Evidence Outline - Loyola University New Orleans



Evidence Outline

Prof. R. Jones

SULC Summer 2000

I. La Code of Evidence (generally)

A. Purpose of the rules of evidence is basically to keep evidence out from the trier of fact. Why? To prevent prejudice and (Art. 102) to have a fair hearing.

B. The term “Accused” applies on in criminal cases.

C. Code of Evidence applies to both civil and criminal unless specifically stated otherwise.

D. 3 types of evidence:

1. Testimonial from witness.

2. Documentary evidence - public records, etc....

3. Opinion evidence - expert witnesses (lay opinion usually not allowed).

E. 2 forms of evidence:

1. Direct

2. Circumstantial - want the trier of fact to infer something.

II. Parts of the trial

A. Voir Dire: picking of the jury (important)

1. Tell my story and persuade the jury.

2. Get the juror’s feel about the case.

3. Select jury that will vote in my favor.

B. Opening statement

1. Not any arguments.

2. 80% of jurors make up their minds in the opening statement.

3. Who goes first? The P or State and then D. D can reserve opening statement for later as can the P or State.

C. Presentation of evidence

1. Put on witnesses along with direct or circumstantial evidence.

ADMISSION AND EXCLUSION

I. Rulings on evidence (Art. 103)

A. Art. 103A: Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

B. Art. 103A1: Ruling admitting evidence: when the ruling is one admitting evidence, a timely objection or motion to admonish the jury to limit or disregard appears of record, stating the specific ground of objection; or

1. Contemporaneous objection rule. To preserve the right to appeal an erroneous trial court rule related to the admission of evidence, the objecting party must make a timely and specific objection.

2. Also called a motion to strike. Goes along with Art. 105.

3. Error may not be successfully raised on appeal unless a substantial right of the party is affected.

C. Art. 130A2: Ruling excluding evidence: when the ruling is one excluding evidence, the substance of the evidence was made known to the court by counsel.

1. This is called a “proffer” or “proffer of evidence”. This is to admit the evidence for the record only - not for the trier of fact. The judge doesn’t have to hear it. Present it by giving a statement or putting the person/evidence on the stand to be included in the record.

II. Preliminary questions (Art. 104)

A. Art. 104A: Preliminary questions concerning the competency or qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of Paragraph B.

1. Heard outside of the presence of the jury. This is the function of the judge. When the “interests of justice dictate”, the hearing is held outside the presence of the jury.

2. This is to prevent the jury from being prejudiced by hearing evidence which may later be ruled inadmissible.

B. Art 104B: Relevancy conditioned upon fact. Subject to other provisions of this Code, when the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

1. This is “conditional relevance” and the jury determines the issues of conditional relevance.

2. Ex: For fact A to be admitted have to introduce evidence to show that fact E exists. This is “linking up the evidence” and is done by showing B, C, & D which proves A.

3. Subject to an Art. 403 analysis.

C. Art 104C: Rule states that matters to be heard by the judge will be done outside the presence of the jury.

III. Limited admissibility

A. Art. 105: Evidence that may be admissible for one purpose and not for another or as to one party and not as to another can be limited by the judge.

1. This is done upon request of the moving party and this Article directs the judge to admit the evidence and give limiting instructions to the jury.

2. Failure of the judge to restrict evidence and instruct the jury shall not constitute error absent a request to do so.

IV. Witnesses

A. There are 3 requirements for a witness to be able to testify:

1. Have to be competent (Art. 601);

2. Have personal knowledge (Art. 602); and

3. Take an oath (Art. 603).

B. Art. 701: Governs when lay witnesses can give an opinion or inference.

1. Rationally based on personal knowledge; AND

2. Help trier of fact to understand testimony or determine an issue.

C. Art. 601: Every person of proper understanding is competent to be a witness except as otherwise provided by legislation.

1. The witness must have the general ability to appreciate truth and falsity and to understand the proceedings.

2. Who determines if a witness is competent? Under Art. 104A, the judge does.

3. Children are tested by understanding and not age.

4. Prior mental disorders do not automatically disqualify a person as a witness and is not a test of competency. It can be used to attack credibility.

