FINAL STUDY - DE Evidence

Compassionate Communications by Healthcare Provider

In a Delaware civil action against a healthcare provider, a statement or gesture of apology, sympathy, compassion, condolence, or benevolence by the health care provider or their employee is inadmissible if made to an injured or deceased person or their family members or friends following an unanticipated outcome of medical care. However, statements of liability or fault are admissible.

Specific Acts of Misconduct—Admissible If Independently Relevant

Delaware courts impose more stringent restrictions on this type of evidence. For the act to be admissible, it must be: (1) material to an issue in the case; (2) not too remote in time from the charged crime; and (3) proven by “plain, clear, and conclusive” evidence (a stricter standard than under the Federal Rules). Additionally, as under the Federal Rules, the evidence is subject to the Rule 403 balancing test. A party that intends to introduce evidence of a defendant’s specific acts of misconduct should first seek a ruling from the trial judge as to the admissibility of the evidence (advance notice to the defense is not sufficient). Whenever such evidence is admitted, the jury must be given a limiting instruction.

Opinion Testimony by Expert Witnesses—Facts Made Known to Expert Outside Court

The Delaware rule includes an extra provision that an adverse party may object to an expert’s testimony on the ground that the expert does not have a sufficient basis for the opinion. The adverse party may, before the expert gives the opinion, be allowed to conduct a voir dire examination directed to the underlying facts or data on which the opinion is based.

Opinion Testimony by Expert Witnesses—Opinion May Embrace Ultimate Issue

The Delaware rule does not prohibit testimony as to whether a criminal defendant had the mental state at issue in the crime.

Impeachment by Prior Inconsistent Statements—Laying a Foundation for Extrinsic Evidence

In Delaware, extrinsic evidence of a prior inconsistent statement is admissible if the witness is given an opportunity to explain or deny the inconsistent statement at some point during the trial (which may be before or after introduction of the extrinsic evidence).

Additionally, in Delaware, extrinsic evidence of a witness’s prior inconsistent statement is admissible whenever the witness does not clearly admit making the prior inconsistent statement. The commentary to the rule describes this as when a witness “hedges and neither admits nor denies” making the statement.

Prior Inconsistent Statements—Evidentiary Effect of Prior Inconsistent Statements

In Delaware, where the declarant is testifying at trial and subject to cross-examination about the prior inconsistent statement, the statement is admissible as substantive evidence even if it was not made under oath.

Physician/Psychotherapist/ Mental Health Provider Privilege

Delaware recognizes a combined privilege for communications with physicians, psychotherapists, and mental health providers (collectively, “health care providers”) made for the purpose of diagnosing or treating a physical or mental condition. The privilege covers communications among the patient, the health care provider, and persons participating in the diagnosis or treatment under the provider’s direction, including the patient’s family members. The privilege applies even if a supposed physician or psychotherapist is not authorized to practice medicine, as long as the patient reasonably believes that the person is so authorized.

The privilege does not apply in the following circumstances:

• In any proceeding in which the patient puts their physical condition at issue (for example, personal injury suit) or, after the patient’s death, in any proceeding in which any party puts the patient’s condition at issue;

• Where the patient has expressed an intent to engage in conduct likely to result in imminent death or serious physical injury to any person;

• Where the provider’s assistance was sought to aid wrongdoing (for example, commission of crime or tort);

• In a proceeding to hospitalize the patient for mental illness, if the health care provider has determined that the patient needs to be hospitalized;

• Where the communication was made during a court-ordered examination or investigation of the patient’s condition; or

• In cases involving child abuse or the appointment of a guardian.

Privileges Related to Marriage—Immunity May Be Asserted Only During Marriage

Delaware does not recognize the doctrine of spousal immunity, but does recognize the confidential marital communications privilege.

Hearsay Exception for Public Records and Reports

The Delaware exception admits similar general categories of records: (1) the regularly conducted and recorded activities of the agency; (2) matters observed pursuant to a duty imposed by law; and (3) factual findings resulting from an investigation that was authorized by law. However, the Delaware exception is more restrictive and specifically provides that the following records do not qualify for the exception (some of which would also not qualify under the federal exception):

• Investigative reports by police and other law enforcement personnel;

• Investigative reports prepared and offered by a government or public agency;

• Factual findings offered by the government in criminal cases;

• Factual findings resulting from a special investigation of a particular complaint, case, or incident; or

• Any matter as to which the sources of information or other circumstances indicate lack of trustworthiness.

Video Testimony in Certain Prosecutions

In Delaware criminal prosecutions for domestic violence, sexual assault, stalking, or child abuse, a victim of the crime (regardless of age) or any non-victim witness who is younger than age 11 may be permitted to testify by means of secured video connection. The court must determine that the victim would suffer serious emotional distress by testifying in the courtroom such that the victim would not be able to reasonably communicate.

