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223 Cards in this Set

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What makes evidence "relevant?"
If it has ANY TENDENCY to make a material fact more probable or less probable than would be the case w/out it.
All relevant evidence is admissible, unless what?
There is (1) some specific exclusionary rule applicable, or (2) the court makes a discretionary decision to exclude it based on one of six pragmatic considerations.
What pragmatic considerations may a court consider, in its discretion, as to whether to admit relevant evidence?
(1) Danger of unfair prejudice; (2) confusion of issues; (3) misleading the jury; (4) undue delay; (5) waste of time; and (6) unduly burdensome.
In a civil case, when could a plaintiff's prior accident history be admissible?
Only if the CAUSE of the plaintiff's injuries are at issue. Otherwise, this is just character evidence.
Billy Joel drove into a lamp-post and sues the city in negligence, alleging that the placement of the post created a hazardous condition. (a) On the issue of contributory negligence, should the city be allowed to introduce evidence that Billy has frequently driven into other stationary objects?
No - this is just general character evidence showing a character for carelessness.
What if Billy claims that the accident injured his shoulder, and the city wants to show that Billy's shoulder was injured when he crashed into a tree a year before the lamp-post incident?
Yes, b/c this shows that the injury was not caused by the defendant.
When may other accidents involving the defendant be admissible?
If the other accident(s) occurred UNDER SUBSTANTIALLY SIMILAR CIRCUMSTANCES, and (1) show existence of dangerous condition; (2) causation of the accident; or (3) prior notice to the defendant.
Assume from the Billy hypo that several other vehicles had collided w/ the same lamp-post that he ran in to. Could Billy introduce those other accidents against the city?
Yes, IF other collisions occurred under substantially similar circumstances. This is b/c the evidence tends to show a dangerous condition, causation, and prior notice.
T/F. Prior similar conduct may be admissible to raise an inference of the person's intent on a later occasion.
True.
Paris sues Brewski Co. for gender discrimination. She seeks to show that Brewski hired no women, despite their qualifications, during the past six years. Admissible?
Yes. Brewski's treatment of other candidates tends to show discriminatory intent towards Paris.
When may evidence of a person's habit(s) be admissible?
When it serves as circumstantial evidence of how the person acted on the occasion at issue in the litigation.
What are the defining characteristics of "habit?"
(1) Frequency of conduct; and (2) particularity of conduct.
Distinguish habit evidence from character evidence.
Character evidence merely refers to a person's general disposition or propensity; whereas habit it much more particular and narrowly tailored to the issue at hand.
Plaintiff calls Britney to testify that during the six months prior to the accident, she had seen Lindsay run red lights, change lanes w/out using signals and run stop signs throughout town. Admissible as habit evidence to prove that Lindsay ran the stop sign at Hickory and Main?
No - this is general propensity. It fails as to particularity. This issue is about the stop sign at Hickory and Main, not a character for careless driving.
Britney will testify that she has seen Lindsay run the stop sign at Hickory and Main on at least eight occasions w/in a two week period. Admissible as habit?
Yes - this satisfies both frequency and particularity.
When may evidence of how others in the same trade or industry have acted in the recent past?
When it is offered to show how a party in the present litigation should have acted, i.e., as evidence of the APPROPRIATE STANDARD OF CARE.
What types of evidence are generally barred on the grounds of public policy?
(1) Liability insurance; (2) subsequent remedial measures; (3) settlements; (4) plea bargains; and (5) offers to pay medical expenses.
Evidence that a person has or does not have liability insurance is inadmissible for the purpose of ________________.
Proving fault or no fault.

Policy - To avoid risk that a jury will base its decision on availability of insurance instead or the merits of the case.
What are the exceptions to the general inadmissibility of liability insurance evidence?
Admissible to show (1) proof of ownership/control of instrumentality or location, IF THAT ISSUE IS CONTROVERTED BY THE DEFENDANT; or (2) for the purpose of impeachment of a witness.
Rosie fell down a well on Trump's property. She sues Trump, contending that the well was impossible to see b/c of overgrown foliage. Trump denies that he was negligent and also defends, in the alternative, that he did not own the land in question. Should Rosie be allowed to introduce evidence that Trump carried a homeowner's liability insurance policy on the land?
Not for purposes of proving negligence, but yes for the purpose of showing ownership of the land, b/c Trump controverted the issue of ownership.
Same case. Trump calls Apprentice, who testifies that she had been on Trump's property just prior to the accident and there was no foliage covering the well. May Rosie show, during cross of Apprentice, that Apprentice is a claims adjuster employed by the company that issued the homeowner's policy to Trump?
Yes - This is used to impeach Apprentice on the grounds of bias.
How should a judge deal w/ evidence that is admissible as to one issue, but inadmissible as to another issue?
Limiting instruction - tell the jury to consider the evidence only for the permissible purpose.
Post-accident repairs, design changes, or policy changes are inadmissible for the purpose of __________________.
Proving negligence, culpable conduct, product defect, or need for warning.

Policy - To encourage post-accident repairs and avoid future accidents.
Subsequent remedial measures may be admissible, however, for __________________.
Proving (1) ownership/control; or (2) feasibility of safer condition; IF EITHER IS CONTROVERTED BY DEFENDANT.
Penny burnt her mouth from Dante's coffee. She seeks to introduce evidence that after the accident, Dante's installed new thermostats on its brewing equipment. Penny contends that this conduct is an admission by Dante's that better safety controls were feasible. Admissible?
No - the issue is not controverted by Dante's. A mere denial of negligence is not a controversion of feasibility.
Same case, except that Penny contends that Dante's negligence consisted of the failure to place warnings on its coffee cups indicating that its coffee was too hot for human consumption. Dante's defends, in part, on the ground that it was impossible to affix labels to its cups. Penny seeks to introduce evidence that after the accident, Dante's began to use cups that were pre-printed w/ warnings. Admissible?
Yes - Dante raised the issue of feasibility himself, and it was thus controverted.
In the event of a disputed civil claim; settlements, offers to settle, and statements of fact during settlement discussions are inadmissible for the purpose of ____________.
Showing liability.

