Criminal Ev. Second Exam

4/14

The Opinion Rule and Expert Testimony

• How a witness can enter certain evidence into trial

• Witness: someone who observes an event

• Trial witness: a witness who has been swworn to tell the truth, and takes the stand and testifies at a trial, deposition, etc.

• Lay Witness:

  • Doesn’t matter professional background, can be anybody

  • Limited to provide factual report based on their five senses

  • A person who testifies about an event they observed with one or more of their five senses. The person can have a variety of professional backgrounds. Their testimony is limited to providing a factual report on what they saw, heard, smelled, tasted, or touched

• Expert witness

  • Scientific, mechanical issue

  • A witness whose expertise will help explain things to a jury

FRE 702: expert witness

• A witness is qualified as an expert by knowledge, skill, experience, training and/or education (do not need a degree)

• Expert’s knowledge, skill, experience, training or education will help the finder of fact (jury or judge) understand the evidence or determine a fact in issue

• The party calling the expert witness has to lay a foundation for the witness to testify (explain why they have the training or experience to offer an opinion)

• A witness can testify as both a lay witness and an expert witness in the same case

• Lawyer asks questions to these witnesses to Lay a foundation for the admissibility of testimony. It is to tie the reasons why they’re testifying and offer as a witness for the trial.

Unavailable witnesses:

• May be unavailable due to illness, death, flight, or desire to avoid trial, or due to the conduct of another

• A witness’ prior statements under oath at a prior court hearing on the same matter may be introduced at trial if the witness is unavailable

• Mechanism’s to preserve testimony of a material witness who may be unavailable at trial (1) videotaping sworn testimony; (2) receiving sworn testimony on the record (court hearing, trial or deposition) which has been subject to cross-examination

• Material witness warrants can be issued by the court to secure a witness’ appearance for trial - this requires arrest and detention

  • Lock somebody up to show up (why?)

    • If people don’t show up, they get held in jail

• Reasons why people don’t testimony: threats, death, flee the country

• Defendant shouldn’t benefit from the fact they caused a witness not to show. Not hard to prove that they caused it. 

The Opinion Rule

• Opinion: an inference from the perceived facts such as a conclusion that a Defendant killed a victim in a reckless fashion

• Common Law Opinion Rule: The testimony of a lay witness was limited to facts (those discovered through the five senses). A witness could not offer an opinion - it was the role of the jury to evaluate the evidence and come to conclusions, and Courts did not want juries to give witness opinions too much credit.

• Lay witnesses: the Federal Rules of Evidence allow a witness to offer both fact and opinion testimony. 

  • As to the reckless behavior of the defendant

Common Law: l

limited to what they can discern through five senses, but got expanded so they can offer an opinion. Human nature to draw a conclusion from facts. Doesn’t mean its accurate, but courts will allow it. Opinion is still subject to cross examination from other side

FRE 701: Three requirements for a lay witness to offer an opinion

1. The opinion must be logically based on the witness’s perception (5 senses)

2. The lay opinion must help the factfinder understand the witness’s testimony

3. The testimony should be straightforward and non-technical and can’t rely on scientific, technical or other specialized knowledge

4. Areas where courts customarily admit law opinion testimony: smell, identity, age, conduct, dimension, physical condition, weight, distance, color, emotional condition, value of objects/land; suspicious conduct, time and direction

5. Judges will allow a law witness to rely upon ‘specialized knowledge’ but can’t offer opinions based on ‘scientific, specialist, or other specialist knowledge’

6. Rules about lay and expert witnesses are applied flexibly. 

7. Testimony liberally, whole purpose of trial is to get to the event. 

Expert Testimony:

• Witnesses qualified to knowledge, skill, experience, training or education. Examples: ballistics (guns, projectiles); forensic chemist (DNA, illicit drug identification, DUI); physician/medical examiner (cause/manner of death or injury)

• Courts try to balance giving the parties the ability ot learn about a case against confusing the issues and/or wasting time

• Experts (can and often do) cancel each other out

  • Experts on each side. Each case is entitled to know any information in advance so that the other side has an equal opportunity to do analysis prior to trial

• Methods to determine the reliability of an expert’s ‘scientific’ expertise: the Frye test and the Daubert test

• You only need one witness (?)

