( the victim/s violent

character)

RE limits this e.ception to criminal cases)

CHARACER EVIDENCE

NEG6 !hy is the evidence being o((ered>

o Sho+ that a person acted in con(ormity +ith that character 0 "O, A::O!E*

I( that character is honest' maybe that the person didn8t commit the crime

I( the character is dishonest' maybe that the person committed the crimeo I( character itsel( an element o( the claim or de(ense

A::O!E*

E. leghorn v. 0ew )or! entral RR operator negligently s+itched thes+itch1 character evidence o((ered to sho+ that RR &ne+Jshould have&no+n that operator +as a drun&ard and they +ere negligent in hiringhim

E.) :ibel charge A says is evil) I( the statement is true # really is evil%'it is a de(ense to libel) : may try to prove character as part o( your de(ense)

o I( character is used circumstantially to prove something O,HER than con(ormity)

E.) Child custody case1 mother +ants to o((er evidence that (ather is a drun&)"ot an element o( claim' but it IS circumstantial evidence o( the better parent)

Ge!eral Rulewe cannot offer evidence of a person0s character if it is offered to show that the

person acted in conformity with that particular character on a particular occasion.


41/95

E.) ,o prove * murdered K' Pr +ants to o((er evidence that * has a violent character

"O, admissible)

!hy do +e &eep this out>

o ,his evidence may in(luence the $ury ,OO much)

o Lust bJc a person acted dishonestly in the past it does not prove he acted dishonestlyon ,HIS particular occasion1 problem is $ury might dra+ this conclusion)

o Luror might see previous instances o( dishonesty and thin& * should be in $ail

+hether or not he is guilty o( ,HIS crime)E&e4$! $ 2e rule' criminal defendant may offer evidence of his E& character to showthat he acted in conformity with that good character and thus didn0t commit the crime.

W2a 6!d $* e%de!&e &a! 2e $**er $ 4r$%e 2#>

o Reputation and opinion0 !s may only testi(y to the de(endant8s reputation in the

community) He may !$o((er evidence o( speci(ic acts to prove his good character)o Hearsay> ;People say that he is honest< o((ered to prove that de(endant is honest)

Hearsay e.ception6 Rule B4?#D3% Reputation as to character)

I( a de(endant puts a character +itness on the stand' he opens his character up (or P to rebut

Pr$#e&u$r &a!

o #3% Cross0e.amine *8s character +itness)

As& -uestions as&ed to impeach *8s good reputation in the community

Pr can as& a reputation +itness called by * +hether she ;has heard

o Aparticular responseto aparticular set of circumstances)

o Regular' repeated response to a particular set o( circumstances o((ered to prove that a

person acted in con(ormity +ith that habit)o E.) Person al+ays hatches gate in morning1 goes up stairs t+o at a time1 drin&s beer

every nighto E.) oode habitually ran stop sign in his neighborhood) I( a case ever came up +here

-uestion o( +hether oode ran sign on a particular day' habit +ould be admissible)

Ho+ever' i( accident +as across to+n' evidence o( oode running the stop sign

in neighborhood +ould not be admissible not same particular circumstances)o ,he more particular it is' the more li&ely it +ould be admissible as habit)

') I* #$5e2!" &$uld

o re-uency and regularity o( the conduct)

*riving by sign thousands o( times' only (ailing to stop ?4 times1 not a habit)

*riving by sign ?4 times and (ailing to stop ?4 times more regular1 habit)

'3) W2a * #$5e2!" d$e#!7

o I( something happens a lot' but doesn8t rise to the level o( habit' it CO9:* S,I:: have

probative value)o I( habit is di((erent (rom character' then Rule 545#a% doesn8t &noc& it out1 so +hy do +e

need Rule 54V> Lust ma&ing clear that C: doctrines have been abolished) ,he admissibility o(

habit evidence doesn8t turn on corroboration or the presence o( eye +itnesses)o H,4$I( doctor gives a +arning in V4 o( the cases' not a habit) Evidence is o((ered on

+hether the doctor gave the +arning)

Still probative) More li&ely than not that doctor gave the +arning in this case)

Argument is that it doesn8t matter that it isn8t a habit' it is probative and there isnothing in Rule 545' 54' 54V to prohibit this type o( evidence)


52/95

SUBSE;UEN RE8EDIAL 8EASURESUBSE;UEN RE8EDIAL 8EASURE

Federal Rule :0. Su(#e


53/95

o H9POPl +or&ing on a road cre+ and his leg is crushed by a piece o( machinery)

A(ter the accident' a mechanic (or the construction company #not someoneassociated +J the machine manu(acturer% ma&es modi(ications to the machinery) Plsues machine manu(acturer claiming de(ective design and (ailure to +arn)

o Pl +ants to o((er into evidence the construction company8s mechanic' a third party'

made modi(ications to the machinery) Manu(acturer ob$ects and claims SRM)o Public policy rationale #not +anting to discourage SRM% doesn8t apply to this case)

It isn8t the manu(acturer8s SRM here1 it is a third party8s changes)o A number o( courts have interpreted Rule 54@ as allo+ing third party changes)

Pr$du la(l, &a#e#

o Court split as to +hether the SMR applies in product liability cases)

