Best Evid. Rule, Expert W, & Priv.

Best Evid. Rule

  1. Use Orig. / Duplicate 2 Prove Contents of
    1. Writing / Recording (FRE 1001)3)
      1. Itself / any counterpart intended 2 have same effect
      2. Computer record orig. is printout / othter sight readable output
    2. Photograph (FRE 1001)d)
      1. Negative / positive print
  2. Duplicate is Counterpart
    1. FRE 1001)4
      1. Same impression / matrix
      2. Photocopy
      3. Mechanical / electric re-recording
      4. Chem. reprod.
      5. Other accurate technique
    2. Can's Use Duplicate If
      1. Real quest. about authenticity of orig.'al
      2. Unfair 2 use duplicate
  3. Using Live W's
    1. Can Use 2 Prove Content of What's in W's Head
  4. Exception 2 Use of Orig. / Duplicate
    1. 2ndary Evid.: Lwr Status Than Duplicate
      1. Copy that's not as good as duplicate
      2. Testimony
    2. Use 2ndary Evid. When
      1. Orig. lost / destroyed w/o intent 2 destroy
      2. Orig. unavail. by jud.'al process
      3. Writing is merely collateral
      4. Adversary has them & didn't bring
        1. Would infer worst against party that didn't bring
    3. Jxn'al Pref.
      1. CA & C/L pref. copy 2 testi.
      2. Fed. can use either copy / testi.

Expert Opinion Testi.

  1. Three Cond.'s
    1. Proper Subj.
      1. Something beyond common exp. of lay jurors
      2. Permissive v. mandatory use of expert opinions dep.'ing on subj.'s
    2. Proper Expert
      1. Demo. W is expert by quest.'ing credentials in exp. / degrees
      2. Voir dire before dir. exam by other side 2 see if really an expert
    3. Proper Basis
      1. If science, need valid science
        1. CA's Kelly Frye Rule: testi. based on scientific theory gen'ly accepted by scientific community
        2. FRE 702 consid.'s factors
          1. Testability / if it was tested
          2. Peer rev. & publ.
          3. Acceptable error rate
          4. Gen. acceptance in scientific comm.
          5. Not excl. list
      2. Source of info of experts
        1. Pers.'al knowledge
        2. Learned before / @ hrg
          1. CEC 801)b: Materials rsbl expert would rely on
          2. Materials need not B adm. in evid.
          3. Fed & CA ok 2 rely on other opinion if rsbl but not in C/L
          4. All assumptions in hypo quest.'s must B backed by record already in case / intend 2 put in record
  2. Ultimate Issue Rule
    1. C /L
      1. No lay / expert W may state opinion on issue jury must ultimately dec.
    2. Modern: CEC 805 & FRE 704
      1. If proper opinion, not become improper b/c it strikes on ultimate issue
      2. Expert can't testify 2 factual bldg block
    3. Crim. Case: FRE 704)b
      1. Expert can't testify 2 legal concl. of S/M nec. 4 crime / defense
  3. Destroying Expert W's Through Cross
    1. Attack Qualif. of W / Premise of Opinion
    2. Bias Against Client
    3. Inconsistencies
      1. Own prior testi. / writing
      2. Other people's writing
      3. Treatise / journals
        1. Liberal C/L
          1. Get expert 2 adm. it's authoritative
          2. Est. by other means it's auth.
        2. FRE 803)18: Spec. hearsay exception 2 adm. truth of writing if
          1. Expert explains it +
          2. Est. by some means auth. writing
        3. CEC 721)b: Can't use unless
          1. Adm'ed in evid. over hearsay /
          2. Expert concedes on consid.'ing it