The Frye Test (1923) & The Daubert Test

• Frye Test:

  • Expert testimony had to have gained ‘general acceptance’ in the particular field (of science, medicine, etc).

  • Question: Did the scientific community ‘generally accept’ the methodology as a reliable by allowing an ‘expert’ to testify about it

• Daubert Test

  • The trial judge is the gatekeeper for scientific evidence - the evidence has to be reliable and relevant. 

  • Lawyers will try to fit scientific evidence that doesn’t work

  • Has the theory or technique been tested?

  • Has it been peer reviewed and/or published?

  • What is the technique’s error rate?

  • Has the technique been generally accepted in the relevant scientific community?

FRE 702

• Poloygraphs not admissible in court

• Evidence expert might consider is documenting photographs. May not be allowed to be put in front of jury because of the gory nature of the photographs

  • Sometimes unavoidable because that’s all you got. You can tell jury but you can’t tell/show all of them

• We don’t want to convict somebody based on emotion, just facts of case.

• The expert’s testimony is based on their knowledge, skill, experience, training or education and must be helpful to the jury

• The expert’s testimony is based on ‘sufficient facts or data to undertake meaningful analysis’

• The expert must employ reliable principles and methods

• The analysis must follow the accepted way or carrying out the analysis or test

• Experts may base their opinion on facts or data from the following sources: perception, information, trial, experts in the relevant field

• The admissibility of expert testimony is conditioned on FRE Rule 403 - highly prejudicial evidence will not be admitted. Polygraph, blood victim photos

FRE 703

• An expert may base their opinion or facts on data that the expert has been made aware of or personally observed

• Qualifying an expert witness: a judge must be satisfied that Rule 703 and 403 are not an impediment to admission of the expert testimony before an expert testifies at trial

• Burden of proof is on the proponent of the expert (the lawyer who seeks to admit expert testimony from their witness)

• An opposing part can challenge the expert’s qualifications, helpfulness of the specific testimony, reliability of data, reliability of expert analysis, and the potentially prejudicial impact of the testimony 

Testimony on the ultimate issue

• At common law, an expert could not testify as to the ultimate issue

• Under FRE 704, opinion testimony is not ‘automatically excluded’ because it ‘embraces an ultimate issue’ but in a criminal case, an expert witness must not state an opinion about whether the defendant did not have a mental state or condition that constitutes an element of the crimes charged or of a defense

Scope of Expert Testimony in a Criminal Case

• Fingerprint identification

• Medical examiner - cause of death

• Physician - cause of injury

• DNA identification evidence

• Had a writing analysis

• Ballistics evidence

• footprint/shoeprint analysis

• Gunpowder analysis

• Common drug dealing practice

• Syndromes: rape trauma syndrome, battered spouse syndrome, child sex abuse accommodation syndrome, PTSD

Court Appointed Experts

• The trial court has the right to call expert witnesses

• The trial court cannot disclose the appointment of an expert witness to the jury

Real Evidence:

• Any tangible item that may be perceived with the five senses. Includes documents, exhibits, photographs, videos, clothing, objects, guns, drugs, etc..

• Mechanics of admission of evidence (evidence must be marked and lawyer must lay a foundation for the admissibility of the evidence)

• Four steps:

  • Show the item to the opposition (opposing counsel, the defendant if pro se) - can be before the witness takes the stand

  • Ask the clerk to mark the item for ‘identification’

  • Establish a foundation for admissibility of the evidence (what is it, where did you find/locate/seize it)

    • Authentication (FRE 901): demonstrating the object is what it claims to be 

  • Lawyer moves to admit the item into evidence to be able to make it from identification to exhibit, then admitted into evidence. Once evidence is admitted, you can’t take it back.

• Evidence that is not authentic/authenticated is inadmissible at trial

• Evidence is given a court exhibit #

• Jury receives the evidence - can look at it, touch it, etc.