Policy - To encourage settlement.
What are the exceptions to the general settlement evidence ban?
(1) It is admissible for the purpose of impeachment of witnesses for BIAS. (2) Statements of fact made during settlement discussion in civil litigation w/ a GOV'T AGENCY are admissible in a later CRIMINAL CASE. (Think Enron).
On their way home from Jersey Shore, Vinny and Pauly were simultaneously struck by a car driven by Snooki. Vinny and Pauly both filed suit, each seeking $100,000. Snooki denies all allegations. Before trial, Vinny settled w/ Snooki for $50,000. At trial, Pauly sought to introduce the settlement as evidence that Snooki, in effect, acknowledge her fault. Admissible?
No - Blatantly violates the rule against using settlements to prove fault.
Before Pauly's case when to trial, Pauly and Snooki met to discuss possible settlement. During the discussion, Pauly said "I'll accept $50,000 in settlement. So what if I was jay-walking?" Snooki declined. At trial, should Snooki be allowed to introduce (1) Pauly's offer to settle and (2) Pauly's admission that he was jay-walking?
(1) No - offer can't be used to show a weak case.
(2) No - statements of fact in settlement discussions are inadmissible to show admission.
At the trial of Pauly's case, Snooki called Vinny as a witness and Vinny testified to the effect that Snooki did not drive negligently. On cross, should Pauly be allowed to prove the Vinny-Snooki settlement?
Yes - Impeachment on the grounds of bias.
The settlement exclusion applies only if, at the time of the settlement discussion, there was _________________.
A CLAIM that is DISPUTED as to EITHER (1) the validity of the claim or (2) the amount of damages.
A's and B's cars collided. B immediately ran up to A and said "Look, I'll settle w/ you for $100,000 if you don't sue." Should A be allowed to introduce B's statement against him at subsequent trial?
Yes - There is no disputed claim as to either its validity or the amount of damages.
After the previous collision, A sent a latter to B saying, "The accident was all your fault. I demand that you pay my damages in the amount of $100,000." B called A and said "You're right about the accident. It was all my fault and I owe you the full $100,000 you're asking for. But you know how fickle juries can be. If you don't accept $50,000 now, you'll have to sue me to get anything. Should A be allowed to introduce B's statements against B at subsequent trial?
Yes - There is a claim, but there is no dispute as to the validity of the claim or the amount of damages. Even though B wanted to pay half, he admitted that he owed the full.
What if B had said, "It was all my fault, but you didn't suffer $100,000 in damages."?
The evidence would be inadmissible. It only takes a dispute as to EITHER validity or damages to block ALL STATEMENTS.
Arnold sold toxic "Terminator" action figures to the public. The EPA sued him for civil penalties. He denied liability. In negotiations w/ the EPA, he offered to settle for half the amount sought, admitting during the discussions that the toys were toxic. Thereafter, the Gov't prosecuted Arnold for violating criminal laws against the distribution of toxic toys. In the criminal case, as evidence of Arnold's guilt, should the Gov't be allowed to introduce his offer to settle w/ the EPA?
No - settlements and offers of settlements w/ gov't agencies are inadmissible.
What about Arnold's admission to the EPA that the toys were toxic?
Yes - statements of fact during settlement discussions w/ gov't agencies are admissible to show guilt in criminal proceedings.
In plea bargaining discussions, the following are inadmissible:
(1) Offers to plead guilty, (2) withdrawn guilty pleas, (3) nolo contendere pleas, and (4) statements of fact made during any of the following plea discussions.
T/F. A guilty plea is admissible in subsequent litigation based on the same facts.
True. This is based on the rule of party admissions, and is not covered by plea bargaining exclusions.
Evidence that a party has paid or offered to pay a victim's medical expenses is inadmissible to prove liability, but this rule does not exclude __________________.
Statements made in connection w/ an offer to pay hospital or medical expenses. Lesson - offer to pay, but say nothing else.

Note - There is no need for a disputed claim here.
Donna's car hit pedestrian Pablo. Donna immediately ran to Pablo and said (a) "Don't worry about a thing. I'll pay for your hospital bills. (b) I'm sorry I ran the red light." Which statement(s) are admissible against Donna?
(a) Inadmissible - policy exclusion.
(b) Admissible - There is no settlement discussion, no dispute, and it is not protected merely by being in connection w/ the offer to pay medical bills.
What are three potential purposes for the use of character evidence?
(1) Where a person's character is an essential element in the case; (2) where used to prove conduct in conformity w/ character at the time of the litigated event; and (3) a witness's bad character for truthfulness to impeach credibility.
In a criminal case, evidence of a defendant's character to prove conduct on a particular occasion is inadmissible during _______.
The prosecution's case-in-chief.
Can a defendant introduce character evidence of himself?
Yes
What are the consequences of a defendant introducing character evidence of himself?
It opens the door to rebuttal by the prosecution, thereby allowing them to introduce character evidence against the defendant.
Rambo is charged w/ murder. During its direct case, should the prosecution be allowed to introduce evidence that Rambo has been convicted three times for assault, has a bad reputation for violence, and he recently stampeded a herd of cattle through the middle of a town?
No - This is just evidence of bad character and propensity for violence.
Should the prosecution's proposed evidence be admitted on the ground that defendant's violent character is an essential element of the crime w/ which Rambo is charged?
No - It's not an element of the crime. IT NEVER IS IN CRIMINAL CASES.
During the defense, Rambo calls Trautman to testify: (1) "I'm familiar w/ Rambo's reputation for peacefulness, and it is excellent. (2) I personally know Rambo, and in my opinion he is a peaceful person." Admissible? For what purpose?
Yes - to show Rambo's peaceful character.
When character evidence is admissible through a character witness to prove conduct in conformity, the proper forms are:
(1) Reputation, and/or (2) opinion.
Could Trautman properly testify: "I've seen Ramo turn the other cheek when assaulted by bullies; just last week he was elected President of the local Pacifist Club."
No - This is not reputation or opinion; it's specific acts, which are not allowed for character evidence.
Could Trautman properly testify, "Rambo's reputation for bravery and honesty is excellent"?
No - irrelevant character traits.
If the defendant has opened the door by calling a character evidence, the prosecution may rebut in two ways:
(1) Asking "have you heard" or "did you know" questions about defendant's prior acts that reflect adversely on the particular character trait that the defendant introduced. The prosecution must have a good faith basis for the question; and/or (2) by calling its own reputation/opinion witness to contradict the defendant's witness(es).
During the defense, Rambo called Trautman to testify to Rambo's peaceful character. Could the prosecutor ask Trautman, on cross, (a) "Have you heard that Rambo was arrested last year for assaulting Rocky?" (b) "Did you know that Rambo shot Judge Dredd three years ago?"
Yes as to both - This is a test of a character witness's knowledge of the defendant and a test of the soundness of the witness's opinion.
If Trautman denies having heard or knowing of the arrests or bad acts mentioned by the prosecutor, may the prosecutor prove that they actually occurred?
No - He must take the answer of the witness.