Arguments (or admissibility are that #3% neither negligence nor culpableconduct is at issue in such a case and #D% economic (orces compelmanu(acturers to ma&e their products sa(er

o In the (ederal court system most courts held that the SRM rule applies in products

liability cases as it does in negligence cases1 GR # $ e&lude

ea# Rule :0

o EORE D44? 0 ,e.as distinguished bet+een negligence and culpable conduct on one

hand and strict product liability cases on the other allo+ed SRM (or products liabilityunder the rationale that they already +ere as care(ul as they could be)

o A,ER D44? ,e.as no+ doesn8t allo+ SRM to prove negligence' culpable de(ect'

product de(ects' design de(ects or a need (or a +arning or instruction)

SRM in products liability not allo+ed)o 9, paragraph #b% A +ritten noti(ication by a manu(acturer o( any de(ect in a product

produced by such manu(acturer to purchasers thereo( is admissible against the

manu(acturer on the issue o( e.istence o( the de(ect to the e.tent that it is relevant' E.) *ell battery recall customer letter that dell batteries may be de(ective

O!e 5$re 4$!

Although the public policy behind this rule is that +e don8t +ant to discourage people (rom

ta&ing sa(ety measures since +e allo+ SRM evidence (or other purposes' this &inda undercutsthe policy rationale1 gives the relevance rationale a (air amount o( +eight)

CO8PRO8ISE AND OFFERS O CO8PRO8ISE EVIDENCECO8PRO8ISE AND OFFERS O CO8PRO8ISE EVIDENCE

Federal Rule :0. C$54r$5#e a!d O**er# $ C$54r$5#e

Evidence o( #3% (urnishing or o((ering or promising to (urnish' or #D% accepting or o((ering or

promising to accept' a valuable consideration in compromising or attempting to compromise a claim+hich +as disputed as to either validity or amount' is not admissible to prove liability (or or invalidityo( the claim or its amount) Evidence o( conduct or statements made in compromise negotiations isli&e+ise not admissible) ,his rule does not re-uire the e.clusion o( any evidence other+isediscoverable merely because it is presented in the course o( compromise negotiations) ,his rule alsodoes not re-uire e.clusion +hen the evidence is o((ered (or another purpose' such as proving bias orpre$udice o( a +itness' negativing a contention o( undue delay' or proving an e((ort to obstruct acriminal investigation or prosecution)


54/95

ea# Rule :0. C$54r$5#e a!d O**er# $ C$54r$5#e.

Evidence o( #3% (urnishing or o((ering or promising to (urnish or #D% accepting or o((ering orpromising to accept' a valuable consideration in compromising or attempting to compromise a claim

+hich +as disputed as to either validity or amount is not admissible to prove liability (or or invalidity o(the claim or its amount) Evidence o( conduct or statements made in compromise negotiations is li&e+isenot admissible) ,his rule does not re-uire the e.clusion o( any evidence other+ise discoverable merelybecause it is presented in the course o( compromise negotiations) ,his rule also does not re-uiree.clusion +hen the evidence is o((ered (or another purpose' such as proving bias or pre$udice or interesto( a +itness or a party' negativing a contention o( undue delay' or proving an e((ort to obstruct a criminalinvestigation or prosecution)

DIFFERENCE BEWEEN FRE / RE"one

Evidence that a person o((ered to settle a suit or settled a suit cannot be o((ered to prove #3%

liability (or a claim or #D% amount o( damageso H9POP sues * (or 44'444) * o((ers to settle (or 544'444) P turns it do+n) P

+ants to o((er evidence * +anted to settle to prove *8s liability 0NO ad5##(le)o H9POSame situation) P sues *) "o+ P +ants to settle (or 4'444) * says no) At

trial * +ants to introduce evidence that P o((ered to settle this huge claim (or asmall amount so $ury can in(er that P doesn8t have a good claim) NO ad5##(le.

o H9POSuppose P o((ers to settle the suit (or 544'444 and * accepts) Case is

settled) "o+ a second passenger sues * and PD +ants to o((er that * settled +ith P3(or 544'444 so $ury can in(er * is liable) NO ad5##(le.

H9PO;,he accident +as my (ault' but your damage claim is too high) I8ll give you 44 to

settle< I"A*MISSI:E even e.press admissions made in connection =2 settlement

o((ers are e.cluded by as long as there is a dispute either to liability or amount o( damages Rationale%Parties settle claims (or various reasons #not +anting to deal +ith litigation' etc% so

the (act that they settled is not enough to prove anything about the case)

ublic policy rationale +e +ant to encourage settlement and open communication

o :a+yer +on8t ma&e an o((er i( it can be turned do+n and used against his client at trial)

S&$4e

2e &la5 5u# (e d#4ued a# $ %ald, a!d 2e a5$u! $* da5a"e#

o I( * says to P ;It +ill be e.pensive to litigate this) :et8s settle (or D4'444


55/95


56/95

ea# Rule :0. Pa,5e! $* 8ed&al a!d S5lar E4e!#e#.