• After closing arguments all evidence properly admitted gets sent back to the jury -goes into the jury room

• If you’re going to admit something as evidence, go to clerk to mark for identification

Crime Scene Evidence

• Evidence must be shown to be authentic and/or genuine

  • As long as cops see it at crime scene

• Must be in ‘substantially the same condition’ as when it was seized/recovered

• A witness identifies the object (chain of custody is established)

• To establish a chain of custody:

  • Needed if evidence cannot be easily identified

  • May be easily modified, tampered with, or misplaced

  • Examples: blood samples, drugs, clothing items

• Once chain of custody is established, the burden shifts to the opposing party to demonstrate an irregularity, or that the evidence was tainted or tampered with

Scientific Evidence

• DNA

• Blood testing (blood type/DNA/bac)

• Hair

• Fibers

• footprint/shoeprint

• Ballistics analysis

• Fingerprints

• RADAR/speed detection

• The defendant can also be tested (gunshot residue, DNA, their DNA to match to evidence recovered) 

Laying the foundation for scientific evidence

• Is the test scientifically valid?

• Was the equipment accurate?

• Was the test performed properly by a trained operator/analyst

• Judges will accept validity of establish scientific tests - fingerprints, rader gun (accurately calibrated and operating properly) 

Voir Dire of expert witness

• Does the witness have the training, knowledge and/or skill to qualify as an expert?

  • Education, experience, training

• The expert witness must then establish the test will be helpful to the jury and satisfy Frye/Daubert

• The party calling the expert to testify has to offer the scientist/chemist who conducted the test to testify. That testimony would have the expert providing their training and experience and adherence to procedures in conducting the test.

• The defendant is afforded a ‘fair opportunity’ to present a defense, which includes being provided the ‘basic tools’ to support the defense (ability to call an opposing expert, psychotherapist, etc). 

Judicially accepted scientific tests

• Fingerprint evidence was first accepted in 1901

• A fingerprint is an impression left by the finger ridges found on a finger. One finger may have 150+ ridge characteristics. To claim a match, the fingerprint must have 8-16 matching ridge patterns.

• Fingerprints can identify a suspect and/or link a suspect to a crime scene

• Cannot say when fingerprint was left there

• Fingerprints are commonly taken as part of the booking procedure. Defendant cannot refuse to give their prints. The police do not need RAS or PC to obtain the fingerprints.

• Cops locate a fingerprint of value that is relevant to the investigation. An expert compares the print to a known sample.

Four Types of Fingerprints

• Exemplar - post booking/identification prints

• Latent - impressions left on a surface not visible to the naked eye

• Patent - impressions that are visible to the naked eye and are left on the object/scene (wet clay)

• Plastic - an impression left in material that reflects the shape of the friction ridge.

Blood Testing

• DUI: current level of impairment for BAC – .08 now, was .10 (1960s-1970s)

  • DUI also includes drug consumption

  • Implied consent: by obtaining a drivers license, a driver impliedly consents to DUI testing (urine, blood, breathalyzer)

  • Blood draws typically require the police obtain a search warrant

• Blood Typing:

  • Forensic serology: is it blood? Is it human blood? What type of human blood? (A+, A-, B+, B-, O+, O-)

DNA:

• A molecule that stores a genetic code obtained from bones, semen, teeth, hair, saliva, blood

• Used for: detection (connect someone to a crime); investigation (includes or excludes a suspect); guilt/innocence 

• Challenges to DNA issues: Contamination, lab procedures, significant/relevance

• Defendants are not entitled to DNA testing in post-conviction proceedings

• DNA samples are taken from felons post-conviction, some states take DNA samples post-arrest (Maryland v. King)

Controlled Substances:

• Tests:

  • Ultraviolet spectrophotometry

  • Microcrystalline testing

  • Gas chromatograph/mass spectrometry 

Ballistics:

• Was a firearm optional?

• Was a specific bullet/projectile fired from a specific rifled firearm?

• Was a specific casing fired from a specific firearm? (breech face, chamber marks)

• What was the distance from the gun to the target?

• Is it the type of firearm that fired the bullet?