Videotaped Deposition of Child Witness

In any Delaware criminal prosecution, or any hearing on delinquency, upon motion of the Deputy Attorney General prior to trial and with notice to the defense, the court may order all questioning of any witness under the age of 12 years old to be videotaped in a location designated by the court. Upon the prosecution’s motion, the court may exclude the defendant from the deposition as long as the defendant is able to observe the witness during the deposition (for example, by video connection) and communicate with the defense attorney. Subsequently, the witness cannot be compelled to testify at the trial or any hearing for which the deposition testimony was taken, and the videotaped deposition may be used as substantive evidence at the trial or hearing.

Accommodation Payments in Personal Injury Cases

In Delaware, evidence of advance or partial payments of damages by a person or insurer as an accommodation to an injured person or the person’s estate or dependents is not admissible to prove the payor’s liability for the injury.

Impeachment and Felony Not Involving Dishonesty

In Delaware, it does not matter who the witness is—evidence of a conviction for a felony that does not involve dishonesty or false statement is admissible to impeach the witness only if the probative value outweighs the prejudicial effect (favors exclusion; the same test used in federal court for a criminal defendant-witness).

Lay Opinion Testimony

Lay witness opinion is admissible when it is:

•Rationally based on the witness’s perception;

•Helpful to a clear understanding of the witness’s testimony or helpful to the determination of a fact in issue; and

•Not based on scientific, technical, or other specialized knowledge

Expert Testimony

For expert testimony to be admissible, five qualifications must be met, which you can remember with the acronym “QUIRC.”

•Qualification as Expert

The witness must be qualified as an expert. This requirement is satisfied if they possess special knowledge, skill, experience, training, or education.

•Assists Understanding of Jury

The proponent must demonstrate to the court that it is more likely than not that the subject matter is one where scientific, technical, or other specialized knowledge would assist understanding by the trier of fact. The testimony has to concern something that goes beyond the average juror’s regular understanding.

•Is Based on Sufficient Facts and Data

The court must be confident that the expert is basing their opinion on sufficient facts and data.

•Reliable Principles and Methods

The opinion must be the product of reliable principles and methods.

•Opinion Reflects Facts of this Case

The opinion must reflect a reliable application of the principles and methods to the facts of the case at hand.

Proper Factual Basis - Experts

The expert’s opinion must be supported by a proper factual basis. The opinion can be based on the following possible sources of information:

•Facts based on the expert’s own personal observation (for example, the expert personally examined the injured plaintiff).

•Facts made known to the expert at trial (for example, the expert reviews testimony from the trial, or counsel relates the facts to the expert on direct examination in the form of a hypothetical question).

•Facts not known personally but supplied to the expert outside the courtroom and of a type reasonably relied upon by other experts in the particular field. Such facts need not be admissible as evidence. But if the facts would be inadmissible, the proponent of the expert testimony must not disclose the facts to the jury unless the court determines that their probative value in helping the jury evaluate the expert’s opinion substantially outweighs their prejudicial effect (note that this is a reverse-Rule 403 balancing test that favors nondisclosure).

Unless the court orders otherwise, the expert need not disclose the basis of the opinion on direct examination. However, the expert may be required to disclose such information on cross-examination.

The Delaware rule includes an extra provision that an adverse party may object to an expert’s testimony on the ground that the expert does not have a sufficient basis for the opinion. The adverse party may, before the expert gives the opinion, be allowed to conduct a voir dire examination directed to the underlying facts or data on which the opinion is based.

Exclusion of Witnesses

In Delaware, the judge may exclude certain witnesses from the courtroom at the request of a party (or by her own motion), but is not required to do so. The following witnesses may not be excluded: a party who is a natural person; an officer or employee of a party that is not a natural person, after being designated as the representative; and a person whose presence is essential to the presentation of the party’s claim or defense. Additionally, in criminal prosecutions, the victim and the victim’s immediate family members have the right to be present at all stages of the proceedings unless the defendant shows good cause to exclude them.

Best Evidence Rule

The Best Evidence Rule requires the original of a writing, recording, or photograph (defined broadly to include videos, X-rays, and any tangible collection of data; we’ll use “writing” as shorthand going forward) to prove its contents. Secondary evidence of the writing, such as oral testimony, is admissible only if the proponent provides a satisfactory excuse for the original’s absence.

The rule applies:

•Where the writing is legally operative (it is the only means of proving certain facts in the case); or

•Where the knowledge of a witness concerning a fact results from having read it in the writing

b.When Rule Does Not Apply—Witness Has Personal Knowledge of Facts

The rule does not apply where the witness has personal knowledge of the fact to be proved, even if the fact happens to also be recorded in a writing. Oral testimony of the fact may be given without producing the original writing that recorded the event.