Evidence o( (urnishing or o((ering or promising to pay medical' hospital' or similar e.penses occasionedby an in$ury is not admissible to prove liability (or the in$ury)

DIFFERENCE BEWEEN FRE AND RE"one)

Evidence that party o((ered or paid medical' hospital' or similar e.penses is not admissible to

prove the paying party8s liability

Bu +hile this o((ering is protected' other statements in connection +ith that are not protected)

o I* you say ;I8m sorry the accident +as my (ault) I +ill pay your medical e.penses although federal lawyers often do it anyways b?c it is effective%)o In(orm ! about the time' place +here previous statement +as made' +ho the

statement +as made to' give ! chance to e.plainJdeny prior inconsistent statemento Rationale#!s ought to be given the conte.t in +hich the prior statement +as made

so they can recall it' admit +hether the statement i( it +as made' e.plain +hy thecontradiction doesn8t really e.ist be(ore +e ma&e the ! out to be a liar

o 'n ,R@ >only re-uirement is that the statement be sho+n to opposing counsel

,RE applies to both +ritten and oral statements1 i( +ritten the +ritten statement doesn8t need to

be sho+n to the ! be(orehando C: re-uired ! see +ritten statement be(orehand1 Pr upset bJc eliminated surprise

I( ! admits to ma&ing the prior inconsistent statement that is the end

o E.trinsic evidence that ! made the prior inconsistent statement O":G allo+ed i(

! denies ma&ing the statement)Su(#a!%e U#e $* Pr$r I!&$!##e! Sae5e!

!8s o+n prior statement * $**ered *$r # ru2is considered hearsay

H9PO Q1

o *K case) ! tells PO H hit her) H is prosecuted) Pr calls ! +ho testi(ies that H

never hit her) Pr +ants PO to testi(y about !8s prior statements)o Statement not allo+ed to prove H hit !' but IS allo+ed (or impeachment purposes)

act that ! made an inconsistent statement sho+s she is a less credible+itness)

o In this case there is no other evidence H hit !) !8s out0o(0court statement to PO is

"O, substantive evidence H hit +i(e only evidence (or $ury not to believe ! as acredible +itness)

o !hen $udge says' ;I admit this (or impeachment purposes' but not as substantive

evidence< that is +hat is going on) H9PO Q

o Pr +ants to o((er the PO8s report +hich records that ! told him that H hit her>

D out0o(0court declarants) #3% PO +riting do+n out o( court that this is +hat !told him and #D% !8s out0o(0court statement that H hit her

I( o((ered to prove the truth o( the matter asserted' +e have double hearsay

ut +hat i( it is only being o((ered (or impeachment purposes #!8s statementbeing o((ered to sho+ that she is not credible% then +e have one level o( hearsay PO8s out0o(0court statement +hich is being o((ered (or the truth o( +hat I,asserts #! $ldhim that H hit her%)

H9PO Q3

o ac& to *K hypo6 ,his time' there is some other evidence that H hit !) "eighbor

testi(ies that he sa+ the (ight through the +indo+ and he sa+ H hit !)o H +ants to &eep the $ury (rom hearing that ! EKER said to the PO that H hit her

bJc H (ears that i( $ury hears that ! made the statement $ury +ill thin& H hit her)

SO8E Pr$r I!&$!##e! Sae5e!# 8a, (e O**ered *$r 2er ru2

Federal Rule 01'd)'1)


69/95

rior statement by witness.,he declarant testi(ies at the trial or hearinga!dis sub$ect to cross0e.amination concerning the statement' and the statement is #A% inconsistent +ith the declarant/stestimony' and +as given under oath sub$ect to the penalty o( per$ury at a trial' hearing' or otherproceeding' or in a deposition' or #% consistent +ith the declarant/s testimony and is o((ered to rebutan e.press or implied charge against the declarant o( recent (abrication or improper in(luence or

motive' or #C% one o( identi(ication o( a person made a(ter perceiving the person1

ea# Rule 01'd)'1)

rior statement by witness.,he declarant testi(ies at the trial or hearing and is sub$ect tocross0e.amination concerning the statement' and the statement is6#A% inconsistent +ith the declarant/s testimony' and +as given under oath sub$ect to the penalty o(per$ury at a trial' hearing' or other proceeding e&e4 a "ra!d +ur, 4r$&eed!" ! a &r5!al &a#e' or ina deposition1#% consistent +ith the declarant/s testimony and is o((ered to rebut an e.press or implied charge againstthe declarant o( recent (abrication or improper in(luence or motive1#C% one o( identi(ication o( a person made a(ter perceiving the person1 or

#*% ta&en and o((ered in a criminal case in accordance +ith Code o( Criminal Procedure article ?B)4@3)


,RE 0 !8s prior inconsistent statements made in a "ra!d +ur, 4r$&eed!"in a &r5!al &a#eare"O, A*MISSI:E)

E.) ! tells grand $ury H hit her Pr can only use statement to impeach !' "O, to proveH hit her)

RE statements made be(ore a grand $ury areadmissible (or the truth o( the matter asserted

!hen Rule B43 +as originally proposed' certain prior statements o( a ! +ho testi(ied at trial

!O9:* be admissible *$r 2er ru2o

Statements inconsistent +ith !8s testimony at trial and +hich ! made under oath'sub$ect to penalty o( per$ury' at a trial' hearing' or other proceeding or in deposition)

E.) *K case ! tells&that H hit her) On stand !i(e says that H didn8t hither) Prosecution +ants to use +i(e8s statement to PO

"O, admissible (or the truth o( the matter asserted1 $!l, a%ala(le

*$r 54ea&25e!)

E.) *K ! tellsgrand (urythat H hit her) Pr +ants to use prior inconsistentstatement made to the grand $ury to prove that H hit !)

