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103 Cards in this Set

  • Front
  • Back
Relevant Evidence
any evidence having any tendancy to make the existance of an action more probably than without the evidence
Preliminary Questions
The judge not the jury decides whether evidence is admissible, except for conditional evidence
Rule 403 - Probativeness v. Prejudice
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence

Effect: Keeping Evidence Out - if you allow prejudicial evidence in, most likely the appellate courts will say its cumulative and a harmless error. If you keep the evidence out, and it turns out to be non-prejudicial, then a new trial will be ordered.
Subsequent Remedial Measures
Specialize Relevance Rule

Evidence that a D changed or repaired something after it was allegedly involved in an injury is not admissible to establish the D's negligence or the products defectiveness. Can use for the following if they are disputed:

You can use for impeachment.
(ex. Claims there was no hazard at all)
Has to comply with the regular impeachment rules

Can use to prove ownership or control

Can use for the issue of feasibility, if brought up by the defendant
(ex. Claims there was no safer way to handle the situation, wouldn't have improved the safety of the situation, or it was the newest technology)
(not ex. When it is reasonably safer, or more practicable)
Compromise / Offers to Compromise
Specialized Relevance Rules
The fact that a party settled or offered to settle cannot be admitted to prove the issue of the claim's validity
b) Statements of collateral fact or admissions made in connection with settlement offers are likewise not admissible. If statement is otherwise discoverable, then can be admitted (for example to prove bias because someone was paid off)
Payment of medical and Similar Expenses
Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.
Liability Insurance
2) cannot bring in evidence of being insured to suggest that because the defendant was or was not insured, that he probably was/was not careless. Can show
a) For use of proof of agency (ex. The insurance adjuster witness has bias)
b) Proof of ownership or control
c) Or Bias/Prejudice of the witness
Pleas in Criminal Cases
a) offers to plead guilty or otherwise and admissions or statements of fact made during plea negotiation cannot be introduced against the defendant at trial or subsequent civil trials.
b) Can use guilty pleas in subsequent civil cases, if the plea was not withdrawn. The rule only covers pleas that were offered or withdrawn, not actually plead.
Methods of Proving Character
a) Reputation or Opinion - in all cases in which evidence of character or a trait of character of a person is admissible, prove may be made by testimony as to reputation or by testimony in the form of an opinion. On cross examination, inquiry is allowable into relevant specific incidences of conduct
b) Specific Instances of Conduct - In cases in which character or a trait of character of a person is an essential element of a charge, claim or defense, proof may also be made of specific instances of that person's conduct.

3) Specific Incidences of Conduct on DIRECT is only Permitted only when character itself is in issue, like defamation or negligent entrustment cases.
Character Evidence Generally
2) Cannot admit evidence if its only relevance is to support an inference that because a person has a certain type of character, the person acted in a way typical of that character at a particular time
- Applies to all civil cases with no exclusions
- Applies to criminal cases, with exclusions for sexual offenses
Character of the Accused
(on Direct)
A criminal defendant is allowed to introduce evidence about his or her own good character to support an inference that they did not commit the crime (this opens the door to prosecutors bringing in counter character evidence though. Can even bring in specific instances too on cross)

DOES NOT APPLY IN CIVIL CASES - No character evidence is permissible in civil cases
Character of the Accused
(On Cross)
If a prosecutor asks about specific instances on cross-examination, he must rely on however the witness responds, he cannot bring in proof of the specific instance or question.

Can ask about specific instances of bad conduct if he has a good faith belief for beliveving wthat the D actually commited that act, and its relevant to the particular characer trait testified to by the witness.
Character of the Alleged Victim
(on Direct)
1) Criminal defendants can show that the victim was the aggressor by introducing evidence of the victims character for violence (also opens door to counterevidence about the defendant).
Character of the Alleged Victim
(on Cross)
2) Prosecution can show that a murder victim had a peaceful character to rebut a claim made in any way that the victim was the agressor
3) Prosecutor can also bring in evidence of the defendants character in respect to the issue raised about the victim. Can show that the defendant has the same character traits he's claiming the victim has.
Other Crimes of Witness
can't use the fact of a witness' past crimes to prove conformity on this occasion

only requires that a reasonable jury could find that the person committed the bad act (if not convicted of it)