• Gun and its parts can be tested for fingerprints and DNA

Other accepted scientific tests:

• Toxicology

• Breathalyzer

• Urine analysis

• Hair analysis

• Horizontal Gaze Nystagmus

• RADAR

• Spectrograph (voice identification)

Tests generally not accepted by courts at trial

• Polygraph: based on the assumption that lying leads to internal conflict that causes fear and anxiety which, in turn, causes a measurable physical reaction

• Peopel who lie are expected to exhibit psychological responses in blood pressure, heart rate and respiration - must be a ‘measurable physical reaction’

• Experiments: efforts to try and mimic or replicate what occurred

  • Issue: is the experiment substantially similar to the circumstances surrounding the original event ot test the credibility of someone’s testimony 

Documentary evidence:

any information stored on physical or digital media—such as paper documents, photos, emails, or recordings—introduced at a trial to prove a fact. It encompasses any material that records information through letters, figures, or marks, providing tangible proof to support allegations in legal proceedings

• Photographic evidence

• Medical images

  • Some requirements: machine that made image, was working properly, person was authorized to use the medical machine, and that the image reflects what it depicts

• Voice identification

  • Identifying person is a phone call

• Paper documents

  • Map, contract, etc. 

• Electronic and visual depositories of information

  • Not clear of AI on documentary evidence because so much can be fabricated

• Stuff that establishes a fact about a person or a thing

• Purpose: orient the jury as what the topic is trying to teach them or give them an image of

FRE1001(1) - writings and recordings

• Letters, words or numbers, or their equivalent, set down by handwriting/typewriting, printing, photostatting, photographing, magnetic impulse, mechanical or electronic recording, or other forms of data compilation

• Photographs: photos, x-rays, films, videotapes, motion pictures

• Documents: letters, home videos, contracts, wqills, diaries, or public documents (birth, marriage, death, police or court records

• What it is and why its relevant, then admitted. 

• Need someone who can look at the photograph and depict its accurate, doesn’t need an expert on this.

• Cops take pics of scene same day and the following day to get accurate depiction 

Authentication

• The document must be relevant and the probative value must outweigh any resulting prejudice

• The party introducing the document must authenticate it

  • The party must show the document is genuine

    • That does not mean the document is accurate or truthful

    • The jurey can make an independent assessment of the probative value of an item

• Party who presents it must authenticate it. Doesn’t mean it has to be accurate, just that it is what it is

• Standard for admissibility: there is sufficient evidence for a judge or jury to conclude the document is genuine - this is a low standard

  • Ex: handing in a real document and a fake one to show difference

  • “Is this what the person says it is?”

• Documents must be authenticated to insure they meet the minimal standard of reliability and trustworthiness and are not forgeries

• This guards against a claim based on a document which, in fact, does not exist

• Authentication establishes the existence of a document - not that the contents are what they are alleged to be, or that they were created by the purported author

• At common law, authentication was limited to documents

• Parties can agree to skip authentication and put documents into evidence 

  • Reason why its good: speeds up trial. As long as parties agree, judge can’t deny it

FRE901

• Authenticating or identifying evidence

• In general, to satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is

• Examples of evidence that satisfies the requirement:

  • Testimony of a witness with knowledge. Testimony that an item is what it is claimed to be

  • Nonexpert opinion about handwriting. A nonexpert’s opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation

    • Can still be challenged because

  • Comparison by an expert witness or the trier of fact. A comparison with an authenticated specimen by an expert witness or the trier of fact

  • Distinctive characteristics and the like: the appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together will all the circumstances 

  • Once admitted, can be checked on if it’s reliable 

  • Opinion about a voice: an opinion identifying a person’s voice - whether heard firsthand or through mechanical or electronic transmission or recording - based on hearing the voice at any time under circumstances that connect it with the alleged speaker

  • Evidence about a telephone conversation: evidence that a call was made to the number assigned art the time to:

    • A particular person, if circumstances, including self-identifcation, and show that the person answering was the one called; or

    •  A particular business, if the call was made to a business and the call related to business reasonable transacted over the telephone

  • Evidence about public records. Evidence that:

    • A document was recorded or filed in a public office as authorized by law

    • A purported public record or statement is from the office where items of this kind are kept

  • Evidence about ancient document or data compilations. For a document or data compilation, evidence that it:

    • Is in a condition that creates no suspicion about its authenticity

    • Was in a place where, if authentic, it would likely be

    • And is at least 20 years old when offered (common law was 30 yrs)

  • Evidence about a process or system. Evidence describing a process or system and showing that it produces an accurate result

  • Methods provided by a statute or rule. Any method of authentication or identification allowed by a federal statute or rule prescribed by the Supreme Court

FRE 902 - Self Authenticating document

• Does not require independent proof of authenticity or other party to verify

  • Ex: birth certificate and the stamp it has. Someone can question it still. 