A*MISSI:E (or truth o( matter asserted bJc statement to grand $ury

+as made under oath' sub$ect to penalty o( per$ury' at a proceeding)

*irect inconsistency not re-uired)

o e# # =2e2er 2ru# $* ral #ae5e! # !&$!##e! =@ 2ru# $* 4r$r #ae5e!

o E.) ! testi(ies at trial about an event and : +ants to prove that ! said (our months

be(ore' ;I don8t remember anything about the event< admissibleo E.) I( ! (eigns lac& o( memory' courts sometimes allo+ a prior statement o( memory to

impeach !1 not much to impeach thougho E.) I( ! gives a bare0boned testimony at trial and prior had given a very (ull

description is that inconsistent>


70/95

Possibly' especially i( the previous details +ere not (avorable to !8s side andno+ +hen they are giving the testimony they leave those details out)

H9PO*8s lover says at trial that * didn8t commit the murder bJc she +o&e upin the middle o( the night and he +as there)

Pr +ants to use the (act that +hen PO -uestioned her she didn8t

mention +a&ing up) Is this a prior inconsistent statement> Ges) H9PO* says he shot K in sel(0de(ense) Pr o((ers evidence that * +as arrested

t+o +ee&s a(ter shooting and never told anyone he shot K in sel( de(ense)

Can Pr use *8s silence (or t+o +ee&s be(ore arrest to impeach> Ges)

HGPO6 Can Pr impeach * by sho+ing that a*er arrest * &ept silent>

Once * has been given Miranda +arning #right to remain silent%' it is

un(air as a constitutional matter to impeach him +ith the silence)o UU6 Post0arrest' but pre0Miranda +arning silence admissible)

Gou only get to this constitutional issue i( court (inds that the silence isinconsistent +ith *8s later testimony) I( court (inds that silence doesn8t haveany probative value as an inconsistent statement' +e never reach thisconstitutional issue)

'K) BIAS

ea# Rule 13'() Ea5!!" W!e## C$!&er!!" Ba# $r I!ere#.

In impeaching a +itness by proo( o( circumstances or statements sho+ing bias or interest on thepart o( such +itness' and be(ore (urther cross0e.amination concerning' or e.trinsic evidence o(' such biasor interest may be allo+ed' the circumstances supporting such claim or the details o( such statement'including the contents and +here' +hen and to +hom made' must be made &no+n to the +itness' and the+itness must be given an opportunity to e.plain or to deny such circumstances or statement) I( +ritten'the +riting need not be sho+n to the +itness at that time' but on re-uest the same shall be sho+n toopposing counsel) I( the +itness une-uivocally admits such bias or interest' e.trinsic evidence o( sameshall not be admitted) A party shall be permitted to present evidence rebutting any evidence impeachingone o( said party/s +itnesses on grounds o( bias or interest)

N$ *ederal rule $! (a# "$%er!ed u!der Rule# :01-:03.

Ba#+hether ! has reason to (avor or dis(avor * (or some reason independent o( the case

o Personal relationship' animosity against a party' (inancial interest' desire to curry

(avor +ith the other side

SC &$ur &a#e

o ! on probation +J possibility o( having his probation revo&ed) *e(ense claimed !

+as blaming * bJc ! had done it) *e(ense +anted to use this to sho+ !8s bias to

sho+ that ! had a reason to point the (inger at * (or reasons unrelated to this case)Alas&a8s la+s said $uvenile records are con(idential so sho+ing this bias to impeach! +ould violate the la+s) SC said that this violated *8s right to con(ront the+itness and the evidence should be allo+ed to sho+ bias)

RE Rule 13'()

o Re-uirements

:5u#a#6! about bias on cross0e.amination *r#)

I( ! admits to bias' that it is the end o( it "O e.trinsic evidence)


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I( ! does not admit to bias' e.trinsic evidence is permitted)o Practically ho+ it is done in (ederal court as +ell)

: as&s ! about bias (irst1 then sho+s e.trinsic evidence i( he doesn8t admit)

In ,e.as you HAKE to do it this +ay)HEARSA9 DECLARAN

!hat i( the ! is a hearsay declarant>o HGPO6 * charged +J murdering K) * +ants to o((er evidence that K hated * and said'

;e(ore I die' I am going to get * in trouble)< * +ants to sho+ that K is biased) Can *impeach the hearsay declarant> GES7

Federal Rule 0. Aa&6!" a!d Su44$r!" Cred(l, $* De&lara!

!hen a hearsay statement' or a statement de(ined in Rule B43#d%#D%#C%' #*%' or #E%' has beenadmitted in evidence' the credibility o( the declarant may be attac&ed' and i( attac&ed may besupported' (, a!, e%de!&e =2&2 =$uld (e ad5##(le *$r 2$#e 4ur4$#e# * de&lara! 2ade#*ed a# a =!e##) Evidence o( a statement or conduct by the declarant at any time' inconsistent+ith the declarant/s hearsay statement' is not sub$ect to any re-uirement that the declarant may have

been a((orded an opportunity to deny or e.plain) I( the party against +hom a hearsay statement hasbeen admitted calls the declarant as a +itness' the party is entitled to e.amine the declarant on thestatement as i( under cross0e.amination)

ea# Rule 0. Aa&6!" a!d Su44$r!" Cred(l, $* De&lara!.