Still subject to 403

Has exceptions
Other Crimes of Witnesses
Can use past crimes/bad acts to show:
Knowledge or Particular Skill
Motive or Common Plan
Identity or MO
Narrative Integrity
Absence of Accident
Doctrine of Chances
Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

its automatic, invariable actions lacking volition
trying to establish that a witness is not to be believed in this particular case. Any party can use impeachment evidence. There is a difference between impeachment and contradiction.
Means of Impeaching a Witness
Attack thier good character (past crimes, bad acts or bad reputation)
- Show prior inconsistent statement
- show that the W is biased
- show that they can't remember well
- contracdict thier testimony
Who may impeach a witness?
Either party may impeach any witness
Character Evidence of Witness
(on Direct)
The character of a witness for TRUTHFULNESS may be attacked on direct in the form of opinion and reputation

Other witnesses may not be called to bolster that witness' credibility for truthfulness unless they have been attacked
Character Evidence of Witness
(on Cross)
Specific instances of bad acts relating to the witness' TRUTHFULNESS may be brought in on cross-examination.
A witness brought in to bolster/attack can be asked about the W1's specific acts.

Must take what the witness says
Impeachment of Witness by Evidence of a Crime
Felony Crimes w/10 years:
Are allowed in if the probativenss is not SUBSTANTIALLY outweighed by unfair prejudiceness

Crimes of dishonesty: shall be admitted regardless of whether it was a felony
Impeachment of Witness by Evidence of a Crime
Felony Crimes w/10 years:
Are allowed in if the probativenss is not outweighed by unfair prejudiceness

Crimes of dishonesty: shall be admitted regardless of whether it was a felony
Crimes of Dishonesty
◊ Forgery
◊ Embezzlement
◊ Bank robbery
◊ Smuggling
◊ Filing false tax return
◊ Using false identification
Extrinsic Evidence to Impeach Genearlly
Not ok for character evidence
Ok for prior inconsistent statements
Sometimes ok for contradiction
Extrinsic Evidence with Prior Statements
Extrinsic Evidence of prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogated the witness thereon, or the interests of justice otherwise require.
Rehabilitation of Witnesses
you can only show prior consistent statements of a witness to rehabilitate them after a charge of recent fabrication.

Can't bring in bolstering witnesses, unless W1's has been impeached somehow
Prior Inconsistent Statements
3) Are statements made out of court before a witness testifies that conflicts with something the witness says at trial
- Only prior statements made under oath are admissible to prove the truth of the statement. If the statement was not made under oath, it can only be used to impeach
Prior Consistent Statements
4) statement that was made out of court before the witness' testimony that reinforces or supports the testimony.
- Consistent statements are admissible only to rebut specific types of attacks on the witness' in court testimony.
- Prior consistent statements does not have to have been made under oath to be used substantively
- Evidence that someone made a prior consistent statement may only be introduced if the proponent shows (1)that the witness' testimony has been acted as recently fabricated or influenced by a motive to lie and (2) the statement was made before the alleged fabrication or motive to lie arose.
Extrinsic Evidence with Prior Inconsistent statements
b) Extrinsic Evidence of prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogated the witness thereon, or the interests of justice otherwise require.
Impeachment by Bias
1) If a party is biased, either against or in favor of a party at a trial, proof of that bias is permitted on the theory that the witness may have shaded his or her testimony in line with it.

