Relevancy is it relevant? 401



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Clip – Hanks calls wife trying to call mistress and wife recognizes his voice - Lay witness identification

  • Clip Voice recognition - 901(b)(3) comparison by trier of fact – possible problem p. 308 example 5 – comment “since oral voice id is not a subject of expert testimony the requisite familiarity might be acquired before . . .” It’s not likely they were referring to other kinds of expert testimony – voice print analysis or other kinds of technology developed today.

  • 10.4 – Robbery at pizza place; later robber calls and asks if everyone is okay; star 69 calls him back; the number was from another pizza place they go and arrest D.
    901(b)(6) might be able to use call tracing (what they were trying to do above in clip)

  • Small (2007) - D charged w/ murder. Victim’s friend testified victim was in debt and fearful for his life. Victim used friends phone to call about debt. Friend called back Dominique to try and make arrangements repay victim’s debt. D’s wife testified at trial that Dominique was a nickname Small used. Trial Ct admitted friend’s testimony.
    - D’s statements on the phone can be admissible under the party-opponent admission exception to the hearsay rule if the state can authenticate that the person speaking on the phone was D. Used 901(b)(4): The state authenticated the person to whom Ellos spoke on the phone was Small (i.e. “Dominique”) through distinctive characteristics that indicated that the caller could only be Small. *Note: 901(b)(5) or (6) would not work here b/c Ellos did not know Small’s voice
    *
    2 other methods for authenticating phone convos are acceptable for purposes of 801(d)(2)(A), and are less vulnerable to cross: (1) evidence that call was made to a number assigned by phone co to D; (2) voice ID, where caller knows D’s voice

  • Photographs - ASK (1) For what purpose are you offering it? & (2) Is it reliable? (Wagner )

  • Simms v. Dixon (1972) – Photo Admissibility Test is whether the photos accurately depict what is shown. A photographer does not need to be present to admit a photo, so long as a witness testifies, from personal knowledge, that the exhibit fairly and accurately represents what it is supposed to represent.
    -
    No need to be taken at or near the time of the litigation however it must accurately represent the facts allegedly portrayed
    - No need for the photographer to have seen it, rather just someone who saw the thing from the perspective
    - Staged photos: Admissible if offered to illustrate witness/victim testimony.
    - The judge has discretion to exclude demonstrative evidence if he believes it will likely be misleading or useless (403)

  • 10.6 – CGA to show previously formed opinion of witness.
    Option 1: 901(3) analysis: Comparison by trier or expert witness
    -
    First, expert testimony presented to show trajectory without CGA; then show CGA – ask, “is it a fair and accurate representation of the events you just testified to that formed the basis of your opinion?” If CGA accurately reflected his testimony it would be admissible subject to 403.
    Option 2: 901(b)(9): Process/system – testify that he constructed the animation.
    ** Ideally you would d both option 1 and option 2


  • Thelma and Louise Clip: security camera tape from store being robbed. Options: (1) ask a person who was there if it is a fair and accurate depiction of the robbery (gives victim 2 chances to tell his story); (2) if no witness is available, a technical person could be put on the stand to talk about installation and monitoring of the camera.
    -
    You may not put the cop on the stand to testify that he got the tape from the store clerk a few days after he was robbed. This is bc anyone can tamper with a camera. You must have a witness to say it a fair and accurate depiction

  • Wagner v. State (Ct of App of FL, 1998) – chain of custody issue here. Cop videotaped an undercover drug deal. Tape was introduced & cop testified to recording equipment’s installation. Informant unavailable, but another witness ID’d D on tape. Gov. used 901(b)(9) [Process/System] proof to authenticate tape. Relevant, reliable photographic evidence is admissible upon a consideration of 5 factors (affirmed) to establish reliability: evidence (1) establishing time & date; (2) showing edits or tampering; (3) of operating condition & equipment as it relates to the accuracy and reliability of photographic product; (4) of the procedure employed as it relates to the preparation, testing, operation, and security of the equipment used to produce the photographic product, including the security of the product itself; (5) testimony identifying relevant participants in the photographic evidence.