• Saves time during trial

• Other party can challenge ‘authencity’

• Examples: domestic public documents under seal (original); domestic public oducments not under seal (copy); foreign public documents under seal; certified copies of public records; official publications; newspapers; trade inscriptions; acknowledge documents (witnessed by another person); commercial paper; presumptions under acts of Congress; certified domestic records of regularly conducted activity; certified foreign records of regularly conducted activity

Visual Images

• photos/videos: must be authenticated and demonstrated to be accurate reproduyctions of the people/objects being portrayed

• Admissibility is within the discretion of the court

• Is it an accurate portrayal of what it purports to show?

• Can be by the videographer/photographer

• Can be by a witness who reviewed the area/events and testifies the image/video isa ccurate

• May be direct proof/evidence of a crime

• May assist the jury in understanding the nature of the crime

• Remaining issue: does the prejudicial impact of the image substantially outweigh its probative value? Does it create undue prejudice?

• 404B: evidence substantially outweighed by unfair prejudice

Authentication of medical images

• The proponent must demonstrate:

  • The process is accurate

  • The machine was in functioning order

  • The machine was run by a qualifying technician

  • A clear custodial chain of evidence

Authentication of voice communications

• Must present sufficient evidence that a person claimed to have made a statement was responsible for it

  • Ex: message on a voicemail, confession to the police

• Can be authenticated by anyone familiar with the person’s voice (Rule 901(5))

• Can be authenticated if speaker disclosed facts within that person’s particular/personal knowledge

Best evidence rule (FRE1002)

• An original is required unless a rule or federal law provides otherwise

• Certified copies can be substituted for originals (police records, birth certificates, passports)

• Duplicates can be accurately and reliably reproduced today

• Originals are still required where/unless:

• There is a general question about an item’s authenticity or it would be unfair to admit it

• If a duplicate only reproduces part of an original

Original not required if…. (FRE 1004)

• An item is lost or destroyed

• The original is not obtainable by judicial process

  • Can’t send subpoena to get a copy of it

• The original is in possession of the opposing party

• If original is in opposing party, you don’t have to produce original

• Defendants will hide evidence that is critical to their prosecution and won’t acknowledge they have it but if they can prove possession last time you had it, original doc wouldn’t be necessary

• The document is a ‘collateral matter’ - not important to the case

• Secondary evidence: evidence that takes the palace of the original

• models/maps/diagrams/exhibits: used to visually illustrate testimony 

• In court exhibitions: a court can exercise discretion to require a defendant to reveal identifying physical characteristics

Hearsay

• FRE801

• Definition: statement the declarant did not make while testifying at a trial or hearing, and a party offers that statement into evidence to prove the truth of ther matter asserted in the statement

• Requirements

  • A statement

  • Made by a declarant

  • Offered in evidence to prove the truth of the matter asserted (that the content of the statement is true)

• Witnesses testify as to what they observed through their own observations

• General rule: hearsay is not admissible in court (FRE 802)

• Cross examiantion of a witness relies on four basic issues:

  • Memory: can the attorney challenge the witness’ ability to recall the vents

  • Perception: did the person accurately observe, with their senses, the events in question

  • Narration: does the witness have the ability to relate the event at trial?

  • Sincerity: did the witness have a motive or interest to testify truthfully or fabricate

Why is hearsay bad?

• The statement by the person who made it is not subject to cross-examiantion

• There are no safeguards as to the truth or reliability of the statement

• The admission of a hearsay statement violates the Confrontation Clause (sixth amendment: in all criminal prosecutions, the accused shall enjoy the right to be confront with the witnesses against him)

• During a trial or hearing the opposing party must raise a hearsay objection before the witness answers the question. Could possibly move to strike the question and answer, but the statement is already out of the bag.