Rationale - Pragmatic concern that it's just not worth it.
Could the prosecutor proper ask Trautman, "Have you heard (or did you know) that Rambo cheated on his income taxes last year?"
No - irrelevant character trait implicated.
Assume Rambo introduced Trautman's favorable character testimony. After the defense rests, the prosecution calls Murdock to testify that he has known Rambo for 20 years, is familiar w/ Rambo's reputation for peacefulness in the community, and that such reputation is bad. Rambo's attorney objects on the ground that this is impermissible character evidence.
Overruled - Allowed b/c the door is open.
Assume that the only witness who testified during the defense was Rambo himself, and he testified only to the fact that he did not commit the murder. After the defense rests, the prosecution calls Murdock to testify that Rambo has a reputation for violence. Rambo's attorney objects on the ground that this is impermissible character evidence.
Sustained - Rambo only testifies as to facts, not character.
When may a defendant introduce evidence of a victim's character?
He can introduce evidence of the victim's violent character to prove the victim's conduct in conformity, i.e., as circumstantial evidence that the victim was the first aggressor.
What is the proper method for such evidence?
Just like any other character evidence - witness testimony as to reputation or opinion.
How can the prosecution respond to such evidence?
(1) They may defend the character of the victim; AND (2) may attack the defendant's character. (Double-door).
Defendant Bobby has been charged w/ assault for throwing a chair at Tonya. Bobby claims that Tonya started the fight and lunged at him w/ a knife. To prove that Tonya was the first aggressor, Bobby calls Nancy to testify that she knows Tonya and that in her opinion, Tonya is a very violent woman.
Admissible.
Nancy testifies that she had been the victim of a knife attack by Tonya a few years ago.
Inadmissible. No specific acts can be used for violent character evidence.
What is the "separate rule of evidence?"
Where a defendant is arguing self-defense, he can introduce evidence of the victim's violent reputation or prior SPECIFIC ACTS of violence to show the defendants state of mind - fear - to help prove that he acted reasonably in responding as he did to the victim's aggression.
What if Bobby offers evidence that, at the time of the altercation w/ Tonya, he was aware of her prior knife attack on Nancy?
Admissible - Separate rule of evidence.
What is the effect of a "rape shield law?"
In both criminal and civil cases, where defendant is alleged to have engaged in sexual misconduct, (1) opinion or reputation evidence about the victim's sexual propensity, or (2) evidence of specific sexual behavior of the victim; are ordinarily inadmissible.
What three exceptions are allowed by rape shield laws?
(1) Specific behavior of the victim to prove that someone other than the defendant was the source of semen or injury to the victim; (2) victim's sexual activity w/ the defendant if the defense of consent is asserted; or (3) where exclusion would violate the defendant's right of due process. (Love Triangle Defense)
T/F. Character evidence is ordinarily admissible in civil cases.
False - In civil cases, character evidence is generally inadmissible to prove conduct in conformity.
A sues B for automobile negligence. During the plaintiff's case-in-chief, A seeks to offer evidence of B's reputation for careless driving. Admissible?
No - general character evidence.
During the defense, B calls Witness to testify that, in her opinion, B is a prudent and careful driver. Admissible?
No - general character evidence.
Nicole's estate sues OJ for wrongful death damages, alleging that OJ intentionally killed Nicole. During the defense, may OJ properly introduce evidence of his peaceful character?
No - The civil action exclusion is across the board. It does not matter that the underlying act complained of is criminal.
Evidence of a person's character is admissible in civil actions where such character is an essential element of a claim or defense. In what three situations can this arise?
(1) Tort action for negligent hiring or negligent entrustment; (2) defamation; or (3) a child custody dispute, as to which parent is better.
P was struck in 2004 by a truck being driven by Charlie, who was acting w/in the scope of his employment for Acme Trucking. P sues Acme, alleging that Acme was negligent in hiring Charlie in 2003 and thereafter allowing him to driving on their behalf. P introduces the testimony of character witnesses that Charlie had a reputation for being a careless driver, and that they have a low opinion of his driving. Admissible?
Yes - This is an element of the claim, that Acme knew or should have known of Charlie's reputation.
P sues Newspaper for libel based on a story in which P was accused of being dishonest. To support its defense of "truth," Newspaper introduces reputation, opinion, and specific act evidence about P's dishonesty. Admissible?
Yes - Whether Newspaper told the truth in their article is an essential element of the claim.
In a matrimonial dispute, H and W contest the custody of child X. On the fitness of each parent to have custody, each offers reputation and opinion testimony from witnesses. Admissible?
Yes
Other crimes or specific bad acts of defendant are not admissible during the prosecution's case-in-chief if the only purpose is _______.
To suggest that b/c of defendant's bad character he is more likely to have committed the crime currently charged.
But, a defendant's bad acts or other crimes may be admissible to show ___________.
Something specific about the crime currently charged - separate and apart from mere propensity to commit the crime.
What are the five most common non-character purposes for introducing "bad acts" evidence?
MIMIC - (1) Motive, (2) intent/state of mind, (3) mistake/accident or lack thereof, (4) identity, and (5) common scheme or plan
T/F. If a MIMC category is satisfied, the prosecution still must wait for the defendant to open the door w/ favorable character evidence.
False - MIMIC bad acts have nothing to do w/ character evidence; it may be introduced in the prosecution's case-in-chief.
Defendant is charged w/ the murder of Officer Johnson. The prosecution seeks to prove that Defendant was convicted and imprisoned five years ago for narcotics sales in the aftermath of an investigation and arrest made by Officer Johnson. Defendant objects on the ground of impermissible character evidence. What ruling?
Overruled - This evidence can be used to show that Defendant had a motive to murder Johnson.
Defendant is charged w/ possession of narcotics w/ the intent to sell. He defends on the ground that he was merely a possessor and user - not a seller - of the drugs. The prosecution seeks to prove that Defendant sold drugs a year ago in the vicinity of the arrest in the current case. Admissible?
Yes - Shows his intent to sell the drugs on the current occasion.
Lizzie is accused of intentionally killer her mother w/ an ax. Defense: accident. Prosecution seeks to show that Lizzie threw a knife at her mother during a family quarrel one week before the mother's demise. The evidence: (a) is admissible b/c it show Lizzie's propensity for violence? (b) Is admissible b/c it shows the ax incident was not an accident.
(a) No
(b) Yes
D is charged w/ the armed robbery of a Wal-Mart in Indianapolis early in the afternoon of July 1. Defense: mistaken identity. Prosecution seeks to introduce evidence that around noon of July 1, D robbed a Penney's and a Sears in Indianapolis, in the same vicinity of the Wal-Mart.
That's admissible - It tends to identify D b/c of his close vicinity and similar conduct.
Defendant is prosecuted for robbing the First National Bank. Defense: alibi. Prosecution introduces evidence that the robber wore a red ski mask, carried a .38 caliber gun and used a uniquely worded stick-up note. Prosecution then seeks to prove that Defendant used the same modus operandi when robbing the Second National Bank a year ago.
Yes - This tends to identify Defendant as the perpetrator in the FNB robbery. Modus operandi goes to identity, not common scheme or plan.
Defendant is charged w/ robbing the FNB. The prosecution seeks to prove that two days before the robbery, Defendant stole a white Acura from a neighbor in the same town. The robber of the FNB used a what Acura for the "getaway."
Yes - Could show that the theft of the getaway car is part of a common scheme to rob the bank, i.e., part of one overall transaction.
What is/are the method(s) of proving MIMIC-purpose crimes?
(1) By conviction; or (2) by evidence that proves the crime occurred, such that a reasonable juror could conclude that defendant committed the other crime.

