Evidence Law 3; Best Evidence Rule,

Front 1

WRITINGS

Back 1

Is the offering party trying to prove the CONTENTS of the writing?

Writing or recording: letters, words, numbers written down and typewriting etc..
Photos: all still photography

Have to deal with:
- BER
- Hearsay
- Authentication
(great exam question I would assume - makes you work through EVERYTHING to get through the answer - and do so, demonstrate what you know)

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Best Evidence Rule - Generally

Back 2

Is party trying to prove contents of the writing? Need BER. (I gave $10k, I have receipt - then need it. I paid $10k - don't need it)

- If proving contents of writing,
- Original must be produced
- Unless it is a duplicate (not in CL) that has no genuine question as to its authenticity

No second best evidence rule - if you prove you can't get original then anything else is good.

Doesn't apply to "refreshing memory with writing" - relying on memory, not document.

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BER - Originals and Duplicates

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Original: Writing or recording ITSELF or any counterpart intended to have same effect by person executing or issuing it

Duplicate: Counterpart produced by same IMPRESSION as the original - ACCURATELY reproduces original (treated as an original)

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BER - When you DON'T need original

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LDS/RC; lost, destoyed, second best evidence, refuse to produce, not controlling issue

- All originals lost or destroyed (unless you did it)
- Party refuses to produce original (and they were on notice to)
- Not related to a controlling issue
- No second best evidence, oral testimony or handwritten copy can be used otherwise

- Official record if certified, copy is okay
- Voluminous writings, chart-summary-calculation okay
- Contents produced through testimony or deposition (testify of what was in it without bringing document in)
- Jury decides

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Authentication - 901; Rule and Examples

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Authentication is a condition precedent to introducing a writing - must be enough evidence "sufficient to support a finding" that writing is what we say it is. (conditional relevance standard - reasonable person looks at this and come to a conclusion that it is what the offering party says it is)
Examples:
1) testimony that a matter is what it is claimed to be
2) non-expert opinion as to genuineness o fhandwriting
3) Trier of fact or expert testimony handwriting comparison
4) Appearance, contents, substance, internal patterns, or other distinctive characteristics (boot strapping)
5) ID of voice
6) Phone convos proved by showing "call was made to the assigned number (show that person answering was one called, or call made to place of buisness)
7) Public records/reports
8) ancient document

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Authentication - 902; Self-Authentcation

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Some things DON'T need evidence as to authenticity (they are enough evidence themselves)
1) public documents under seal (or not under seal)
2) Foreign public documents
3) certified copies of public records
4) official publications (books, pamphlets, other...(
5) newspapers and periodicals
6) Trade iscriptions, tags, showing ownership
7) Acknowledge docs (coming with certificate of knowledge)
8) Commercial paper and related docs
9) CERTIFIED DOMESTIC RECORDS OF REGULARLY CONDUCTED ACTIVITY (public record under 803) as long as it his accompanying written certification

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Opinion Evidence - Lay Opinions

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Inclusionary rule, but may testify using "collective facts" which can seem like opinion but are the witness' perceptions that cannot be conveyed without using conclusory opinions (car was going 60mph, driver was drunk)

Question?: Drawing inference or just describing a perception she can't otherwise describe?

NOT BASED ON S, T, or SK.

Supposed to testify of facts, not draw inferences (unless no other way to SHARE the facts) (examples; matters of taste and smell, another's emotions, speed, voice, witness' own intent, intoxication, perception of age, dangerous road conditions. Inadmissible; driver of red car to blame, person had no capacity to work, person suffered from heart trouble)

Rationale - not allowed because the conclusion should be left to the jury to figure out (they are the lay people that matter) FORCE witness to provide as much detail about their perception of events as possible.

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Opinion Evidence - Expert Opinion (qualifications) - 702

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Exception to prohibition against opinion testimony.