1) Family ties
2) Financial ties
3) Membership in organizations
4) Payment by a party to testify
5) Deals with the prosecution
Rape Shield Law
Evidence of sexual activity or reputation is not admissible against a rape victim.
Has exceptions
Rape Shield Exceptions
1. evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence;
2. evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and
3. evidence the exclusion of which would violate the constitutional rights of the defendant.
Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
Hearsay Statement:
a) Spoken words
b) Written words
c) Implied Assertions - a statement that was made with the intent of saying something, other than what the words themselves say. If the evidence is coming in to prove what the person intended to say, then its hearsay.
d) Assertive Conduct - Actions made with the intent to make a statement about something, in the mind of the actor, the actor is trying to say something. This is an assertion.
e) NOT animals, or machines
-Proof of Knowledge
- Warnings
- Circumstantial evidence to prove the speakers state of mind
- non-assertive conduct
-Words of independent legal significance
- verbal parts of acts
- effect of words on speaker
Hearsay Exclusions
- Prior Inconsistent Statements
- Prior Consistent Statements
- Identifications
- Admissions
1. party's own words
2. Adoptive admissions
3. authorized representatives
4. agent/employee
5. Conspiracy
Party's Own words
Anything a party has ever communicated in speech, writing or other way are not considered hearsay.
Adoptive Admissions
Hearsay Exclusion
- When the party himself doesn't particularly say anything, someone else says something, and the party agrees with it, and adopts it as his own. A party's reaction to a statement or action by another person when it is reasonable to treat the party's reaction as an admission of something state or implied by the other person
- Silence can also be treated as an admission - Someone who has heard it and understood it, but doesn't respond. If they don’t respond in a manner in which a normal person would respond, you can bring the silence in as an adoptive statement.
Authorized Representatives
Hearsay Exclusion
- Statements of someone authorized to speak on behalf of someone who becomes a party to a lawsuit. For example, a lawyer.
- A statement is an admission, useable AGAINST the party, if it is made by the party's agent or employee authorized to speak on their behalf concerning something within the scope of the agency or employment during the time of agency or employment.
- A statement is an admission, useable against the party, if it is made by the party's agent or employee concerning something within the scope of the agency or employment during the time of agency or employment.
- The statement itself cannot be proof of the agency, there must be some other evidence to prove that fact.
Conspiracy Statements
Coconspirator's statements are considered admission when offered against another coconspirator so long as the statements were made during and in furtherance of their conspiracy. ---- Co-conspirators are partners who work together to further the conspiracy
Not confessions (as used against the other party)
Not Narriatives of past events
Not finger pointing

A court must have some proof, other than the co-conspirators statement, in order to prove the conspiracy (can't use just the statement to prove that there was a conspiracy
Statements of Identification
1) A witness's out of court statement identifying a person is admissible as substantive evidence of the identification.
- The identifier has to testify. If the person is not available to testify, you can't let it in.
Hearsay Exceptions (availability immaterial)
a) Present sense impressions
b) Excited utterances
c) Statements of current mential, emotional or physical conditions
d) For treatment or diagnosis
e) Past recolection recorded
f) Records
g) Public records
h) Absence of both
Present Sense Impressions
Statement DESCRIBING or explaining an event or condition made WHILE the declarant was perceiving the event of condition, or immediately thereafter
Excited utterances
A statement RELATING to a startling event or condition made while the declarant was under the STRESS of excitement caused by the event or condition
Statements of Current Mental, Emotional or Physical condition
1) A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition such as
- Intent
- Plan
- Motive
- Design
- Mental feeling
- Pain
- Bodily health
But not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification or terms of the declarant's will.

Can't use past belief - I think this happened, therefore it must have happened. Must be I think this is going to happen.
Statements for Medical Diagnosis and Treatment
a) Statements of past medical history as well as current symptoms made for the purposes of medical diagnosis/treatment are admissible.
b) The privilege extends to descriptions of what caused the patient's problem so long as the description is reasonably pertinent to diagnosis or treatment
c) Statement does not have to be made to a doctor, it can be anyone related to the delivery of healthcare can provide the information
Past Recollection Recorded
1) A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, show to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party
Business Records
i) It was made as part of the usual activities of the organization
ii) That a person with knowledge of what the record says made the record or reported the information to a person who created the record
iii) The record was made near the time of occurrence of what it describes.
b) Even if the record meets these requirements, it can be excluded if the circumstances of its preparation indicate a lack of trustworthiness or if the source of the information seems unreliable.
c) For the record to be admitted for substantive treatment, each statement it contains must fit all of the requirements of the rule.
Absence of Business Records
Evidence that a matter is not included in the memoranda, reports, records or data compilations, in any form, kept in accordance with the provisions from above, to prove the nonoccurrence or nonexistence of the matter if the matter was of a kind of which a memorandum, report, record or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate a lack of trustworthiness.
Types of Public Records
1. Activites of the Agency
2. Matters observed pursuant to the duty imposed by law
3. factual findings from investigations
Acitivites of the Agency
Ex. personnel and employment records.