!hen a hearsay statement' or a statement de(ined in Rule B43#e%#D% #C%' #*%' or #E%' or in civilcases a statement de(ined in Rule B43#e%#?%' has been admitted in evidence' the credibility o( thedeclarant may be attac&ed' and i( attac&ed may be supported by any evidence +hich +ould be admissible(or those purposes i( declarant had testi(ied as a +itness) Evidence o( a statement or conduct by thedeclarant at any time' o((ered to impeach the declarant' is not sub$ect to any re-uirement that thedeclarant may have been a((orded an opportunity to deny or e.plain) I( the party against +hom a hearsay

statement has been admitted calls the declarant as a +itness' the party is entitled to e.amine the declaranton the statement as i( under cross0e.amination)

DIFFERENCE BEWEEN FRE / RE6 N$!e

REHABILIAIONREHABILIAION

2e re2a(la$! e&2!

o enerally this is "O, allo+ed)
http://www2.law.cornell.edu/cgi-bin/foliocgi.exe/fre/query=%5BJUMP:'Rule806'%5D/doc/%7B@1%7D?firsthithttp://www2.law.cornell.edu/cgi-bin/foliocgi.exe/fre/query=%5BJUMP:'Rule801!28d!29!282!29!28C!29'%5D/doc/%7B@1%7D?firsthithttp://www2.law.cornell.edu/cgi-bin/foliocgi.exe/fre/query=%5BJUMP:'Rule806'%5D/doc/%7B@1%7D?firsthithttp://www2.law.cornell.edu/cgi-bin/foliocgi.exe/fre/query=%5BJUMP:'Rule801!28d!29!282!29!28C!29'%5D/doc/%7B@1%7D?firsthit


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Prior &$!##e!statements are not allo+ed to rehabilitate a ! +ho gaveprior inconsistent statements

o E.) Child abuse case : +ants to introduce statements that child said his step0(ather

abused him)

Previously child had said that his step0(ather had not abused him both

consistent and inconsistent stories)o Rationale#i( you sho+ prior inconsistent statement' then you have sho+n that this is

a person +ho tells di((erent stories on di((erent days) I( ! is sho+n to be someone+ho changes stories then o((ering prior consistent statements $ust sho+s that !changes stories even more)

o %Prior consistent statements are all$=ed *$r re2a(la$!+hen u#ed $ re(u

a &2ar"e a"a!# W 2a W 5ade u4 2e #$r, $r 2a# a 5$%e $ le.

I( sho+n that ! told the same story beforethe motive to lie ever arose' that+ould rebut the theory o( the cross0e.amination)

E.) I( * +ants to sho+ that ! has motive to lie bJc he is getting plea bargainand Pr can sho+ that ! told this story be(ore the plea bargain +as o((ered)

Federal Rule 10. Rel"$u# Bele*# $r O4!$!#

Evidence o( the belie(s or opinions o( a +itness on matters o( religion is not admissible (or thepurpose o( sho+ing that by reason o( their nature the +itness/ credibility is impaired or enhanced)

ea# Rule 10. Rel"$u# Bele*# $* O4!$!#.

Evidence o( the belie(s or opinions o( a +itness on matters o( religion is not admissible (or thepurpose o( sho+ing that by reason o( their nature the +itness/ credibility is impaired or enhanced)

Evidence o( !8s religious belie( cannot be o((ered to prove !8s truth(ulness or untruth(ulness)

It may be o((ered (or other purposes)

o E.) I( * is the Catholic Church and ! is a staunch Catholic' : may o((er !8s religious

belie(s to sho+ bias)

CO8PEENC9 OF WINESSCO8PEENC9 OF WINESS

FRERule 01. Ge!eral Rule $* C$54ee!&,

Every person is competent to be a +itness e.cept as other+ise provided in these rules) Ho+ever' incivil actions and proceedings' +ith respect to an element o( a claim or de(ense as to +hich State la+supplies the rule o( decision' the competency o( a +itness shall be determined in accordance +ith Statela+)

RE Rule 01. C$54ee!&, a!d I!&$54ee!&, $* W!e##e#

'a) Ge!eral Rule.Every person is competent to be a +itness e.cept as other+ise provided in these rules),he (ollo+ing +itnesses shall be incompetent to testi(y in any proceeding sub$ect to these rules6

#3%'nsane persons) Insane persons +ho' in the opinion o( the court' are in an insane condition o(mind at the time +hen they are o((ered as a +itness' or +ho' in the opinion o( the court' +ere in thatcondition +hen the events happened o( +hich they are called to testi(y)
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the +itness and #b% help(ul to a clear understanding o( the +itness/ testimony or the determination o( a(act in issue)


FRElimits lay opinion testimony to opinions =not based on scienti(ic' technical' or other specialied

&no+ledge +ithin the scope o( Rule @4D)= FF asically i( the ! is an e.pert under Rule @4D' then heshould be treated li&e one and not be included under Rule @43

5ay witness6 a ! +ho is not testi(ying as an e.pert)

o An ;e.pert< may testi(y as a lay ! +hen she testi(ies about something outside her

(ield o( e.pertise)o Be Care*ul In essays i( you have an e.pert !' loo& to +hat part o( his statement is

e.pert and +hat part o( his statement is lay)

C: Rule6 lay !s not allo+ed to testi(y in the (orm o( an opinion1 only could testi(y about (acts)

o Problem is dra+ing the distinction bet+een (acts and opinions

;Car +as going very (ast< (act or opinion>

;He loo&ed happy< (act or opinion> FRE 01 Opinion ,estimony by :ay !itnesses

o :ay ! may testi(y in the (orm o( an opinion i( t+o re-uirements are met

#3% ,he opinion must be rationally based on the !8s perception)