Upon defendant's request, prosecution must give pretrial notice of intent to introduce MIMIC evidence. In all cases, court must also weigh probative value vs. prejudice and give limiting instruction if MIMIC evidence is admitted.
T/F. MIMIC evidence can also be used in civil cases?
True - If relevant, can also be used in civil cases, such as fraud or assault.
T/F. The FRE allow introduction of prior specific sexual misconduct of a defendant as part of their case-in-chief to prove that the defendant has a propensity for sex crimes.
True - Most states do not allow this.

Note - No reputation or opinion evidence is allowed for this purpose.
What should you be looking for any time you see a writing in an evidence question?
Authentication, best evidence rule, and hearsay.

Obviously, relevance too.
If the relevance of a writing depends upon its source or authorship, a showing must be made that the writing is ______.
Authentic/genuine, i.e., that it is what it purports to be.
What must the evidence offeror do, in the absence of a stipulation as to a writing's authenticity, for the writing to be admissible?
Lay a foundation.
In what four ways can a writing be shown to be authentic?
(1) A witness's personal knowledge; (2) proof of handwriting; (3) the ancient document rule; and (4) the solicited reply doctrine.
In authenticating a writing, how is proof of handwriting achieved?
(1) Layperson opinion; (2) expert comparison opinion; or (3) jury comparison.
What is the "ancient document rule"?
Authenticity may be INFERRED if: (1) the document is at least 20 years old; (2) it is facially free of suspicion; and (3) is found in a place of natural custody, e.g., in the desk drawer of the author.
What is the "solicited reply doctrine"?
A document can be authenticated by evidence that it was received in response to a prior communication to the alleged author.

Ex: P mails contract offer to X, properly addressed and posted, and later receives an acceptance purportedly signed by X.
During plaintiff's case-in-chief, Witness testifies that, in her opinion, document was written by X b/c she is familiar w/ X's handwriting. X advises the judge that he intends to testify during the defense that the document is a forgery and argues that the judge cannot admit the document into evidence until the judge is personally convinced that the document was written by X. Good argument?
No - pursuant to the conditional relevancy standard, i.e., the document is admissible if the court determines that there is sufficient evidence from which a reasonable juror could conclude that the document is genuine.
What is a self-authenticating document? What are the six types?
It's presumed authentic - no need for foundation testimony: (1) official publications; (2) certified copies of public or private records on file in public office; (3) newspapers or periodicals; (4) trade inscriptions and labels; (5) acknowledged documents (notary certification); and (6) commercial paper.
How are photographs authenticated?
A witness may testify on the basis of personal knowledge that the photograph is a "fair and accurate representation" of the people or objects portrayed.
Alice testifies that she observed the auto accident that occurred at the intersection of Hickory and Elm Streets on July 1. She is shown a photograph and asked whether it is a fair and accurate portrayal of the Hickory and Elm intersection as she remembers it on July 1. "Objection: No foundation that Alice was the photographer." What ruling?
Overruled - Foundation witness does not have to be the photographer; just needs personal knowledge of the intersection.
What is the definition of the "best evidence rule"?
A party who seeks to prove the contents of an ORIGINAL WRITING must either PRODUCE the original writing, or provide an ACCEPTABLE EXCUSE FOR ITS ABSENCE.