can be introduced by any party, civil or criminal
Matters Observed pursuant to duty imposed by law (excluding police officers)
can be introduced by any party, civil or criminal
Matters Observed pursuant to duty imposed by law (including police officers)
Can be introduced in civil only
Factual findings of investigations
Can be introduced by any party civil, and only by the criminal defendant in criminal trials (can't be used against him)
Absence of Public Records
1) To prove the absence of a record, report, statement or data compilation, in any form, or the nonoccurnce or nonexistance of a matter of which a record, report, statement or data compilation, in any form, was regularly made and preserved by a public office or agency, evidnece in the form of a certification in accordance with rule 902 or testimony that diligent search failed to disclose the rcord, report, statement, or data compilation, or entry.
Ancient Documents
Statements in a document in existence twenty years or more the authenticity of which is established.
Admissible only if witness is unavailable
1. former testimony
2. dying declaration
3. statement against interest
4. pedigree (family history)
5. forfeiture by wrongdoing
- Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement
- Persists in refusing to testify concerning the subject matter of the declarant's statement despite a court order to do so
- Testifies to a lack of memory of the subject matter of the declarant's statement
- Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity
- Is absent from hearing and the proponents of a statement has been unable to procure the declarant's attendance by process of other reasonable means
Former Testimony
a) In civil and criminal cases, testimony at an earlier proceeding or deposition (NOT affidavits) is admissible to prove the truth of what its statements assert if the party against whom the testimony is offered had an opportunity to cross examine the declarant
b) Also admissible if the party's motive to cross examine at the earlier proceeding was similar to the motive the party would have if the witness testified at the current trial
c) For Civil Trials - the requirement of motive and opportuinty to cross examine is met if in the earlier proceeding, a predecessor in interest to the party was present. (interests of the party opposed to the testimony in the prior case were similar to the interests of the party against whom the testimony is sought to be used in the current case.
d) In criminal trials if the D was not a party to the earlier action, cant use the transcript because no predecessor in interest
Dying Declarations
a) Dying declarations can ONLY be used for one topic: the declarant's belief about the cause of his or her impending death
b) Speaker can have a reasonable expectation of death and still survive, and be able to use the declaration. If that is the case, the proponent must prove that the speaker is unavailable.
Statements Against Interest
A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it was true. A statement tending to expose the declarant to criminal liability and offered to EXCULPATE the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
Forfeiture by Wrongdoing
a) Party forfeits the right to exclude a hearsay statement if the party was involved in an act that wrongfully kept the declarant from being a witness.
REsidual Exception
1) A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that
(A) the statement is offered as evidence of a material fact
(B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts and
(C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

Must give notice
Lay Witness Testimony
1) If the witness is not testifying as an expert, the witness' testimony in the form of opinion or inferences is limited to those opinions or inferences which are:
a) rationally based on the perception of the witness, and
b) Helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and
c) Not based on scientific, technical or other specialized knowledge within the scope of 702
Expert Testimony
1) If scientific, technical or their specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by, knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise, if
a) The testimony is based on sufficient facts or data
b) The testimony is the product of reliable principles and methods
c) The witness has applied the principles and methods reliably to the facts of the case
Daubert Method
Determines Validity of expert evidence

a) Can it be tested, and has it?
b) Has it been subject to peer review or been published?
c) What are the potential error rates?
d) Are there professional control standards?
e) Is there any degree of general acceptance in the relevant community?
f) Whether it was developed for purposes other than the current litigation?