Hearsay - Relevant Caselaw

• Ohio v Roberts: hearsay statements are admissible if the declarant is unavailable and the statement was made under circumstances providing a ‘sufficient indicia of reliability’

• Michigan v. Bryant: if the primary purpose of a statement was to enable police assistance to meet an ongoing emergency the identification of the shooter and the location of the shooting were ‘non-testimonial’

• Bullcoming v. New Mexico: the prosecution cannot introduce a forensic laboratory report without the in-court testimony of the person who performed the test

• Dying declaration: presumption they’re going to tell the truth when they’re on their death bed. Not the best turnout

• Admissible if you’re dead, unavailable, and circumstances sufficient reliability 

Exceptions to the Hearsay Rule

• Rule 801 (d)(1)(A) - prior inconsistent and consistent statements

  • Inconsistent: out of court statements that are inconsistwnt with the witnesses direct testimony

  • Can be used to impeach the credibility of a witness it not made under oath

  • Consistent: used to rehabilitate a witness statement so that it presents to be more truthworthy to a juror than it otherwise might be.

• Rule 801 (d)(1)(B) - admission (typically reliable; person who made the statement has the opportunity to take the stand; people should be responsible for the statements)

  • Admissions by a party opponent (a defendant’s confession or statements made by the defendan that undercut their defense - can be verbal or non-verbal

  • confession: a direct statement of guilt by an accused

  • Authored admissions: statements by someone authorized to speak on behalf of a party to a case

  • Admissions by an agent: statement within the scope of agency.employmeny by a person who makes the statement during the existence of the relationship

  • Admissions by a co-conspirator: statement made by a co-conspirator in the course of a conspiracy and in furtherance of the purpose of the conspiracy 

  • Adoptive admission:

    • When a person reacts to a statement made by another that may  reasonably be interpreted as an affirmation that the statement is true

    • The judge decides if the statement was heard/understood or whether a reasonable person would have objected to the statement)

    • A jury would be asked to decide whether a reasonable person in defendant’s position would have denied/protested the statement if they believed it was untrue

• Rule 801(d)(1)(C) - Identifications

  • Admissible as non-hearsay, substantive evidence

  • Subject to cross-examination trial

• Availability of declarant immaterial:

  • Present sense impression (803(1)) - statement describing an event as it is being perceived (must be contemporaneous)

  • Excited utterance (803(2)) - startling event, made while under the stress of the vent, related to the event

  • Then existing mental/emotional/physical condition (803(3)) - mental (motive, intent, planning); emotional, sensory or physical condition

  • Medical diagnosis/treatment (803(4)) - statements amde for treatment/diagnosis - past/present symptoms, pain, sensation

  • Business records (803(5)) - entered by a records custodian within the ordinary course of business

  • Absence of business records (803(7)) - admitted to prove records did not exist

  • Public records (803(8)) - absence of a public record (803(10))

  • Vital statistics (803(9)), birth, death, marriage (803(12))

• Declarant Unavailable:

  • Assertion of a privilege (husband/wife, attorney/client, priest/penitent, doctor/patient, etc)

  • Refusal to testify

    • 5th amendment - right to not self incriminate

  • Faulty memory

  • Death

  • Absence without ability to secure an appearance

  • Wrongdoing 

Forfeiture of wrongdoing:

is a legal doctrine allowing hearsay evidence to be admitted at trial when a defendant has wrongfully made a witness unavailable to testify, effectively forfeiting their Sixth Amendment right to confrontation. It applies if the defendant engaged in intentional misconduct to prevent testimony (e.g., murder, threats).

Rule 804 - Declarant is not available as a witness

• Rule 804(b)(1) : former testimony, given under oath and subject to cross examination, certified transcript

• Rule 804(b)(2): statement made under belief of impending death, person is unavailable, limited to civil cases and homocide prosecutions, facts are related to the cause/circumstances of defendant’s death, made with first hand knowledge

• - rule 804(a)(3): declaration against interest - people would not admit or make declarations against their interest unless they are true, person had to have personal knowledge of the facts, may involve criminal liability

• Rule 804(b)(4): statement of personal/family history - to establish births, deaths, marriages, adoption (generally rwquires blood or marriage relationship)

• Rule 804(b)(6): forfeiture by wrongdoing - a statement offered against a party that wrongfully caused the witnesses/declarant’s unavailability 

• Rule 807 - residual exception (hard to use, not typically relied upon for admission of a statement) basically, if the hearsay statement at issue doesn’t fit another exception, you can try Rule 805

Rule805:

• Hearsay within hearsay

  • Will not be excluded so long as both/each statements satisfies an exception to the relevant rule(s)

  • Not all hearsay is inadmissible, and there are exceptions

Privileges:

• Might impact the way the government or witness can go to court

• In criminal trials, the determination of guilt or innocence depends on a full and accurate description presentation of the facts

• Testimonial privileges: the holder of the privilege may waive protection of the privilege or invoke the protection of the privilege and refuse to testify. The holder of the privilege may also present the other party in a privileged relationship from testifying

• Privileges are criticized for inhibiting, rather than encouraging, the search for the truth. Trial is supposed to be a search for the truth.