5. Physical capacity (blind, deaf, mute, intoxicated, etc...) is not grounds to exclude, but can be used to attack credibility.

6. Prior convictions do not bar competency, but can be used for attacking credibility.

7. “Dead Man’s Statute” is to protect the estate of decedents, their representatives, and heirs against stale and unfounded claims. Cannot use oral testimony. Exceptions are bringing an action against the decedent within one year of death to enforce a debt, oppose a petition for authority to pay debts or a tableau of distribution or suit filed prior to death.

a. A witness is disqualified as competent when he has a interest in the action against the estate, is examined as a witness, or offers oral testimony against the estate.

8. Judges, jurors, and attorneys are not competent to testify in cases in which the are a part.

D. Art. 602: A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself. This Article is subject to the provisions of Article 703, relating to opinion testimony by expert witnesses.

1. Personal knowledge means information acquired through the use of the witness’ senses.

E. Art. 603: Oath or affirmation. Before testifying, every witness shall be required to declare that he will testify truthfully, by oath or affirmation administered in a form calculated to awaken his conscience and impress his mind with his duty to do so.

F. Hypo: Barber testifying about a car accident and he testifies that he saw the car whiz by at a fast speed. Have to show that the barber was paying attention, no obscurements to vision, and had actual personal knowledge (601, 602, and 701). Could also use Art. 403 to say no basis for conjecture of “whizzing by”.

G. Hypo: Barber says car going 75 mph. Object. Why? Use Art. 701 and ask if it is a rationally based perception. Is it what a “reasonable, prudent, and average person can understand?”

EXAMINATION OF WITNESSES

V. Mode and order of interrogation and presentation (Art. 611)

A. Art. 611A: The court exercises reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to:

1. Make the interrogation and presentation effective for the ascertainment of the truth;

2. Avoid needless consumption of time; and

3. Protect witnesses from harassment or undue embarrassment.

B. Art 611B: Witness may be cross-examined on any matter relevant to any issue in the case, including credibility. Exception is in civil cases where a party or person identified with a party has been called as a witness by an adverse party to testify only to particular aspects of the case.

1. Cross-examination is a fundamental right of a criminal defendant and refusal to be allowed to cross a witness may constitute a violation of his constitutional right to confront the witness against him.

C. Art. 611C: Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony and in examining an expert witness on his opinions and inferences.

1. Can use leading questions on cross-examination and more leeway is given in criminal cases.

2. A leading question is one with the answer in the question. Cannot suggest an answer.

D. Art. 611D: Scope of redirect and recross examination

1. This Article allows re-direct of a witness to clarify matters raised on cross-examination. The court may also allow re-direct examination as to other matters in the case.

2. When the court has allowed new matters to be brought out on re-direct, the other party can recross, but if no new matters on re-direct, then no recross.

3. Also goes along with introducing new evidence in prior to closing arguments. P or State can, with discretion of the court, but if D is not allowed to admit surrebuttal evidence which goes to the heart of the defense, then a reversal may be allowed.

E. Art. 615: Sequestration

1. The rule can be invoked by either party or on the court’s own motion.

2. Those are exempted are:

a. Party who is a natural person;

b. Representative or agent of a party who is not a natural person;

c. Expert witnesses (usually);

d. A victim. (But the victim is required to testify prior to the sequestration order and cannot be called as a witness in the case in chief or rebuttal.)

RELEVANCY AND ITS LIMITS

I. Art. 401: (definition) Relevant evidence means evidence having any tendency to make a fact that is of consequence to the case more or less probable that it would be without the evidence.

A. MUST ask the following questions:

1. For what ultimate factual proposition is the evidence being proffered?

2. Is the ultimate proposition of consequence to the determination of the case? - that is material? Look to the law and possible defenses.

3. Does the evidence tend to make the factual proposition more or less likely? It does not need to prove a fact - just tilt the scale slight (probative).