Under Kumbo the Daubert method applies to any expert giving technical or specialized knowledge, not just scientific experts or testimony. Basically all experts have to follow these standards
Bases of Opinion Testimony by Experts
1) Can state opinions based on facts that the expert believes to be true because of what the expert has seen or heard
a) at the current trial OR
b) based on facts believed to be true because of observations outside of the trial. (first hand knowledge) OR
c) As a hypothetical question asked by the counsel to the expert
i) Hypos have to have the same or similar fact pattern
2) Does not have to be separately admissible into evidence if it is any data that experts in the field normally use. Even inadmissible evidence may be introduced if it is evidence of a type reasonably relied upon by experts in a particular field.
Opinion on Ultimate Issue by witnesses
1) Opinions of the ultimate issue in the case is permitted except where the mental state of a criminal defendant is concerned
2) Applies to both Lay and Expert Witnesses
The proponent of evidence is required to provide a basis for the fact finder to believe that the matter that is put forth, (document or item) is what it is purported to be. If the object is real evidence then it usually means that the object is THE object that was involved in the event. If it is just demonstrative evidence must show that the object illustrative what it is claimed to illustrate.

Whether a reasonable jury could believe its authenticity
Things to be authenticated
1. testimony of witness on handwriting
2. non-expert opinion on handwriting
3. comparision by trier or expert witness
4. distinctive characterisctics
5. voice identification
6. telephone conversations
7. public records and reports
8. Ancient documents
9. Process or system
Testimony of witness with knowledge
Testimony that a matter is what it is claimed to be.
Non Expert opinion on handwriting
a) If a party claims that a document was written by a particular person, the authentication rule requires that evidence be introduce adequate to support a finding that the document really was written by that individual. Laypersons familiar with that persons handwriting can testify to its authenticity or you can have a handwriting expert testify.

familiarity not acquired for purposes of the litigation.
Distinctive characteristics
ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.
Voice identification
dentification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.
telephone conversations
a) A witness may authenticate a voice by testifying about the familiarity with it if the witness has a reasonable basis for recognizing and identifying the speaker.
b) For phone calls other methods of authentication are also outlines in the rule when there is testimony that a call was made to a number assigned by the telephone company to a person or busines
public records/reports
Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.
ancient documents
a) Ancient documents (older than 20 years) that are found in a place where they would likely be if they were authentic and in a condition that does not create suspicion about their authenticity.
b) Hearsay exception that covers statements made in documents.
process or system
When evidence has been produced by a computer system or scientific device, testimony describing the process or system can serve to authenticate the evidence.
photos or video authentication
a) Can someone authenticate it by saying yes, that's the way it was. They don’t have to be the person who took the picture or who made the video. Doesn't have to be at the time - but if not at the time, can't be used for the proof of the showing in the picture.
Self Authentication
Documents that do not need to be authenticated
1. Domestic public documents under seal
2. domestic public documents not under seal
3. foreigh public documents
4. certified copies of public records
5. official publications
6. newspapers and periodicals
7. trade inscriptions
8. acknowledged documents
9. commerical paper and related documents
10. presumptions under acts of congress
11. certified domestic records of regularaly conducted activity
12. certified foreign records of regularly conducted activity
Best Evidence Rule
reason other than the serious fault of the proponent
Best Evidence Rule Applied
1) If the object's contents are the subject of testimony or sought to be proved for the truth of its terms and contents, the party offering the testimony must provide the original of the writing, document or recording The federal rules are less strict than common law, so occasionally a copy will work.
2) What is an original? Anything which is an absolute duplicate or counterpart can be an original. It just cant be someone typing out what the document said, or just dictating what the document said. You can't put the piece of paper if someone just reads from it either.
3) The document has to stand for itself.
4) Now, any copies produced by an reliable modern method can be admissible
Exceptions to the best evidence rule
1. lost or destroyed
2. Privilege
3. posession by third party
4. original in opponents posession
5. collateral matters
6. Summaries (1006)
7. Adversarial Admission
Lost or Destroyed Exception to the Best Evidence Rule
1) if the original has been lost or destroyed, then someone can testify as to what the original said.
a) Can not be lost or destroyed in bad faith. If there is a claim of destruction in bad faith, the burden is on the party seeking to introduce the destroyed evidence
Privilege Exception to Best Evidence Rule
If the original is unavailable by judicial process, because its privileged.
Posession by Opponent E
When the original is in the hands of the opposing party and they don’t show up with it and refuse to turn it over, then you can just use testimony.
Collateral Matter Exception to Best Evidence Rule
something routine where it isn't worth it to search for a document. For example, you want to show that a person was employed by a particular company, you don’t have to hve the document for every trivial passing issue. The court wont waste its time with it.
Summaries exception to the best evidence rule
allows the summaries of documents or calculations to be admitted into evidence if the originals are available.
Adversarial Admission Exception to the best evidence rule
if the adversary of the document admits the terms of the documents, then its usable to prove the writing.
1) nformation conveyed in a privileged communication cannot be brought into a trial and cannot be a subject for discovery even though the statement may be relevant to a disputed issue.
2) Only the actual statements made in a confidential relationship are kept secret by privilege
not the information behind the statement
Psychotherapist Privilege
1) A patient has a privliege to refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purposes of diagnosis and treatment of his mental or emotional condiction, including drug addiction, among himself, his psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist including members of the patient's family
2) The privliege may be claimed by the patient, his guardian, or byt the personal representative of a deceased pateitn. The therapist may only claim the privilge on behalf of the patient.
Does not apply where the client says they are going to hurt themselves or others
Exceptions to the Psychothereapist Privilege
a) Proceedings for hospitalization
b) Examination by order of judge
c) Condtion is an element of the claim or defense - there is no privilege under this rule as to communications relevant to tan issue of the mental or emotional communications relevant to an issue of the mental or emotional condiition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense, or after the patients death in any proceeding in which any party relies upon the condition as n element of his claim or defense.