    1. 902 Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following: (1) Domestic public documents under governmental seal; (2) Domestic public documents not under seal; (3) Foreign public documents; (4) Certified copies of public records; (5) Official publications; (6) Newspapers and periodicals; (7) Trade inscriptions and the like; (8) Acknowledged documents; (9) Commercial paper and related documents; (10) Presumptions under Acts of Congress; (11) Certified domestic records of regularly conducted activity; (12) Certified foreign records of regularly conducted activity.



  • The Best Evidence Rule – unless you are really trying to prove the content of the writing, photo, or recording (you are often not trying to do this – in a copyright case you would be trying to prove the content)

    1. 1001

    1. (1) Writings and recordings. consist of letters, words, numbers, or equivalent set down by handwriting, typewriting, printing, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.

    2. (2) Photographs. "Photographs" include still photographs, X-ray films, video tapes, and motion pictures.

    3. (3) Original. the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. photograph original includes the negative or any print therefrom. computer data original includes any printout or other output readable by sight, shown to reflect the data accurately, is an "original".

    4. (4) Duplicate. counterpart produced by same impression as original.

    1. 1002

    1. To prove content of a writing, recording, or photo, original is required, except as otherwise provided in fres or by Congress.

    1. 1003

    1. A duplicate is admissible unless (1) a genuine Q is raised as to original’s authenticity or (2) under the circumstances it would be unfair to admit the duplicate in lieu of the original.

    1. 1004

    1. The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if-- (1) Originals lost or destroyed, unless the proponent lost or destroyed them in bad faith; or (2) Original not obtainable; or (3) Original in possession of opponent

  • Problem 10.7 – Note: trial court allowed the evidence; court called counsel to the bench and said to the prosecutor, “of course you have the right to proceed, it seems when you have a case of perjury and a transcript … you should put it in evidence instead of proving what it said by a witness memory.”

  • Unit 3: Privileges Chapter 11 privileges general principles

  • Privileges: 501 - special treatment to a variety of confidential communications, keeping them from the trier of fact

    1. Except as otherwise required by the Const. or by Act of Congress or in Supreme Court’s rules pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of common law as they may be interpreted by U.S. courts in light of reason and experience. However, in civil cases where State law supplies the rule or privilege, it shall be determined in accordance with State law.

    2. - Generally, other rules keep out evidence that isn’t reliable or trustworthy; Privileges look to external policies; keep evidence out, even if reliable, to promote social goals. Rationale: communications are socially desirable, and people would be less likely to make them if they were not privileged.; state should not intrude on personal relationships

  • Proposed Rules 501-513 were never enacted: 9 specific evidentiary privileges (p. 354 in rule book)
     (1) real diversity among states concerning privilege law; (2) some privileges inexplicably left out of proposal (no inclusion of marital privilege; proposed 505 did allow accused in crim case to prevent spouse from testifying against him, but not a true privilege)

  • Rejected privilege rules survive though - Senate wrote that their rejection was not disapproval, but rather determination that privileges should be a case-by-case determination. **Allows federal courts to define new privileges, in crim cases & federal Q civil cases, by interpreting CL in light of “reason and experience.” In diversity cases, the state whose substantive law applies, supplies the law of privilege.

  • Only the actual STATEMENT made in confidential relationships are kept secret by privileges; privilege does not protect against revealing the INFO a client knows whether or not the client may have communication that info in privileged convos

  • All privileges are rooted in an imperative need for confidence & trust



    1. Privilege

    1. Psychotherapist-Patient

    1. Priest-Penitent Privilege

    1. Reporter-Source Privilege

    1. Policy

    1. Facilitates treatment for individuals suffering from mental/emotional problems

    1. Sacred communication that shouldn’t be sullied by bringing it into court. *Some jurisdictions require it to be a formal discussion whereas others extend it to any discussion