Types of Privileges:

• attorney/client

• clergy/penitent

• physician/patient

• psychotherapist/patient

• husband/wife

• journalist/news media privilege

• Governmental privileges

  • Executive

  • State secrets

  • Official information

  • Confidential informants

  • Grand jury

Common Requirements:

• Confidentiality

• Relationship

• Outside parties

• Exceptions to disclosure

• Waiver

• death/decedent

• The burden of proof is ont he party claiming the privilege 

Policy Considerations

• Social interest

  • husband/wife (wouldn’t want to inhibit the harmony of the marriage)

  • priest/pentinent

• Effectiveness

  • Promoting frank communication

• Privacy

attorney/client privilege

• Privilege was created in common law

• This is one of the oldest privileges

• Neither the client nor the attorney can be compelled to testify absent a waiver from the client

• Applies to both criminal and civil matters

• Recognizes people need effective, legal representation

• Is a special relationship 

• Requirements:

  • Client - someone takling to an attorney for legal advice

  • Attorney - a person licensed to practice law

  • Communication - between the attorney and the client

  • Confidential communications: communications ‘intending to be confidential’ are protected

  • Scope: based on the focus of the legal services

  • Payment - helpful but the privilege is not dependent on payment of a fee

  • The client waives the privilege by authorizing the disclosure of confidential materials

  • Privilege lives beyond the death of the client

Scope of attorney/client privilege

• Regards oral or written communications made for the purpose of professional legal services

• Applies in all stages of litigation

• Privilege attaches even if client does not retain the lawyer or lawyer declines to take the case

• Physical evidence turned over to the attorney from the client is not privileged (its not ‘communication’)

• Privilege does not apply to business or personal advice (non-legal)

• Privilege continues after the client of the client, unless the communication relates to disputes between individuals regarding the inheritance of a will

• Applies to legal assistants working for the attorney

• Is waived if the client consults with an attorney in the presence of a third party

Exceptions to the attorney/client privilege

• Crime - fraud exception

• Counsel cannot reveal perjury, but they have a role to fill

• Civil action for malpractice against an attorney

• Lawyer can reveal the client’s name, the dates of consultation, and the amount of payment of legal fees

• Work product privilege: applies to documents prepared in anticipation of litigation (not documents with an attorney’s opinions, research and legal opinions) 

  • Protected under client attorney privilege b/c it’s practically unfair 

Clergy/Penitent Privilege

• This privilege reflects the need to disclose to a spiritual counselor, in aboslute confidence, flawed acts and to receive consolation, forgiveness and guidance in return

• The holder of the privilege is the penitent

• Clergy: a minister, priest, rabbi, or other functionary of a religious organization, or someone the penitent reasonably believes is consulting him or her

• Communications between penitent and clergy in confident given during spiritual counseling (not limited to confessions, marriage counseling, religious education session, or casual conversations unrelated to religious counseling)

• Confidentiality: communications mus tbe confidentialy made - intended to be confidential and not intended for disclosure

• Presence of third parties not related by marriage may defeat the confidentiality of the privilege

• Exceptions: some jurisdictions imposed a duty on clergy to report child abuse

• Waiver: the privilege is waived if not invoked at a trial or if the substance of communications is shared with a third party

Doctor/patient privilege

• This privilege is not a product of common law

• This privilege is not recognized in federal court, but the federal court may protect communications as part of a right to privacy

• Requirements:

  • Physician (licensed) includes osteopaths, chiropractors, dentists (in some states), and people working under the supervision of a physician (physical assistant, nurse practitioner)

  • The person consulting the doctor is doing so for diagnosis or treatment of the patient

  • The scope of communication is made during consultation for medical diagnoses/treatment

• Holder of the privilege: the patient. The patient may assert the privilege and prevent a doctor from testifying. If the patient waives the privilege, the doctor can be compelled to testify. The doctor can assert the privilege for the patient if the patient is not present at trial.