Attorney Client Privilege
1) Client has a right not to disclose (and the right to prevent the lawyer from disclosing) any confidential communication between the two of them relating to the professional relationship.
1) Must be intended to be confidential
2) Must be within the scope of confidentiality and
3) Must look to the objective manifestation
2) Covered
a) Communications intended to be confidential from client to lawyer or lawyer to client.
b) Communications made with a legal assistant present
c) Work product - documents, thoughts other made in preparation of litigation
Not included in Attorney Client Privilege
3) NOT Covered
a) NOT the fact that the relationship exists
b) NOT the identity of the client
c) NOT observations made by the lawyer that other third parties could have made
d) NOT physical evidence given to the lawyer by the client
e) NOT where lawyers advice is used in furtherance of a crime
Exceptions to the Attorney Client Privilege
4) Exceptions
a) Crime Fraud Exception - The privilege doesn't apply when the confidence relates to the commission of a future crime.
b) Death of Client - the privilege survives the death of client, but if the suit is a will contest or other property dispute the privilege does not apply
c) Attorney Client Dispute - does not apply when suits between client/attorney
5) Morales - supreme ct would probably hold that the privilege gives way under circumstances in which a person implicates another and then dies.
Spousal Testimonial Privilege
A testifying spouse has the privilege of refusing to testify against his or her spouse only in criminal case. Essentially occurs when the testifying spouse is being asked to be an eyewitness.

1) Applies only if the parties are still married, DOES cover statements made before the marriage took place
2) Available only in CRIMINAL cases
3) Can't testify as to acts
iii. Belongs to: The testifying spouse in federal court. If the D is on trial, and the spouse is on the stand, the D can't prevent the spouse from testifying against him.
Excpetions to the Spousal Testimonial Privilege
1) Spousal or Child abuse cases
2) Matters occurring before the marriage
3) Civil actions
4) Once a divorce goes though.
Spousal Confidental Communications
A statement made in confidence by one married person to another, during the course of the marriage, is privilged. protects against the disclosure of confidential communications made by one spouse to another during the course of the marriage.
Self - Incrimination
1) No person shall be compelled to be a witness against himself
2) Effect:
1) The privilege is individual, can only use their own incrimination.
2) Does not apply to businesses.
3) Only covers testimonial activity
a) so fingerprints, blood and urine samples are not covered under this.
b) When turning over documents would verify that a person had the documents and they are related to the scope of what was asked, its testimonial