The Best Evidence Rule is a rule of preference. Duplicates are admissible to the same extent as originals, unless: (1) a genuine question is raised about the authenticity of the original or (2) the circumstances make it unfair to admit the duplicate.

If the proponent cannot produce the original writing (or an admissible duplicate) in court, they may offer secondary evidence of its contents (such as handwritten copies, notes, or oral testimony) if a satisfactory explanation is given for the non-production of the original.

Summaries of Voluminous Records

When it would be inconvenient to examine a voluminous collection of records in court, the proponent may present their contents in the form of a chart or summary. However, the proponent must make the originals or duplicates available for inspection or copying, and the court may order the proponent to produce the records in court.

Opposing Party Statements - Delaware

The Delaware rule specifies that a co-conspirator’s statement is not admissible as an opposing party’s statement until the conspiracy has been established by a preponderance of the evidence to the satisfaction of the court.

Even though the corresponding Federal Rule does not include this language, federal courts generally also require proof by a preponderance of the evidence, so there is no true distinction.

Delaware Prior Inconsistent Statement

In Delaware, a testifying witness’s prior inconsistent statement is not hearsay even if it was not made under oath.

Prior Voluntary Statement by Testifying Witness in Criminal Case

By statute, in a Delaware criminal case, any voluntary prior statement of a testifying witness who is subject to cross-examination is admissible as substantive evidence with independent testimonial value. Keep the following in mind:

•If the witness’s out-of-court statement contains the statement of a nontestifying declarant, that inner statement must fall within an independent hearsay exception or exclusion to be admissible.

•The statute does not apply if cross-examining the witness would subject the witness to self-incrimination.

•Although such statements will not be excluded due to the hearsay rule, they can still be excluded for other reasons (for example, Rule 403 and confrontation issues).

To offer a statement under this statute, a proper foundation must be laid. The declarant must be asked about the voluntariness of their statement during direct examination, and the judge must make a ruling on whether the declarant made the statement voluntarily before the statement may be submitted to the jury for consideration. Statements made due to coercion or threats may be considered to be involuntary.

Dying Declaration

The Delaware exception for dying declarations applies in all types of cases.

Recorded recollection

In Delaware, the court may permit a recorded recollection to be received by the jury as an exhibit.

Refreshing Recollection

Whenever a witness has used a writing to refresh their memory while on the stand, an adverse party is entitled to:

•Have the writing produced at trial;

•Cross-examine the witness about the writing; and

•Introduce portions of the writing relating to the witness’s testimony into evidence

If the witness refreshed their memory before taking the stand, an adverse party is entitled to the above options only if the court decides that justice requires it.

•Failure to Produce or Deliver Writing

In a criminal case, if the prosecution fails to produce or deliver a writing as ordered, the judge must strike the witness’s testimony—and, if justice requires, declare a mistrial. (When the defense or a party in a civil case fails to comply, the judge has more discretion and can issue “any appropriate order.”)

Statements by Child Victim or Witness

In a criminal prosecution for any felony offense relating to physical or sexual abuse, injury, or death, Delaware recognizes a statutory hearsay exception for statements made by a child who is under 11 years old at the time of the proceeding. The statement must concern an act that is a material element of the offense, and the child must be either:

•Present and subject to cross-examination about the statement; or

•Found by the court to be unavailable to testify. If the child is unavailable, the statement is admissible only if the court determines that it possesses particularized guarantees of trustworthiness.

The proponent must provide the adverse party with notice of their intent to offer the statement sufficiently in advance of the proceeding to give the adverse party an opportunity to respond.

Grounds for Unavailability

In addition to the usual grounds for unavailability, a child may be found to be unavailable for purposes of this exception if the court determines that the child would suffer severe emotional trauma by testifying, provided that this is supported by expert testimony. A child can also be considered incompetent and thus unavailable to testify due to their inability to communicate about the offense because of fear or some other reason.

Statements by Impaired Adult Victim

In a criminal prosecution for any violent felony, or for abuse, neglect, exploitation, or mistreatment, Delaware recognizes a statutory hearsay exception for statements by an adult victim who is impaired or a patient or resident of a state facility. The requirements for admissibility are very similar to the exception for statements by a child victim or witness (see above). The main difference is that if the adult victim is unavailable to testify, the statement is admissible only if it is corroborated by other evidence.

ACP

The Delaware attorney-client privilege applies to confidential communications between the following persons (and their representatives): (1) the client and the lawyer, (2) the lawyer and the lawyer’s representative, (3) the client and the client’s representative, (4) lawyers representing the same client, and (5) the client or lawyer to another lawyer representing some other party in a matter of common interest.

The privilege extends to foreign parent entities of Delaware subsidiaries and covers in-house counsel of foreign entities and controlled affiliates.