If the court finds the excuse is acceptable, the party may then use secondary evidence - oral testimony or a copy.
What does the definition of "writing" encompass?
Documents, sound recordings, X-rays, and films.
Bubba ordered 100 pounds of shrimp from Gulf Shrimp Co. pursuant to a written purchase order. In his suit for breach of contract, Bubba takes the stand and testifies, "I didn't get what I ordered. The purchase order called for 3" jumbo shrimp and they delivered 1 mini-shrimp." Objectionable?
Yes - The purchase order is the best evidence of what the contract required.
There are two principal situations where the best evidence rule apples:
(1) Where the writing is a legally operative document, i.e., the writing itself creates rights and obligations. E.g., patents, deeds, mortgages, divorce decrees, written contracts; and (2) witness is testifying to facts that she learned solely from reading about them in a writing.
Tommy is charged w/ detonating a bomb. No one witnessed the detonation, but it was captured by an unmanned surveillance camera. Jack testifies that he watched the film and it clearly shows Tommy was the bomber. Objectionable?
Yes - Although the film is not legally operative, Jack is only testifying as to what he saw on the video; he has no personal knowledge of the bombing.
When does the best evidence rule not apply to witness testimony to facts that exist on a writing?
When a witness w/ personal knowledge testifies to a fact that exists independently of a writing that records the fact.
Jack is prosecuted for giving perjured testimony at a congressional hearing into the use of torturing during the interrogation of terrorist suspects. At trial, a congressional aide offers to testify to what Jack said during the hearing. T/F. The aide's testimony is improper b/c the transcript is the best evidence of what Jack said.
False - The aide has personal knowledge of the hearing, which occurred regardless of the transcript.
Jack, claiming he worked a 24-hour shift, sues Boss for nonpayment of wages and failure to reimburse for expenses. W/out producing any documents, Jack testifies, "I worked 24 hours and my expenses were $15 million." Boss objects - "Best evidence rule. Produce the time sheets and expense receipts."
Overruled - Jack has personal knowledge of his hours and expenses, regardless of the time sheets.
W/out producing any documents, Boss testifies: "Jack's time sheets show he worked only 20 hours, and the receipts show only $10 million in expenses." Objectionable?
Yes - Best evidence rule - Boss is merely testifying as to what he saw on the time sheets and expense reports.
What qualifies as an "original writing"?
(1) Whatever the parties intended as the original; any counterpart intended to have the same effect; any negative of film or print from the negative; computer print-out. (2) Duplicate - any counterpart produced by any mechanical means that accurately reproduced the original (e.g., photocopy, carbon copy).
What is the rule as to the admissibility of duplicates?
Duplicates are admissible to the same extent as originals UNLESS it would be unfair (photocopy/fax fuzz) or there is a genuine question as to the authenticity of the original.
How does one give an adequate excuse for the non-production of an original?
Persuade the court by preponderance of the evidence that the document (1) is lost or cannot be found w/ due diligence; (2) was destroyed w/out bad faith; or (3) cannot be obtained w/ legal process.
There are three types of writings that, though technically subject to the best evidence rule, can bypass it:
(1) Voluminous records, which can be presented through a summary or chart, provided the original records would be admissible and they are available for inspection; (2) certified copies of public records; and (3) collateral documents, which may be proven by secondary evidence if the court, in its discretion, finds that they are collateral.
What are the basic things that make a witness "competent"?
He has (1) personal knowledge, and (2) makes an oath or affirmation of his testimony.
T/F. A witness is ordinarily incompetent if they have a direct legal stake in the outcome of the litigation.
False
What is a "Dead Man's Act"?
1/2 of the states have such statutes, providing that, in civil actions, an interested witness is incompetent to testify in support of his own interest against the estate of a decedent concerning communications or transactions between the interested witness and the decedent.
Shania sued Elvis for breach of an oral contract. Elvis denied that any contract was made. Elvis died before trial. (a) May Shania testify to what Elvis said and did in negotiating the contract? (b) May Shania's friend Faith, who witnessed the making of the contract, testify to what Elvis said and did?
(a) Yes, under the FRE; but no in a state w/ a Dead Man's Act

(b) Yes, under both the FRE and states w/ DMAs
T/F. Leading questions are generally allowed on direct examination of a witness.
False
T/F. Leading questions are generally allowed on cross examination.
True
When are leading questions allowed during direct examination?
(1) Preliminary introduction, (2) youthful/forgetful witness, (3) hostile witness, or (4) adverse party/control of adverse party
What is the general rule regarding refreshing a witness's recollection?
Witnesses may not read from a prepared memorandum, and must testify on the basis of current recollection. But, if a witness's memory fails him, he may be shown a memorandum (or any other tangible item) to jog his memory.
Homer's house was burglarized two years ago, and several valuable items were stolen. He sued his insurer for failing to pay the loss covered by his policy. While on the stand, he has trouble remembering all of the stolen items. To refresh his memory, the attorney shows him a copy of the list of missing items that Homer prepared for the police the day after the burglary. Insurer objects on the ground of lack of authentication, best evidence rule, and hearsay. What ruling?
Overruled - Can show ANY writing to witness to refresh his memory.
If Homer's memory is refreshed, may he then read the list into evidence?
No
What three rights does the adversary have in response to the opposing side using something to refresh a witness's recollection?
Has the right to (1) inspect the memory-refresher, (2) use it on cross-examination, and (3) introduce it into evidence.
What is the hearsay exception for "past recollection recorded"? What is the proper foundation?
It allows the contents of a writing that fails to jog the witness's memory to be read into evidence by the same party. Foundation: (1) showing the item to the witness fails to jog his memory; (2) witness had personal knowledge at former time; (3) writing was either MADE or ADOPTED BY THE WITNESS; (4) making or adoption occurred WHILE THE EVENT WAS STILL FRESH IN THE WITNESS'S MEMORY; and (5) witness can vouch for accuracy of writing when made or adopted.
After laying a foundation, Homer's attorney seeks to introduce Homer's memorandum into evidence as an exhibit. Proper?
No - Can only be read into evidence.
May the insurer have the memorandum introduced as an exhibit?
Yes
A lay witness's OPINION is admissible if:
(1) It is rationally based on the witness's perception (personal knowledge); and (2) it is HELPFUL to the jury in deciding fact.