- Scientific, Technical, or specialized Knowledge that
- Assists fact finder (beyond common knowledge of jurors) by a
- Qualified Witness (demonstrate background, cross, court decides if qualified, in presence of jury)
- CAN give opinion if:
a) based on SUFFICIENT FACTS and data
b) product of reliable PRINCIPLES and METHODS
c) findings applied RELIABLY (applied) and

- Limited to FACTUAL conclusions (not legal conclusions)

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Opinion Evidence - Expert Opinion (Bases of Opinion testimony) - 703

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- Sources of info that testimony is based on must be good
a) first hand knowledge
b) heard in courtroom
c) info NOT produced as evidence then it must be a TYPE UPON WHICH EXPERTS IN FIELD REASONABLE RELY or
d) A hypo question (c/l)

Type reasonably relied on:
- opinions of other experts
- NOT info from participants or bystanders
- don't disclose this stuff that is not coming into court unless court says probative enough to assist jury to evaluate the expert testimony (403 but EXCLUSIONARY tilt)
- not anything prepared in anticipation of litigation

Hypothetical questions:
-

Front 10

Opinion Evidence - Opinion on Ultimate Issue - 704

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IF the opinion runs to an ultimate fact, that does NOT matter anymore in determining whether or not to exclude it.
- Factual conclusions: okay; driver's excessive speed caused the accident, conditions were unreasonably dangerous, testator had no mental capacity (ALL OKAY)
- Legal conclusions: not okay; D was negligent, D committed mail fraud, PO had probable cause, No mental capacity to EXECUTE will. CAN'T APPLY THE LAW.

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Opinion Evidence - Expert Opinion (Daubert - Reliable) - TPRSA (True-PRSA)

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ALWAYS DISCUSS IF AN EXPERT IS PRESENT ON EXAM
- Old rule; expert testimony not admissible if science isn't "generally accepted" in the field
- Daubert rule; Court is gatekeeper (keep out junk science) to make sure RELIABLE testimony - Look at 1) principles and methods used and 2) Conclusions drawn/generated
a) Tested (Is method tested - or can it be)
b) Peer review and publication (method subjected to peer review?)
c) Rate of error (what is it)
d) Standards (are there standards determining reliability in the field)
e) Accepted (is it accepted in the field)
(non exclusive list - abuse of discretion (highly deferential) - rejection is EXCEPTION rather than the rule)

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Privileges - Attorney Client (RCSCF) Really cool Santa can fart

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- Relationship between Attorney and Client
- Communication by client to attorney (communicative acts too)
- PURPOSE OF SECURING LEGAL SERVICES
- Made in confidence (just those two unless "essential to performance of legal services" - secretary, clerk, paralegal, even Dr.)
- Not for purpose of crime or fraud

- we want full disclosure
- eavesdropper problem: majority, no protection especially if they knew they were eavesdropped on. minority, if they aren't blameworthy then privilege stands
-belongs to client, so he only can waive it, Lawyer leaves communication still protected, only communications, not observations (but exams for case covered), doesn't apply to fees/identity, survives client death,
- work product privilege is NOT absolute, can be overridden fairly easily

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Privileges - Psychotherapist/Patient (LDCF)

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- Licensed therapist (psychiatrist, psychologist, social worker)
- Statements made for purpose of diagnosis or treatment
- Made in confidence
- not for crime
(exception if patient is dangerous - privilege belongs to patient, they can waive it)

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Privileges - Spousal Privilege

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TWO Privileges:
- Adverse Testimony Privilege - Prohibits spouse to testify; covers all evidence (comm's and acts) and requires marriage (ends with marriage) BROAD but ends. Privilege with testifying spouse, if she WANTS to testify she can (not CL - not KY - can't testify even if you want to)

- Confidential Communications Privilege; covers comm's, requires marriage at time of comm, survives end of marriage, confidential NARROW, but doesn't end.

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Privileges - Government Privilege

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Military secrets: gov't owned privilege, sometimes can't even get in camera hearing

Executive privilege: Presumptively privilege but can be trumped by party if they show "necessity in a criminal case - has to be clear"

Confidential Informants: Gov't has privilege to protect their identity
- it is a qualified privilege; if TC judge has doubt as to whether CI actually exists he can make the gov't reveal the name in camera OR
- if D can show that he has a need for the evidence to defend himself, privilege must give way