    1. Public’s right to be informed; First Amendment –freedom of speech

    1. Key Case

    1. Jaffee (1996) – Officer shot and killed a man; went to therapy after with a clinical social worker. D argues convos should be privileged. Court holds that confidential communications between a psychotherapist and patients in the course of diagnosis and treatment are protected from compelled disclosure under 501 (1) Experience: all 50 states have some form of it already; & (2) Reason: discourse promotes mental health of the patient
      Court does not want to water down the privilege, rejects 7th circuit’s balancing component bc for privilege’s purpose to be served, its outcome must be determinable w certainty.
      Dissent (Scalia, Rehnquist): If the privilege exists, it should not extend to the social worker

    1. Morales v. Portuondo (SDNY 2001) - Witness Privilege v. D’s Need for EvidenceSometimes, even though there is a privilege and it’s appropriate for it to be invoked, the privilege might have to give way to another compelling circumstance (i.e. constitutional right to 6A)
      - Fornes approached Father Towle w/ confession that he was the murderer, not the 2 convicted. Convicted D’s lawyer filed a motion to set aside verdict, but Fornes pled 5A. Priest could not testify due to privilege. Years later, Fornes died and Father Towle signed an affidavit attesting to his former statements. D may introduce hearsay w indicia of reliability that would otherwise be inadmissible if the exclusion of such would amount to a denial of D’s right to “a trial in accord w/ traditional and fundamental standards of due process.” Fornes’ confession to 4 different people indicate its trustworthy, they were made in circumstances where he had no motive to lie, he seemed remorseful, and the statements were full of guilt

    1. In Re Grand Jury, Judith Miller (D.C. Circuit, cert. denied 2005) – Scooter Libby Case. Dist. Ct. jailed reporter (1) Reporter source IDs are not protected under 1A (Branzburg v. Hayes). (2) While 3 court members differ about whether there is a CL privilege, all agree that if there is, it is not absolute and may be overcome in appropriate circumstances.
      Sentelle Concurrence: reporters refusing to testify before grand jury have no CL privilege. Issue for the legislature.
      Henderson Concurrence: We agree if there is a privilege it doesn’t apply here – stop there bc breach of security issue here.
      Tatel Concurrence: There should be a CL privilege, but it cannot be absolute- look to public interest v. potential harm. In this case, damage to the intelligence-gathering function is greater than news value

    1. Exceptions

    1. (1) No expectation of privacy - “Communication is confidential if not intended to be disclosed to third persons other than those present”
      (2) Dangerous Patient Exception (Jafee FN 19 ) – There are situations where privileges give way to serious threat of harm to the patient or others. See Chase (9th Circuit 2003); Hayes (6th Circuit 2000) – both declined to recognize this exception. Strong dissenting opinions advocating for this exception

    1. Protects confidential communications made to a member of the clergy when that person is acting in a religious capacity. (extends past death of the privilege holder).

      Includes any person reasonably believed to be a clergyman & only applies to religious matters in which some sort of religious advice or solace is sought



    1. NOTE rights meets privilege – privilege belongs to communicant so for example a parent cannot waive the rights of a child – it would be unauthorized disclosure because child never waived it



    2. - Privilege attaches to the reporter; not the source (opposite of other professional privileges)



  • -------------------------------------------------------------

  • Unit 3: Privileges Chapter 12 Lawyer-client privilege

  • Lawyer-Client Privilege 502: the oldest and most frequently asserted professional privilege

    1. (a) Scope of waiver. When the disclosure is made in a Federal proceeding or to a Federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a Federal or State proceeding only if: (1) the waiver is intentional; (2) the disclosed and undisclosed communications or information concern the same subject matter; and (3) they ought in fairness to be considered together.

    2. (b) Inadvertent disclosure. When made in a Federal proceeding or to a Federal office or agency, the disclosure does not operate as a waiver in a Federal or State proceeding if: (1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).