Examples: drunk/sober, speed of a vehicle, sane/insane, emotions of another person, handwriting.
What are the basic qualifications for an expert witness?
(1) Education, and/or (2) experience.
What is the proper subject matter of expert witness testimony?
Scientific, technical, or other specialized knowledge that will be HELPFUL to the jury in deciding fact.
What is the prior basis of an expert's opinion?
The expert must have an opinion based on "reasonable degree of PROBABILITY or REASONABLE CERTAINTY."
An expert witness may draw upon three permissible data sources:
(1) Personal knowledge (e.g., treating physician); (2) other evidence admitted at trial, made known to the expert by HYPOTHETICAL QUESTION; or (3) facts outside the record (hearsay), if of a type reasonably relied upon by experts in this particular field in forming opinions.
Dr. Seuss, a board-certified child psychiatrist, testifies, "In my opinion, w/in a reasonable degree of medical probability, Cubbins' preoccupation w/ hats is a disabling psychosis. My opinion is based on (1) my own clinical interviews and tests of Cubbins; (2) exhibits 1 and 2 in evidence - MRI test results, medical offical records of Dr. Grinch; (3) interviews of Cubbins' friends Wump, Gump, and Thump; and (4) a written report prepared by Dr. Sam I Am. As to items (3) and (4), this is the type of information that psychiatrists like me customarily rely upon in making evaluations." Hearsay objection. Result?
Overruled - These are proper bases of expert opinion.
Should Dr. Seuss be permitted to testify further, "Let me read to you what Wump said during our interview . . . and here's what was in Dr. Sam I Am's report"?
No - May only state in general terms what he relied upon out of court. He is not allowed to disclose the actual contents to the jury.
Expert opinion must not only be relevant, but also ________.
Sufficiently RELIABLE.
What are the four principal factors to determine the reliability of principles and methodology used by experts to reach an opinion?
"TRAP" - (1) Testing of principles or methodology; (2) Rate of error; (3) Acceptance by other experts in the same discipline (NOT general acceptance); and (4) Peer review and publication.
What are three principle rules regarding the use of a learned treatise in aid of expert testimony?
(1) On direct examination of a party's own expert, relevant portions of a treatise, periodical, or pamphlet may be READ INTO evidence as SUBSTANTIVE EVIDENCE if established as a reliable authority; (2) on cross-examination of opponent's expert, can be READ INTO evidence to impeach and contradict opponent's expert, which comes in as SUBSTANTIVE EVIDENCE; but (3) cannot be introduced as an exhibit.
T/F. Lay or expert opinion testimony is permissible even if it addresses an "ultimate issue" in the case (e.g., in a DUI case, layperson testifies that X "seemed drunk").
True - But all other requirements for opinion testimony must be satisfied, including the requirement that the opinion is HELPFUL. E.g., conclusory opinions w/ legal jargon are not helpful.
In a personal injury case, Defendant is alleged to have been driving recklessly at the time of the car accident. Witness who observed the event testifies that Defendant looked angry, smelled of alcohol, and drove away from the scene at 80 mph. Witness then states, "It looked to me as though Defendant was engaged in conduct constituting a reckless disregard for the safety of others." Objectionable?
Yes - The witness's opinion is not helpful as to the last statement. It's just legal jargon from a statute or case opinion - not helpful to the jury.
What "ultimate issue" objection is still proper in a criminal case?
When an EXPERT seeks to give direct opinion that the defendant did or did not have a relevant MENTAL STATE.
In a criminal case, expert witness testifies, "D's insanity prevented him from understanding that he was shooting at the victim in this case." Objectionable?
Yes - The expert can only testify in general terms about the effects of a defendant's mental condition w/out linking it to the particular case.
In the same criminal case, the expert witness testifies, "D has schizophrenia. A person w/ such disease cannot distinguish fact from fantasy." Objectionable?
No - This is in sufficient general terms w/out a link to the present case.
T/F. A party has a right to cross-examine any opposing witness who testifies at the trial.
True - Significant impairment of this right will result, at a minimum, in striking of the witness's testimony.
What is the proper subject matter of a cross-examination?
(1) Matters WITHIN THE SCOPE of direct examination; and (2) matters that test the witness's CREDIBILITY.
When may a party bolster the credibility of its own witness?
Not until his credibility is first attacked.
Plaintiff calls Witness 1 to the stand. Witness 1 testifies that she saw Defendant's car run the red light. Defense counsel states that she has no questions for the witness. After Witness 1 steps down, Plaintiff calls Witness 2 who testifies, "Witness 1 has a good reputation for truthfulness." Objectionable?
Yes - Witness 1's credibility was never attacked.
Witness 1, after testifying that she saw Defendant's car run the red light, then testified, "I told everyone at work the next day that I had seen Defendant run the red light." Objectionable?
Yes - This is an inadmissible prior consistent statement. There has been no attack on his credibility, the statement has only minimal probative value, and it's hearsay.
What is the hearsay exclusion regarding prior consistent statements?
A witness's PRIOR IDENTIFICATION OF A PERSON.

Note - The witness who made prior identification must testify at trial and be subject to cross right then.
Efforts to impeach one's own witness are __________.
Permitted w/out limitation.
What two possible ways are there to use impeachment methods?
(1) Ask the witness about the impeaching fact w/ the aim of having the witness admit it - "confronting the witness"; and (2) prove the impeaching fact w/ extrinsic evidence.
What are the seven methods of impeachment?
(1) Prior inconsistent statements; (2) bias, interest, or motive to misrepresent; (3) sensory deficiencies; (4) bad reputation or opinion about witness's character for truthfulness; (5) criminal convictions; (6) bad acts w/out conviction that reflect adversely on witness's character for truthfulness; and (7) contradiction.
An impeaching fact may be proven w/ extrinsic evidence as to the following methods:
ALL, except BAD ACTS and contradictory facts that are COLLATERAL.
For the impeachment methods that allow extrinsic evidence, is it necessary to ask the witness about the impeaching fact before the extrinsic evidence is introduced?
No, except as to BIAS.
T/F. Any witness may be impeached by showing that on some prior occasion, he made a material statement that is inconsistent w/ his testimony.
True
When may prior inconsistent statements be introduced to both impeach and as substantive evidence?
If the statement is made (1) orally under oath; and (2) as part of a formal hearing, proceeding, trial, or deposition.

Note - Hearsay exclusion.
Defendant is sued for negligence in a multi-vehicle accident in which he was driving his Suburban. Witness testifies for plaintiff that she saw the Suburban run the stop sign. On cross, may Defendant's counsel seek to establish that a few days after the accident, Witness told the police that the Jeep Cherokee, not the Suburban, ran the stop sign?
Yes, but only to impeach. The statement was not made under oath in any formal proceeding.
What if Witness made her prior inconsistent statement about the Jeep Cherokee during a pretrial deposition in which she gave sworn testimony?
Then this would also be admissible to prove that the Jeep ran the stop sign and not the Suburban.
What is the rule regarding confrontation of a witness who made a prior inconsistent statement?
The confrontation timing is flexible: there is no requirement to immediately confront the witness. But after proof by extrinsic evidence, Witness must be given an opportunity at some point to return to the stand to explain or deny the prior inconsistent statement.
What is the exception regarding confrontation of a witness who made a prior inconsistent statement.
When the witness is an opposing party. The evidence can be used as substantive evidence as a PARTY ADMISSION.
In an auto accident case, Plaintiff testifies that she was wearing her seat belt. Defendant does not cross-examine her. During the defense, Defendant calls Joe, who testifies that Plaintiff told him, at Joe's bar a week after the accident, that she had NOT been wearing her seat belt. Should Plaintiff's motion to strike be granted on the ground that Plaintiff was not given an immediate opportunity to explain or deny the inconsistency?
No - There is no such requirement.
Is the Plaintiff's statement admissible to impeach Plaintiff AND as substantive evidence that she was not wearing her seat belt?
Yes - It's a party admission.
With impeachment efforts underway, must a witness be confronted w/ alleged bias while on the stand?
Yes
If the confrontation prerequisite is met, may bias be proven by extrinsic evidence?
Yes
What type of subject matter could be used to impeach a witness on the ground of sensory deficiencies?
Anything that could affect the witness's perception or memory.

