CA Evidence: Authentication, Writings, Real Evidence, Testimonial Privileges, Procedural Considerations

Ancient Document Authentication

In California, a document can be authenticated by evidence that it is sufficiently old, is in a condition that creates no suspicion as to authenticity, and was found in a place where such a writing would be kept. The document must be at least 30 years old

Ancient Document Hearsay Exception

Documents that are more than 30 years old are an exception to hearsay rules

Self-Authenticating Writings

The same as federal law except trade inscriptions and certified business records are not self-authenticating

Secondary Evidence Rule

When a party seeks to prove the contents of a writing, the party is required to produce the original, subject to exceptions. California equivalent of the Best Evidence Rule. Exempt from Prop 8

Admissibility of Duplicates and Other Secondary Evidence

Where the secondary evidence rule applies, duplicates and any written secondary evidence of the contents of the original, such as reconstructed or handwritten copies, are usually admissible unless it would be unfair to do so or there is a genuine question as to the authenticity of the original. Oral testimony about the contents of the writing is not admissible unless a satisfactory excuse is given for non-production of the original

Testimonial Privileges: Erie Doctrine

California privilege law applies in a civil action brought in a California federal court under diversity jurisdiction

Presumption of Confidentiality

In California, a communication made between persons in a privileged relationship is presumed to have been made in confidence. This is true even if the communication was transmitted electronically. The proponent has the burden of proof to establish that the communication was not confidential

Attorney Client Privilege: Duration

In California, ACP ends once the estate of the deceased is distributed and the executor of the estate is discharged

ACP: Corporate Clients

ACP applies to communications from an employee/agent if: (1) the employee/agent is the natural person to speak to the lawyer on behalf of the corporation in the matter; or (2) the employee/agent did something for which the corporation may be held liable and the corporation instructed her to tell its lawyer what happened. There is no privilege for a mere witness who happens to be an employee

ACP Exceptions

The privilege does not apply where: (1) multiple parties consult an attorney on a matter of common interest and the communication is offered by one party against another in subsequent litigation; (2) the attorney’s services were sought to further crime or fraud; (3) the communication relates to an alleged breach of duty between attorney and client; (4) the client puts the legal services at issue in the case; (5) the communication is relevant to an issue between parties claiming through the same deceased client; or (6) the lawyer reasonably believes that disclosure of the communication is necessary to prevent a crime that is likely to result in death or substantial bodily harm

Physician-Patient privilege

Applies to communications with a licensed physician, or someone the patient reasonably thinks is a licensed physician, for the purposes of diagnosis or treatment. It also applies to communications with the physician’s staff member while the staff member is serving as the physician’s agent to gather information for the physician

Psychotherapist-Patient Privilege

The same as physician-patient privilege, but also covers a wide range of mental health workers, including social workers, counselors, school psychologists, mental health nurses, assistants, and interns

CA and Federal exceptions for physician-patient and psychotherapist-patient privilege

(1) the patient puts their condition at issue; (2) the professional services were sought to aid in a crime or fraud, or to escape capture after a crime or tort; (3) the case alleges a breach of duty between a patient and the psychotherapist/physician; and (4) the communication is relevant to the issue between parties claiming through the same deceased patient

Psychotherapist-Patient Specific Exceptions

(1) if the psychotherapist has reasonable cause to believe that the patient is a danger to themselves or others, and that disclosure is necessary to end the danger; (2) the patient is a child under the age of 16 and the psychotherapist reasonably believes that the child has been the victim of a crime and that disclosure is in the best interest of the child; or (3) the psychotherapist has been appointed by the court

Physician-Patient Specific Exception

Physician-patient privilege does not apply in criminal cases

California-Specific Privilege Exceptions for both psychotherapist-patient and physician-patient privileges

Neither privilege is applicable: (1) to information that the psychotherapist/physician is required to report to a public office; or (2) in competency proceedings

Spousal Testimonial Privilege

A witness-spouse may refuse to testify against their spouse. In California, this applies to both civil and criminal cases and extends to registered domestic partners. The spouse/partner may not be compelled to even take the witness stand

Confidential Marital Communications

Applies in all cases, can be invoked by either spouse, and protects confidential communications that were made during marriage. Extends to registered domestic partners

Other California Privileges

(1) confidential communications between a sexual assault/DV/human trafficking counselor and a victim; (2) penitential communications between penitent and a clergy member who routinely receives such communications and whose religion requires them to be kept secret; (3) a privilege for official government information or the identify of an informer; (4) a privilege for trade secrets; (5) a privilege for a voter’s secret ballot; and (6) immunity from contempt of court for a news reporter who refuses to disclose their sources

California Government Information/Informant Identity Privilege

Absent a statute forbidding disclosure, such information is privileged only if the trial judge concludes that the public interest in keeping it confidential outweighs the need for disclosure

Preliminary Questions

The judge is generally bound by the rules of evidence when deciding preliminary questions

Judicial Notice Court Discretion

A fact is appropriate for judicial notice if: (1) it is generally known within the court’s jurisdiction; or (2) it can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. Only mandatory if a party requests judicial notice, otherwise judicial notice is discretionary

Judicial Notice of Facts Exception

Even if not requested, the court MUST take judicial notice of matters of generalized knowledge that are universally known

Conclusiveness of Judicial Notice

A judicially noticed fact is conclusive in both criminal and civil cases