Privilege

  1. Fed. & State
    1. Diversity, Then Use State Priv. (FRE 501)
    2. Fed Quest., Fed. C/L of Priv.
  2. Presume Confid. Comm'n Unless Proven Otherwise
    1. Fed. judge can hold in camera hrg 2 dec. if priv'ed
    2. CA can't
  3. Atty Client Priv.
    1. Reqts
      1. Atty
        1. License 2 pract. / somebody client rsbly thought was licensed
      2. Client
        1. Any body / legal entity seeking legal serv's / rendition
        2. Control group of lwr ranking ee's if
          1. Purpose is 2 get proper legal serv. 4 entity
          2. Ee realize the purpose
          3. Subj. of comm'n w/in ee's duty 2 act on behalf of entity
          4. Ee's were talking 2 atty @ dir. of top people
        3. Holder of priv.
      3. Comm'n Btwn Atty & Client / Their Agents
        1. Info about getting legal serv.
        2. Basic facts not priv.'ed
      4. Confid.
        1. Rsbl expectation won't B overheard / learned by other people
        2. If comm'n made in contemplation of creating atty client priv.
        3. Eavesdropper destroyed confid. in C/L
    2. Exceptions
      1. If comm'n is 2 perpetrate future crime (/fraud in CA)
      2. Client's intent / competence like in transfer of prop. by will / inter vivos
      3. Breach of atty client rel.
    3. Waiving Priv.
      1. Disposing vol'ly subst'l part of priv.'ed comm'n
      2. Failing 2 claim it when have chance 2 do so
      3. Not waived if reveal 2 person w/whom U have priv. rel.
    4. Work Prod. Doc.
      1. Only give work prod. if other side shows good cause + costlier 2 get info through other means
      2. Adversary can get anything used 2 prep. W
      3. No exceptions 4 things like atty's notes but CA exception 4 malpract. / discipline axns
  4. Dr. Pat. Rel.
    1. Not Exist 4 Fed.
    2. Broader Than Atty Client B/C Protects
      1. Comm'n
      2. Dr.'s observation about pat.
      3. Result of med. test that Dr. perf's
    3. Pat. Holder
    4. Exceptions
      1. Crim. cases
      2. Future crime / tort
      3. Pat. in litig. tendered issue of own phys. condition
      4. Pat. is civil D
      5. Breach of Dr. pat. duties
      6. Property disposition by will / intervivos
      7. Report req'ed by govt
      8. Competency / commitment prcg
  5. Psychotherapist Pat.
    1. Holder is Pat.
    2. Wide Def. of Psychotherapist
    3. Same Exceptions as Dr. Pat.
      1. Future crime / tort
      2. Pat. in litig.
      3. Breach of therapist pat. duties
      4. Prop. disposition
      5. Report req'ed by govt
      6. Competency prcg
    4. Dif. Exception
      1. Sanity of crim. D
        1. Exception if ct. appt's therapist 2 see if D sane
        2. Still priv'ed if D asks ct. 2 appt. therapist 4 benefit of D
      2. Therapist has rsn 2 believe dang. 2 self / others
  6. Marital Priv.'s
    1. Spouse W Priv. / Status Priv.
      1. Only req. validly married @ X of prcg
      2. Rts not 2 testify against spouse + not 2 B called 2 W stand by adversary w/o consent
      3. Apply 2
        1. CA, all prcg's where govt has pwr 2 compel testi.
        2. Fed. & C/L, only crim. where spouse is accused D
      4. Holder of priv.
        1. Fed. & CA, testifying spouse
        2. Min. C/L, party spouse
      5. Exception
        1. Civil suit brought / defended by 1 spouse 4 benefit of other
        2. Commited crim. act before marriage
        3. If 2nd marriage, axn against former spouse 4 failure 2 support
    2. Marital Comm'n Priv.
      1. Reqts
        1. Valid marriage @ X of comm'n, not trial
        2. Confid. comm'n during valid marriage
          1. Incl's assertive conduct
          2. Maj. excl. nonassertive conduct
          3. Min. incl. nonassertive conduct if something that wouldn't have been done in front of anybody except spouse
      2. Apply 2 all cases in CA, C/L, & Fed.
      3. Holder of priv. is both spouses
      4. Exception
        1. Comm'n 2 aid / enable anyone 2 plan / commit crime / fraud
        2. Crim. D spouse offers marital comm'n
    3. Exceptions 2 Both Priv.'s
      1. Sues other spouse
      2. Commitment, guardian / competency
      3. Charged w/crim. against other spouse / relative of either spouse
      4. Bigamy
      5. Failure 2 support 1's spouse / child
  7. Priv. Against Self Incrim.
    1. 5th Amend.
      1. No person … shall B compelled in any crim. case 2 B a W against himself
    2. Testifying Waives Both Priv. of Accused & Every W Priv.
    3. Priv. of Accused
      1. Accused person in crim. case has rt. not 2 B a W
        1. Accused in crim. is person taken in custody / deprived of free axn
        2. Not 2 B a W is not 2 give testimonial evid. against U'rself
      2. Can reassert priv. even if thrown away @ earlier pt. of prcg
      3. Approp. jury instruction
        1. Not think about D's choice 2 exercise Const'al rt.
        2. Ok 4 judge 2 instruct even if D asks not 2
      4. if testified, waived extent of dir. exam scope & must ans. all of prsec'ors cross even if tend 2 incrim.
    4. Every W Priv.
      1. Rt 2 refuse 2 discl. any matter that may tend 2 incrim.
        1. Applies 2 all W's in any govt prcg w/pwr 2 subpoena & contempt
      2. Scope
        1. Can't claim priv. if double jeopardy / S/L prevent from punish.
        2. Rt not 2 ans. quest. if it forms even smallest link in chain of circ'al evid. 4 element of crime
      3. Waiver & Incrim.
        1. If reveal any fact tending 2 incrim., waived any lesser detail
        2. But rt. not 2 ans. if tend 2 incrim. further
    5. Immunity 2 Force Testi.
      1. Use & Derivative Const'al
        1. Can't use any info revealed / derived from revealing in prosec.'ing U
      2. Trxn'al
        1. Can't prosec. 4 any crim. quest.'ed, whether find out through own investig. / not
      3. Jxn'al Issue
        1. If 1 jxn grant immunity, other jxn can't use either
        2. 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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