B. Two basic requirements to determine if evidence is relevant:

1. The evidence must relate to a fact that is of consequence to the determination of the case (materiality; based upon the law. What does the law permit? It has to logically and legally fir into the case); AND

2. It must have some probative value - The evidence makes the existence of a fact more or less probable than it would be without the evidence. Tilts the scale ever so slightly.

C. It doesn’t have to prove fact A - it just has to have any tendency to make the existence of any fact more or less probable.

D. Relevant evidence may be either direct or circumstantial.

1. Circumstantial evidence asks the trier of fact to infer from other evidence a particular factual proposition.

II. Art. 402: All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States and Louisiana, Code of Evidence, or other legislation. Evidence which is not admissible is not relevant.

1. Art. 402 is the catalyst for Art. 401. What is relevant evidence? See Art. 401 - IT HAS TO DO SOMETHING WITH THE CASE.

III. Art. 403: Exclusion of relevant evidence: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.

A. This is a test that is applied to every piece of evidence. It has to be applied on a case by case basis by the judge!!!!!!!!!!!!!

B. For evidence to excluded under this Article the policy reason for rejection must “substantially” outweigh its probative value.

C. What is unfair prejudice? It is a policy consideration that one has to determine if it will cause the jury to base a decision on something else besides the case - emotions.

D. What is confusing the issue? Causes the jury to look at some other peripheral issue. It distracts the jury’s view.

E. What is misleading? The jury may overrate the evidence. Deals with other things other than emotions.

F. What is undue or waste of time? 6 considerations for the judge:

1. Judge must recognize that litigants have a right to present all evidence they possess with regard to contested issues if the evidence is relevant, admissible, and cumulative;

2. Before imposing time limits, judge should be throughly familiar with the case through pretrial proceedings, status hearings, pretrial conferences, and discovery;

3. If time limits used, it should be imposed on all parties, before any party presents evidence, and sufficiently in advance of trial for the litigants to prepare for trial within the imposed limits;

4. Judge should inform parties prior to trial that reasonable extensions of time limits will be granted for good cause;

5. Judge should develop equitable methods of charging time against each litigant’s time limit; and

6. Judge should put rulings regarding time limits and reasons for rulings on the record.

G. Test for admissibility of evidence (RED):

1. Relevant - Art. 401;

2. Excluded by statute, constitutional provision, or other rule - Art. 402; and

3. Disallowed - Art. 403.

IV. Similar Happenings and Transactions: SHT evidence is when a party wants to introduce evidence that concerns other events or transactions between the parties or that involves another party similarly situated as proof as to the event or transaction in question.

A. The key issue is going to be whether the SH occurred under circumstances substantially similar to those surrounding the event in question. Always have to ask this question when considering SH evidence. If answer is no, excluded; if yes, admitted.

B. 4 reasons for SHT to be admitted:

1. Defect (proof of).

2. Dangerous situation at time of act.

3. Notice or knowledge.

4. Causation (proof of).

C. MUST do a Art. 403 analysis prior to allowing it in.

D. This is not Article 407!!!!!

CHARACTER EVIDENCE (RELEVANCY CONTINUED)

I. Art. 405 governs the introduction of character evidence in a trial. Important to know Art. 405 in conjunction with Art. 404A1&2. Also goes along with Art.’s 607, 608, and 609. NEED TO KNOW THESE.

A. Art. 404 deals with accused and not witnesses. Witnesses - 607, 608, 609.

II. Art. 404A: Character evidence generally not admissible in civil or criminal trial to prove conduct; exceptions; other criminal acts. Evidence of a person’s character or a trait of his character, such as moral quality, is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion.

A. Can’t introduce the character evidence of a person to prove conduct. Why? Too prejudicial to the jury. It plants the seed in the jury’s mind that once a crook always a crook.

B. D should not have to defend other crimes.

C. “Moral quality” is a La provision. It relates to reputation of a person for violence, honesty, truthfulness, law abiding, etc...