! must have personal &no+ledge o( the events

#D% It must be help(ul to a clear understanding o( !8s testimony ordetermination o( a (act in issue)

U v %illing6 H too& out li(e insurance on ! then poisoned her) He called T33 and (eigned grie() !survived) ,o avoid suspicion' H planted poisoned Suda(ed on drugstore shelves)

:ay ! testimony6 T33 operator and ambulance driver +ant to testi(y that * +as (eigning grie(

o :ay ! testimony +as allo+ed bJc #3% it +as a rational perception based on !8spersonal &no+ledge and #D% it +ould be help(ul (or the $ury to hear it

"o hard and (ast rule)

Centrality o( the issue is important +ant(uryto determine issues central to case' not a

layperson !W2e! =$uld La, W7# e#5$!, NO (e all$=ed>

RE #c% +as added #not in ,RE% that a ! may testi(y i( it is !$based on scienti(ic' technical

or other specialied &no+ledgeo asically i( ! is an e.pert under Rule @4D' then ! should be treated as an e.pert

o Included bJc :s +ould put e.pert on the stand and say' ;!e $ust +ant to as& him

-uestions as a layperson' not as an e.pert< to get around disclosure re-uirements

Gou can8t do that no+7o A lot o( litigation +here one side says ! is testi(ying as an e.pert and other side

says ! is testi(ying as a layperson

EPER ESI8ON9EPER ESI8ON9

FRERule 0. e#5$!, (, E4er#


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Court acts as gate0&eeper to decide +hether an e.pert8s scienti(ic opinion amounts to scienti(ic

&no+ledgeo #3% ,estimony6 validity o( the relevant scienti(ic test' theory' or principle #and its

general acceptance% may be proved through e.pert testimonyo #D% Ludicial notice6 Once a test' theory' or principle has become su((iciently +ell

established' a court may ta&e $udicial notice o( its validity) E.) Courts do not re-uire proo( o( principles underlying use o( (ingerprinting

o #?% Proper Application6 Even +here underlying principles have been +idely

accepted and no need to present evidence as to their validity' proo( may still bepresented to sho+ that they +ere properly applied in this particular instance)

aubert(actors not al+ays help(ul particularly +hen dealing +J ;so(ter sciences< 0 psychology

o !ith a psychologist testi(ying about battered +omen8s syndrome the *aubert (actors

may not be very help(ul

Courts started using additional (actors including

o !hether there are non0$udicial uses o( the theory or techni-ue the e.pert has used

!as this techni-ue only invented (or the courtroom>o E.tent to +hich the opinion in generated as sub$ective interpretation o( the data

o E.tent to +hich the e.pert has per(ormed research independent o( the litigation

,he more research independent o( the litigation' the more reliable the e.pert isD$e# 2e &$ur "ae-6ee4!" *u!&$! a44l, $!l, $ #&e!*& e4er# $r all e4er#>

SC decides that this gate0&eeping (unction applies to A:: e.perts

Court (ocuses on e.pert8s methodology "O, the conclusion as long as the method is o&ay'

evidence should be admitted)o Ho+ever conclusions and methodology are not entirely distinct (rom one another

o Court may conclude there is simply too much o( an analytic gap bet+een the data and

the conclusion so the testimony is inadmissible

"o+ typical cases involves *aubert hearingso e(ore trial there +ill be a challenge to the admissibility o( a party8s e.pert +itness

#usually de(ense challenging the plainti((8s +itness%o O(ten done at summary $udgment stage bJc i( plainti((8s case re-uires e.pert

testimony and * can &eep e.pert8s testimony out then SL granted (or * +Jo trial

BASES OF OPINION ESI8ON9 B9 EPERSBASES OF OPINION ESI8ON9 B9 EPERS

FRERule 03. Ba#e# $* O4!$! e#5$!, (, E4er#

,he (acts or data in the particular case upon +hich an e.pert bases an opinion or in(erence maybe those perceived by or made &no+n to the e.pert at or before the hearing) I( o( a type reasonably

relied upon by e.perts in the particular (ield in (orming opinions or in(erences upon the sub$ect' the(acts or data need not be admissible in evidence in order (or the opinion or in(erence to be admitted)acts or data that are other+ise inadmissible shall not be disclosed to the $ury by the proponent o( theopinion or in(erence unless the court determines that their probative value in assisting the $ury toevaluate the e.pert/s opinion substantially out+eighs their pre$udicial e((ect)RE Rule 03. Ba#e# $* O4!$! e#5$!, (, E4er#


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,he (acts or data in the particular case upon +hich an e.pert bases an opinion or in(erence maybe those perceived by' revie+ed by' or made &no+n to the e.pert at or before the hearing) I( o( a typereasonably relied upon by e.perts in the particular (ield in (orming opinions or in(erences upon thesub$ect' the (acts or data need not be admissible in evidence)

DIFFERENCE BEWEEN FRE / REFRE adds the (ollo+ing sentence6acts or data that are other+ise inadmissible shall not be disclosed to the $ury by the proponent

o( the opinion or in(erence unless the court determines that their probative value in assisting the $ury toevaluate the e.pert/s opinion substantially out+eighs their pre$udicial e((ect)

,his language states a some+hat stricter balancing test than RE.