Religious Privilege

Delaware’s “religious privilege” is similar to the clergy-penitent privilege recognized in federal courts. It allows a person to refuse to disclose or prevent another from disclosing a confidential communication by the person to a clergy member in their professional character as a spiritual adviser. A “clergy member” is defined as a minister, priest, rabbi, accredited Christian Science practitioner, or other similar functionary of a religious organization, or an individual reasonably believed to be a clergy member by the communicant.

The privilege may be claimed by the communicant or their guardian or conservator, or by the communicant’s personal representative if the communicant is deceased. The clergy member also has the authority to claim the privilege on the communicant’s behalf in the absence of evidence to the contrary.

Professional Journalist Privilege

In Delaware, a reporter may decline to testify or give evidence concerning the source or content of information that they obtained within the scope of their professional activities (meaning, information obtained for the purpose of disseminating it to the public). A reporter may act within the scope of their professional activities at a social gathering. However, a reporter is not acting in the scope of their professional activities if they: (1) intentionally conceal their identity; or (2) witness or participate in acts of physical violence or property damage.

Scope of Privilege in Adjudicative Proceedings

In adjudicative proceedings (meaning, any judicial or quasi-judicial proceeding other than a grand jury proceeding), the privilege applies only if the reporter states under oath that disclosing the source or content of the information would violate an understanding with the source, or would substantially hinder the reporter in maintaining or developing source relationships. The source of information is protected under the privilege. The content of the information is also protected if disclosure would likely reveal the source of the information. If disclosure would not reveal the source, the reporter may be required to testify if the court determines that the public interest in having the testimony outweighs the public interest in confidentiality.

Scope of Privilege in Nonadjudicative Proceedings

In nonadjudicative proceedings (including grand jury proceedings), both the source and the content of the information are protected.

Additional Delaware Privileges

Political vote privilege: A person’s record of voting is privileged unless the person voted illegally or disclosure is required by Delaware state election laws.

Trade secret privilege: A person (or the person’s agent) may refuse to disclose and prevent others from disclosing a trade secret. However, the privilege must not be used to perpetuate a fraud or injustice. The court may direct disclosure and will take steps to protect the trade secret as the interests of the parties and justice require.

State secret privilege: Federal state secret privilege laws are recognized.

Confidential Marital Communications

Confidential marital communications privilege (protects communications only; not observations, etc.)

• Applies in both civil and criminal cases

• Privilege belongs to both spouses

• Communication must have been made during a valid marriage, but divorce will not terminate the privilege retroactively

Exceptions—neither privilege applies in:

• Legal actions between the spouses

• Cases involving crimes against the testifying spouse or either spouse’s children

• In furtherance of joint crime or fraud

Judicial Notice

In Delaware the court must, upon request, instruct the jury to accept judicially noticed facts as conclusive in both criminal and civil cases.

Delaware Presumptions in Criminal Case

Delaware recognizes the following rebuttable presumptions in criminal cases: (1) a person is presumed to intend the natural and probable consequences of their acts; and (2) a person found to possess the goods acquired as the result of a recent crime is presumed to have committed the crime. The court may inform the jury of the presumption; if it does so, the defense is entitled to a jury instruction that the presumption does not relieve the state of its burden to prove guilt beyond a reasonable doubt.

Adverse Inference

The Delaware Supreme Court has confirmed that when a litigant intentionally suppresses or destroys pertinent evidence, an inference arises that such evidence would be unfavorable to his case. However, such an inference is not warranted if there is no evidence of intentional conduct.

Authentication

As a general rule, any item received into evidence, whether it is a writing or an item of real evidence, must be authenticated by proof that shows that it is what the proponent claims it is. The proof must be sufficient to support a jury finding of genuineness (that is, a reasonable juror could conclude that the evidence is genuine).

Character Evidence in Criminal Case

Defendant may introduce evidence of own good character to show innocence

When prosecution may introduce defendant’s bad character

• As rebuttal when defendant “opens the door”

• Specific acts that are independently relevant (MIMIC)

• Specific similar acts by defendant in sexual assault or child molestation case (admissible for any relevant purpose, including propensity)

When character of the victim admissible

• Defendant may introduce if relevant to their innocence (generally in self-defense cases)

• Prosecution may rebut with (i) defendant’s bad character for same trait or (ii) victim’s good character for same trait

Competency of Witness

Personal knowledge of the subject matter

Sworn oath or affirmation that witness will testify truthfully

All witnesses presumed competent under the Federal Rules until the contrary is demonstrated (no age requirement)

Testimonial Statements

“Testimonial” evidence includes five categories: prior testimony from a grand jury, preliminary hearing, or former trial, statements from a police interrogation, and statements from a forensic report.

To Aid in Ongoing Emergency—Not Testimonial

To Provide Information for Later Prosecution—Testimonial

Witness’s Prior Statement

When examining a witness about the witness’s prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party’s attorney.