Purpose - To suggest a mistake.
(a) Is confrontation required for sensory deficiency impeachment?
(b) Is extrinsic evidence allowed for sensory deficiency impeachment?
(a) No

(b) Yes
(a) Is confrontation required for bad reputation or opinion impeachment?
(b) Is extrinsic evidence allowed for such impeachment?
(a) No

(b) Yes
What is the method of bad reputation or opinion impeachment?
Same as any other character evidence: call a character witness to testify that Target Witness has a bad reputation for truthfulness, or that character witness has a low opinion of Target Witness's character for truthfulness.
Larry testifies for the prosecution that he saw Defendant commit the crime. During the defense: Defendant calls Al to testify that Larry has a lousy reputation for truthfulness among members of Al's congregation, and in Al's opinion, Larry is not a truthful person. Admissible to suggest Larry's testimony is false?
Yes
May Al follow up his opinion as follows: "Let me tell you how I reached my opinion of Larry. During the past year, he lied to me on six separate occasions."
No - Specific acts from character witnesses are not allowed.
What types of convictions are admissible for the purpose of impeachment?
(1) Convictions of ANY CRIME as to which the prosecution was required to prove a FALSE STATEMENT AS AN ELEMENT have AUTOMATIC ADMISSIBILITY; and (2) ANY FELONY, but may, in the DISCRETION of the court, be excluded if the probative value on the issue of the witness's credibility is outweighed by danger of unfair prejudice to a party.
What is the time limitation for past conviction impeachment evidence?
As to both categories, the conviction, or release from prison, whichever is later, generally must be w/in 10 years of trial. If more that 10 years have elapsed, the conviction may not be used for impeachment, unless the proponent shows SUBSTANTIAL probative value as to witness's character for truthfulness.

Note - All convictions have DISCRETIONARY admissibility after 10 years.
Defendant is prosecuted for arson. At trial, Defendant testifies on his own behalf, urging that the fire was an accident. On cross, may the prosecution properly ask the defendant whether he was convicted eight years ago for the misdemeanor of income tax fraud?
Yes - This has automatic admissibility, b/c a false statement is an element of fraud and it happened less than 10 years ago.
May he ask Defendant whether he was released from prison a year ago for his misdemeanor conviction for possession of marijuana?
No - A false statement is not an element of possession, and it's not a felony.
May he ask Defendant whether he was convicted two years ago for the misdemeanor of shop lifting?
No - A false statement is not an element of shop lifting, and it's not a felony.
May he ask Defendant whether he was released from prison three years ago for a murder conviction?
Yes - This is a felony that occurred less than 10 years ago, but it is in the court's discretion.
Assume that prosecutor argues that the murder conviction should have automatic admissibility b/c Defendant, in the course of perpetrating the crime, lied to the victim about his identity in order to gain access to the victim's apartment for the purpose of killing him. What ruling?
No - Felony convictions for which a false statement is not an element of the crime are not automatically admissible. It does not matter that a false statement was involved in the overall transaction.
T/F. A proponent is required to confront witness before introducing a record of conviction.
False
The only permissible procedure for inquiry about bad acts w/out conviction reflecting adversely on a witness's character for truthfulness is ________________.
Confrontation on cross.
In order to ask the witness about prior bad acts for impeachment purposes, the cross-examiner must have a _________.
Good faith basis for the inquiry.
Permission to make the inquiry as to a witness's prior bad acts is in the court's _________.
Discretion
T/F. If the witness denies the prior bad act, the cross-examiner may prove the bad act w/ extrinsic evidence.
False - He must take the answer he receives.
But, proof w/ extrinsic evidence may still be allowed if the bad act is __________________.
Relevant for some purpose other than bad character for truthfulness.
Witness gives favorable testimony for Defendant. On cross, Plaintiff asks Witness whether she assaulted her mail carrier two years ago (no charges were brought). Permissible?
No - This is irrelevant to truthfulness.
After Witness testifies for Defendant, Plaintiff asks Witness whether she made false statements in an application for food stamps in July 2001 (no charges were ever brought). Permissible?
Yes - This is relevant to Witness's character for truthfulness, but admissibility is in the court's discretion.
In the same cross-examination, Witness vehemently denies making false statements in the application for food stamps. May Plaintiff thereafter call a welfare agent to prove that Witness made false statements?
No - He must take Witness's answer.
Prosecution of Michael for embezzlement of the office petty-cash fund. Dwight testifies for Michael. On cross, Dwight is asked whether he was arrested three years ago for passing counterfeit money. Objectionable?
Yes - An arrest does not equal a conviction. He should've just asked about the act w/out the arrest part.
Prosecution of Donald. Winston testifies for the prosecution. On cross, Winston is asked whether he was arrested a month ago for selling marijuana and is awaiting trial on those charges. Objectionable?
No - This evidence is relevant apart from truthfulness - his arrest is a source of BIAS. He has a motive to favor the prosecution so he can get a better deal.
Extrinsic evidence is not allowed for the purpose of contradiction if the fact at issue is ________.
Collateral
In an auto accident case, Witness testifies for Plaintiff that, while leaning against a maple tree near the intersection of Boardwalk and Park Place on March 1, he saw that the traffic light was red for Defendant as Defendant's car entered the intersection and hit Plaintiff. On cross, Witness is asked, "Isn't it true that the tree at the intersection is an oak?" May Defendant properly prove that the tree at the intersection is an oak tree?
No - This is collateral.
On cross, Witness is asked, "Isn't it a fact that the traffic light was not functioning at all on March 1?" May the Defendant properly call a police officer to testify that the traffic light at the intersection was not functioning at all on March 1?
Yes
When may a party seek to rehabilitate its own witness following impeachment?
When the impeachment clearly suggested that the witness was LYING - NOT MERELY MISTAKEN.
What is the proper procedure for witness rehabilitation?
Character witness
When may a witness's prior consistent statement be used to rebut a charge of fabrication and thus rehabilitate his testimony?
It's admissible to rebut the charge if the statement was made BEFORE THE MOTIVE TO FABRICATE AROSE.
Brad v. Jennifer. On July 1, pedestrian Brad was struck by a car driven by Jennifer. Angelina, a stranger to Brad and Jennifer at the time, witnessed the accident and told the police on July 1 that Brad looked sober as he crossed the street. At trial, six months later, Angelina testifies for Brad, "He looked sober as he crossed the street." On cross, the only question Angelina is asked is whether she was convicted eight years ago of income tax evasion, to which she answers, "Yes." On re-direct, may Angelina properly testify that she told the police on July 1 that Brad had looked sober?
No - There is no basis for the prior consistent statement's introduction.
Assume that on cross of Angelina, she is asked "Isn't it a fact that after this accident, you and Brad became close friends and are now living together as lovers?" to which she answers, "Yes." On re-direct, may Angelina properly testify that she told the police on July 1 that Brad had looked sober? If so, for what purpose?
Yes - To rehabilitate Angelina's testimony AND as substantive evidence.
What privilege laws apply in federal court actions arising under federal substantive law?
Principles of common law as they may be interpreted by the federal courts in the light of reason and experience.
What privilege laws apply in federal court actions based on diversity jurisdiction?
The federal court must apply the privilege law of the state whose substantive law is applicable.