Pre#e!a$! $* E4er e#5$!,

Ho+ does e.pert ! gain &no+ledge o( litigated (acts>

acts or data are those perceived by e.pert or that he has personal &no+ledge o(

o E.) ,reating doctor &no+s (acts based on personal &no+ledge bJc he has treated patient)

,raditionally e.perts could testi(y even i( they did not have personal &no+ledge o( the litigated(acts through the hypothetical -uestion)

o ;I you assume these things are true do you have an opinion>< and the e.pert +ould

then give the opinion)

:ots o( criticism o( the hypothetical -uestions

o ave :s chance to give a summation o( their case midstream1 no one listened

Rule 03

Allo+s an e.pert to base his opinion on (act ;perceived by or made &no+n to the e.pert at or

be(ore the hearing)< bJc+hat ma&es a product de(ective is larger than $ust its de(ects and includes a $udgmentabout the costs and bene(its or ma&ing it sa(er)

I( product could be sa(er' but it +ould cost 34'444 a unit it may not bede(ective to not implement that sa(ety mechanism)

o Engineer is not -uali(ied to testi(y about the costJbene(it analysis

o BE CAREFUL !hen you have an e.pert +itness testi(ying as to an ultimate issue'

loo& to +hat the e.pert is being as&ed about and ho+ (ar his e.pertise goes)

FRE 0:'()Hin&ley Pr had OP to prove beyond a reasonable doubt that he +as not insane

o A(ter this Congress changed the de(inition o( insane to put OP on * to prove by a

preponderance o( the evidence that he +as insaneo Rule @45#b% provides that an e.pert' in a criminal case' may "O, testi(y that * had

or lac&ed a particular mental state that constitutes either an element o( the crimecharged OR constitutes an element o( the de(ense)

E.pert cannot come into (ederal court and say' In my opinion' Hin&ley +asinsane)< OLEC,IO" 0 privileged)o Bu i( opposing la+yer as&s * ;!ere you drun&>< 0 * 2a#to ans+er) Cannot say ;AJC

privilege< bJc C is not as&ed +hat he communicated to :1 he is as&ed +hat happened

act that a C tells : does not insulate that in(ormation (rom discovery critical distinction

o ;!hat did you tell your la+yer>< privileged

o ;!hat happened>< not privileged

DEFINIIONS

La=,er

o RE'a)'3) person authoried or reasonably believedto be authoried to practice la+

o Communications to a ;$ailhouse la+yer< #ie guy in the ne.t cell% usually not privilege

bJc no reasonable basis to believe this


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o Communications bet+een C and :8s representative o( a la+yer #paralegal' secretary% are

privileged bJc they are con(idential and made (or purpose o( (urthering legal serviceso I( : sends C to psychiatrist are those communications privileged> C not going to

treatment' $ust going (or a consultation)

Representative o( : is someone employed by : to assist the la+yer in rendition

o( pro(essional legal services1 i( : employed psychiatrist (or rendition o( legalservice then communications to psychiatrist +ill be privileged

I( C never becomes a client o( the la+yer' communications still privileged)

: representing an entity

o Privilege covers communications bet+een C' C8s reps' : and :8s representatives

o Corp can only spea& through its agent so +hich o( the corp agentsJemployees can spea&

(or the C and have those communications be covered by AJC privilege>

Control roup ,est

"arro+ ban o( people considered representative o( corporate client

those +ho had authority to hire : or to act on :8s advice1 usually $ustcommunications bet+een high0ran&ing members o( corp1communications bet+een lo+er0level employee and : not privileged

*iversi(ied industries test #Upjohn% 0 ,EUAS

Communication made by employee to corp : +here employee is

tal&ing bJc told to do it by a superior so : can provide legal servicesto the corp' then communication +ill be privileged

,RE includes ;any other person< in #% communication (rom lo+0

level employees i( made (or purpose o( obtaining legal representative(or the client is covered

Problems +ith representing entity

o I( the lo+ level employee tells the : that he did bad stu(( C is the corporation and

the employee8s in(ormation helps the corporation you have to reveal thato : has to be care(ul not to promise A"G individuals $anitor or CEO

con(identiality bJc the client is the corporation

C$!*de!al, privilege only protects con(idential communications)

o Communication is con(idential i( it is not intended to be disclosed to third persons

e.cept those to +hom the disclosure is necessary (or (urtherance o( legal services

E.) ,ranslator reasonably necessary

E.) Child is client' but parent may be there or a brother or sister to help thetransmission o( the in(ormation does "O, destroy con(identiality

ut u!!e&e##ar,third persons into the room d$e#destroy con(identialityo Measured by intention

I( there is an eavesdropper that does not per se destroy con(identiality

ut i( : and C tal& loudly on plane +here others could easily hear theirconduct could reveal intention not to &eep other people (rom hearing

More careless and didn8t care +hether communication +as overheard' moreli&ely court +ill (ind intention +as not to &eep communication con(idential

D#!&$! (e=ee! A@C =$r6-4r$du& 4r%le"e a!d Pr$* Rule# $* Re#4$!#(l,


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AJC only covers communications bet+een :' C and representative (or litigation and non0

litigation based matters)

!P includes communications and material prepared in preparation (or litigation

o "ot limited to AJC communications1 includes statements made by third parties to :)