• Does not cover plans to commit a crime

  • The lethal impact of drugs, surgeries to conceal the identity of a suspect, providing a drug addict a prescription for illicit drugs

• Duty to report:

  • Sexually transmitted diseases (HIV, etc)

  • Child abuse

  • Gun violence

  • Burn injuries

  • DV injuries

  • Criminal activity generally

• Does not include incidential information:

  • Name, address, occupation, age, date of treatment

Psychotherapist/patient privilege

• Recognized in Jaffee v. Redmond (518 US 1 (1996)

• Effective therapy depends on an atmosphere of confidence and trust where the patient is willing to make a complete and frank disclosure of facts, memories and fears

• The privilege extends to psychiatrists, psychologists and social workers for the purpose of diagnosis and treatment of mental or emotional problems

• Extends to both civil and criminal cases

• Dangerous patient exception: a therapist has a professional and legal ‘duty to warn’ another of a dangerous patient

• A patient waives this privilege if he places his mental condition at issue int he proceeding/trial.

Husband/wife privilege

• Marital communications privilege: protects private, confidential communications between spouses during the marriage

• Applies even after the marriage ends

• Doesn’t apply if the communications were made in furtherance of a crime (the crime fraud exception)

• Half of the states hold communications remain privileged following the en dof the marriage (death or divorce), but only for communications made during the marriage

• A divorce spouse may prevent the other spouse from exposing privileged communications

• Both spouses holding the privilege can refuse to disclose communications and prevent the other spouse from disclosing communications in court

• Applies to both criminal and civil cases

• Waiver: if communications are overheard by third parties/others, or read by others… but if one spouse has disclosed communications to a third party, and the other has not, the non-dsiclosing party can still claim/assert the privilege 

• Exceptions:

  • Domestic violence charges

  • Crimes of violence against children

  • neglect/desertion

  • Bigamy

  • Crimes against the property of a spouse

Spousal testimony privilege:

• One spouse may refuse to testify against the other spouse

• The holder of the privilege depends on the state and the federal court. In the federal system, the witness/spouse holds the privilege and chooses to testify or not

• Scope of privilege: husband/wife privilege applies in criminal cases. In civil cases, either spouse may be compelled to testify. Privilege attachs so long as the parties are married

• Exception: the privilege is not recognized where the marriage is for the purpose of preventing the other spouse from testifying, if the marriage was entered into fradulently (immigration - court can conclude the marriage is not valid so there is no privilege) or where both spouses were joint participants in a crime

Government privileges:

• Executive privilege: applies to the president of the USA, protects confidential communications, is abolsute in regard to the military, diplomatic matters or national security matters; State courts recognize the privilege for state governors; the court can review the information subject to the privilege ‘in camera’

• State secrets privilege: the privilege for the government preventing the disclosure of secrets of a state or official information, intelligence operations, defense, military or diplomatic matters (there is a ‘reasonable likelihood’ of danger that the evidence would disclose a state secret or official information)

• Official information privilege: at common law, official government documents were not required to be released if disclosure was not in the public interest (includes ongoing investigations, personnel records of government employees and information that, if released, would threaten national security)

• Confidental information privilege: the government’s ability to withhold the identity of informants who assist police in investigating criminal activities. Disclosure is required if the informant’s testimony is material to the guilt or innocence of the defendant at trial (doubts are resolved in favor of disclosure of the informant)

  • Public policy reasons for CI privilege: government’s interest in successfully investigating crime; citizens should feel an obligation to report crimes; withholding the identity of an informant encourages people to cooperate with the police and protect people from retribution

• Grand jury confidentiality: the grand jury operates under oath to keep deliberations secret. Punishment = contempt of court

  • Reasons: independence; witnesses; and to protect the accused or investigations

News Media Privilege:

• This privilege was not recognized at common law

• It is a qualified privilege today in both state and federal courts

• In considering th privilege, the court should ocnduct an in-camera hearing, where the judge considers the following:

  • Is the information sought relevant?

  • Can the information be obtained by alternative means?

  • Is there a compelling interest in disclosing or preserving the information sought?