Here, the federal courts must also apply state law on competency and state law on burdens of proof and presumptions.
The attorney-client privilege applies to:
Confidential communications between an attorney and client, or representative of either, made during professional legal counsel, unless waived by the client or an exception is applicable.
In order for a communication to be confidential, the client must ___________ for it to be so.
Intend. His reasonable expectations govern his intent.
What are the privilege rules if two or more clients w/ a common interest consult the same attorney?
Then their communications are privileged as to third parties. But if the joint clients later have a dispute w/ each other concerning the common interest, the privilege does not apply as between them.
What is not included in the definition of "communication"?
The client's underlying knowledge, pre-existing documents, or physical evidence.
Delbert is sued for his alleged negligence in an auto accident. He tells his attorney what happened and gives him the cell phone w/ which he was making a call at the time of the accident. Before trial, Delbert is deposed by plaintiff's counsel. Must Delbert respond if asked, "What did you tell your attorney about the accident?"
No - This is a privileged communication.
Must Delbert respond if asked, "Describe what you were doing at the time of the accident."
Yes - This is the party's underlying knowledge, which is not privileged.
If served w/ a subpoena, must Delbert's attorney produce Delbert's cell phone?
Yes - The cell phone is physical evidence, not a confidential communication.
What is the definition of an "attorney" for the purposes of the attorney-client privilege?
A member of the bar or person that the client reasonably believes is a member of the bar.
OR
Any agent reasonably necessary to facilitate the provision of legal services.
What is the definition of "client" for purposes of the privilege?
Includes a person seeking to become a client, or any agent reasonably necessary to facilitate the provision of legal services.
What is a "professional legal consultation" for the purposes of the privileges?
Where the primary purpose of communication is to obtain or render legal services, not business or social advice.
T/F. Both the attorney and the client may waive the attorney-client privilege.
False - The privilege belongs solely to the client, and only he may waive it.
A voluntary waiver of the attorney-client privilege as to some communications will also waive the privilege as to other communications if:
(1) The partial disclosure is INTENTIONAL; (2) the disclosed and undisclosed statements concern the SAME SUBJECT MATTER; and (3) FAIRNESS requires that the disclosed and undisclosed communications be considered together.
An inadvertent disclosure of a privileged communication will not waive the privilege so long as the privilege-holder:
(1) Took reasonable steps to prevent the disclosure; and (2) takes reasonable steps to correct the error.
Name three exceptions to the attorney-client privilege.
(1) Future crime/fraud, e.g., the client tells the attorney to help him disguise the bribes he made so that they look like legitimate business expenses; (2) client puts legal advice in issue, e.g., in tax fraud prosecution, D defends on the ground of attorney reliance; and (3) client sues attorney, e.g., malpractice or recovery of unpaid fee.
The doctor-patient privilege applies to:
(a) Confidential communication or information acquired by the physician from a patient (b) for the purposes of DIAGNOSIS OR TREATMENT of a medical condition.
T/F. The doctor-patient privilege applies to psychotherapists and their patients.
True
In federal court actions based solely on federal law, the doctor-patient privilege exists only for ___________.
Psychotherapy
Physician examine's Patient's lungs in hospital room while visitor is present. (1) Patient tells Doctor, "Do you suppose my wheezing is due to the four packs of cigarettes I smoke every day?" (2) After visitor leaves, Patient says to Doctor, "Know any good lawyers? I haven't paid my income taxes in three years." In a state court action in which the condition of Patient's lungs is an issue, could Doctor be compelled to disclose statement (1)?
Yes - A visitor was present and the statement was thus not confidential. Can be no reasonable expectation of confidentiality.
In prosecution of income tax evasion, could Doctor be compelled to disclose statement (2)?
Yes - The statement is technically confidential, but does not relate to diagnosis or treatment of a medical condition.
What is the general exception to the doctor-patient privilege?
If the patient expressly or impliedly puts physical or mental condition in issue. E.g., The patient is the plaintiff suing for damages for personal injury, or the defendant asserts the insanity defense.
What is the "spousal immunity" privilege?
A spouse cannot be compelled to testify about ANYTHING against a defendant spouse, when the marriage is in EXISTENCE AT THE TIME OF TRIAL.
T/F. The spousal immunity privilege applies only to the witness spouse.
True - The defendant cannot invoke this privilege.
What is the confidentiality rule for communications between husband and wife?
In any type of case, a spouse is not required, and is not allowed in the absence of consent of the other spouse, to disclose a confidential communication made by one to the other DURING THE MARRIAGE.
What three exceptions exist as to husband-wife confidentiality?
(1) Communications or acts in furtherance of jointly-perpetrated future crime or fraud; (2) communications or acts destructive to the family unit; or (3) in litigation between spouses themselves.
Niles is prosecuted for the murder of his brother Frazier. Niles and Daphne are a married couple. Niles comes home on the night of Frazier's demise wearing a blood-stained Armani topcoat, which Daphne observed. At trial, the prosecutor calls Daphne to the stand to testify to her observations about Niles' topcoat, but she refuses to testify. The prosecutor seeks to compel her testimony. What ruling?
Cannot be compelled to testify - Although the confidential communications privilege does not exist, spousal immunity does.
Assume Daphne is willing to testify against Niles. In addition to the topcoat observation, she seeks to testify to the following: "Niles told me when he got home that he stabbed Frazier." Niles objects. What ruling?
(1) The topcoat observation comes in, b/c its the witness spouse's choice; but (2) Niles' statement does not, b/c he gets the confidentiality privilege.
Assume that Daphne divorces Niles before his case goes to trial. The prosecutor calls her to the stand. Can Daphne be compelled to testify to her observations about Niles' topcoat?
Yes - Spousal immunity only protects marriage existing at the time of trial.
Can Niles prevent Daphne from disclosing his admissions to her about stabbing Frazier?
Yes - The statement was made during the marriage.