I( : tal&s to a ! in preparation (or trial it is covered by !P' but not by AJC)

o !P only arises in anticipation o( litigation or in preparation (or trial1 device to saythat other side can8t use your +or& and your preparation (or trial (or his case)

*istinguishes bet+een core +or& product protected (rom discovery and non0core !P +hich may have to be disclosed to your opponent i( there issubstantial need and undue hardship)

:8s pro(essional obligation to maintain con(identiality under rules o( pro(essional conduct

includes both privileged and unprivileged client in(ormationo 9nprivileged anything else that relates to C that : learned in the course o( or by

reason o( representing the client1 e.tremely broado Rule that &eeps :s (rom disclosing stu(( about C in the loc&er room AJC privilege

does not apply in the loc&er room bJc you aren8t being compelled to tell

:a+yer M9S, reveal con(idential in(ormation

o I( : &no+ C is to commit a criminal or (raudulent act li&ely to result in death or

substantial bodily harmo : must reveal in(o involving candor to court and in truth(ulness in statements to others

E&e4$!# $ 2e A@C Pr%le"e

#D% Claimants through same deceased client

o E.) I( you have an ambiguous +ill and siblings (ighting over it' , may have told :

something that could determine the proper devisee) Sis 3 calls : to stand to testi(y as to+hat , told him about diamonds : can tal& even though this is privileged AJC7

#?% reach o( duty by a la+yer or client

o Client sues : (or malpractice and in order to de(end himsel( : needs to revealcon(idential in(o bet+een : and C)

#% Loint clients

o ,+o or more people coming to : to start a business' clients have a (alling out and are in

litigation) One o( them calls : to testi(y about communications bet+een $oint clients)Loint clients do not have a privilege bet+een the t+o o( them and :1 9, i( third partysues one or both o( the $oint clients' AJC privilege applies)

#3% urtherance o( crime o( (raud

o lar!case) "osy telephone operator +ho eavesdropped on phone call)

Conversation not protected by AJC privilege bJc o( crimeJ(raud e.ception thepart o( the communication that is a crimeJ(raud e.ception is getting rid o( thegun' a (uture crime obstruction o( $ustice7

Part about the murder is a past event and that is privileged)o Rationale#!e don8t +ant people to come to :s to get advice ho+ to commit crimes or

(rauds so +e +on8t have a privilege that encourages clients to do that)

RE K0. P2,#&a!-Pae! Pr%le"e

'a) De*!$!#. A# u#ed ! 2# rule


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#3% A =patient= means any person +ho consults or is seen by a physician to receive medical care)#D% A =physician= means a person licensed to practice medicine in any state or nation' orreasonably believed by the patient so to be)#?% A communication is =con(idential= i( not intended to be disclosed to third persons other thanthose present to (urther the interest o( the patient in the consultation' e.amination' or intervie+' or

those reasonably necessary (or the transmission o( the communication' or those +ho areparticipating in the diagnosis and treatment under the direction o( the physician' includingmembers o( the patient/s (amily)

'() L5ed Pr%le"e ! Cr5!al Pr$&eed!"#.,here is !$ 42,#&a!- 4ae! 4r%le"e ! &r5!al4r$&eed!"#) Ho+ever' a communication to any person involved in the treatment or e.amination o(alcohol or drug abuse by a person being treated voluntarily or being e.amined (or admission to treatment(or alcohol or drug abuse is not admissible in a criminal proceeding)'&) Ge!eral Rule $* Pr%le"e ! C%l Pr$&eed!"#. I! a &%l 4r$&eed!"

#3% Con(idential communications bet+een a physician and a patient' relative to or in connection+ith any pro(essional services rendered by a physician to the patient are privileged and may notbe disclosed)

#D% Records o( the identity' diagnosis' evaluation' or treatment o( a patient by a physician that arecreated or maintained by a physician are con(idential and privileged and may not be disclosed)#?% ,he provisions o( this rule apply even i( the patient received the services o( a physician priorto the enactment o( the Medical :iability and Insurance Improvement Act' ,EU) REK) CIK) S,A,)art) 5T4i)

'd) W2$ 8a, Cla5 2e Pr%le"e ! a C%l Pr$&eed!". I! a &%l 4r$&eed!"

#3% ,he privilege o( con(identiality may be claimed by the patient or by a representative o( thepatient acting on the patient/s behal()#D% ,he physician may claim the privilege o( con(identiality' but only on behal( o( the patient),he authority to do so is presumed in the absence o( evidence to the contrary)

D$&$r-Pae! Pr%le"e

Rationale##3% +e +ant patients to con(ide in their doctors #D% Privacy rationale6 people have

privacy concerns (or their medical records

RE K0'()

o In a CIKI: proceeding' con(idential in(o bet+een doctor and patient is privileged

o *RJPatient and PsychJPatient 0 d$e#!7 a44l, ! &r5!al &a#e#

Patient0:itigant E.ception

o Pl argues * caused his bac& in$ury) * +ants P8s medical records to prove P is (a&ing it1

by bringing the la+suit' P +aives the right to his medical privilege)

!hat about de(endant8s privilege>

o Since * didn8t bring suit' privilege applies and P cannot get *8s medical records)

UU6 In ,RE' the rule states that the privileged doesn8t apply ;+hen any party relies upon the

condition as part o( the claim or de(ense)

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