    3. Rationale - “to encourage full and frank communication bw attorneys and clients and thereby promote the broader public interests in observance of law and administrative justice.” (J. Stevens in Jaffe)

  • Anatomy of a Murder Clip– lawyer explaining “the letter of the law” to his client; he explains how he could defend him on murder charge. What you need is a legal peg so the jury can hang their sympathy on your behalf. You need an excuse. Client: Was I crazy? Attorney: Perhaps… in the meantime think about how crazy you were. *Holds his hand toward temporary insanity defense

  • (1) It is the client’s – only the client or professional on her behalf may assert privilege

  • (2) It protects only those confidential communications made to facilitate professional services - “friendly chats do not qualify” (Gionis – Fornes’s “heart to heart talk with Father Towle) - not “Can-A-Man” privilege– if a friend asks a lawyer can a man do this, probably not protected; nor do talks made to a lawyer acting as a lobbyist or business agent (not as law advisor); neither do lawyer’s observations – if lawyer makes an observation that third parties could also have made

  • (3) It protects only confidential communications



  • Defining Confidentiality - Approaches for considering inadvertent waiver: (1) Traditional SL – party is responsible for their own accidents; (2) Intent-based (lenient) – waiver is like relinquishment of rights, it cannot be inadvertent; and (3) **Inadvertent Disclosures Balancing Factors (1) reasonableness of precautions taken to prevent the disclosure; (2) time taken to rectify the error; (3) scope of discovery; (4) extent of disclosure; and (5) fairness

  • Howell v. Joffee – Lynch, lawyer, and client left a voicemail for Howell (P). They don’t hang up the phone so continued convo is recorded. Ds sought to exclude msg under att-cl privilege. Privilege applies where communication originated in confidence that it would not be disclosed & was made to an attorney in his legal capacity for the purpose of securing legal advice or services. Primary purpose of D’s convo was to share info protected by privilege. Despite some extraneous comments, they are still protected.

  • Koch Foods of Alabama v. GE (2008) – Email exchange bw CFO & Counsel accidentally included in a discovery package from (P) to D. Immediately after it was sent, P objected that it was privileged and should be returned. P intended to assert privilege. Mistake of 1 single piece of paper among 3, 758 pages was not a failure to adequately review docs disclosed; privilege was not waived.

  • Defining Communications: Source of Fees and Client’s Identity - fine line between fact & confidential communications – just because it’s verbally communication, historically that’s not regarded as confidential communications

  • Osterhoudt (9th Cir. 1983) – citing 9th circuit Baird v. Koerner case – tax layer jailed for refusing to disclose who hired him to pay unpaid taxes. Normally it’s what’s said and not who said it. Osterhoudt case said Baird properly claimed his client’s privilege in refusing to disclose their identities. Generally identity is not a confidential conversation

  • 12.3 – Dietz v. Doe (1997) – there might be circumstances, like Baird case, where you might not be compelled to divulge identity of the client if the client’s identity can be seen as something intertwined with the confidential communications, but if a client paid you w a phony bill, that’s an attenuated circumstance to his visit, so his ID wouldn’t reveal something he told you in confidence.

  • Duration of Privilege

  • Swidler & Berlin (1998) – Supreme Court doesn’t like the balancing test. “Balancing ex post the impt of info against client interests, even in crim cases, introduces substantial uncertainty into the privilege’s application and for just that reason we reject its use in defining the controus of the privilege.” See Jaffee. *Noted that since courts have decided on exceptions/waiver after death, they implicitly concluded that it survived death.

  • 12.7 - Crime fraud exception waiver to attorney-client privilege – when client asks for assistance in carrying out or defending against future crimes or wrongs, the privilege does not apply.

  • Government Lawyers – (white water scandal during the Clinton administration, Lindsey case – Monica Lewinsky scandal, Ryan case) - the need for evidence may outweigh the privilege’s underlying rationale; all three cases had the same result – circuit courts don’t want to get into the privilege and don’t want to recognize another exception to it
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