D. Pretty much applies to criminal cases and will apply to civil cases for criminal wrongdoing.

E. In cases in which character is at issue, it may be allowed such as in defamation/libel actions or entrapment as a defense or negligent hiring.

III. Art. 404A1: Character of accused. (1st exception and covers criminal cases.) Evidence of a pertinent trait of his character, such as moral quality, offered by an accused, or by the prosecution to rebut the character evidence; provided that such evidence shall be restricted to showing those moral qualities pertinent to the crime with which he is charged, and that character evidence cannot destroy conclusive evidence of guilt.

A. When good character of the accused can be used:

1. When introduced by the accused;

2. Involves a pertinent (relevant) character trait; and

3. Rebuttal evidence by the prosecution which attacks that relevant character trait.

B. D has to first “open the door”. Once open, the prosecution can then bring in evidence to rebut the D.

C. Can only introduce evidence of a person’s character with testimony as to general reputation - opinion testimony and specific acts testimony are not allowed.

D. How does this happen? D is accused of aggravated battery/aggravate assault. D calls a witness, his pastor to testify that D is of good reputation for peacefulness. D has now “opened the door” to his character.

E. Prosecution can use the D witness to attack character or present other witnesses to attack..

F. Prosecution may question D about involvement in prior SIMILAR criminal activities and may call witnesses to testify to the D’s bad character or question the D witness’ ability to testify to the D’s good character.

G. Prosecution can cross-exam D’s witness’ knowledge of prior arrests, particular misconduct, or other acts probative of particular moral qualitites pertinent to the crime involved. This is to expose the possibility that the witness lacks knowledge of the D’s character or to discredit the witness.

H. If the D takes the stand, he is only putting his credibility at issue - nothing else.

IV. Art 404A2: Character of victim. (2nd exception and covers criminal cases). Allows the D, except in sexual assault cases, to introduce evidence of a pertinent character trait of the victim of the crime to prove that the victim acted or did not act in a particular way on the occasion in question.

A. Self-defense defenses. Can use specific instances of the victim’s actions to prove eminent danger and actions justified, but first have to lay a foundation. Have to show that:

1. Reasonable apprehension ( eminent danger & actions justified);

2. Force was necessary to thwart attack; and

3. Show that victim was first aggressor.

B. This evidence is initiated in the same way as Art. 404A1: the accused offers a character witness who testifies to the pertinent character trait of the victim of the crime. Prosecution can call a witness to testify of the victim’s good character and use specific incidents.

C. If no evidence of victim being dangerous or doing an overt act is introduced, evidence of the dangerousness of the victim is no admissible.

D. In domestic abuse cases where the accused pleads self-defense and there is a history of assaultive behavior between the victim and the accused and they lived in a familial or intimate relationship, not necessary to first show a hostile or overt act on the part of the victim to introduce the dangerous character of the victim. But, a sufficient relationship must be established to allow a reasonable conclusion that the accused was aware of the victim’s assaultive behavior.

1. Expert witness can give opinion as to the effects to the state of mind of the accused due to the prior assaultive behavior of the victim.

2. If the accused offers evidence of the victim’s prior violent conduct to show the accused’s state of mind, the accused can also introduce specific acts known to the defendant, as well as reputation evidence. Can use specific instances to show dangerous character of victim.

V. Art. 404A2b: Prosecution can introduce character trait of peacefulness of the victim in a homicide case to rebut evidence that victim was first aggressor.

VI. Art. 404A3: Can introduce character evidence of a witness to impeach credibility.

OTHER CRIMES EVIDENCE

I. Art. 404B: Other crimes, wrongs, or acts. Generally, evidence of a person’s other crimes, wrongs, or acts is not admissible to prove the character of a person to show that he did or did not do a particular act on a particular occasion. This is an extension of Art. 404A.

A. It applies in both civil and criminal cases.

B. Can use character evidence when it is not being used to prove or disprove an act. Can also use character in when it is an element of the claim or defense. But, can use this in sentencing hearings in capital cases.

C. There are several exceptions to this Article when the evidence of past acts are used to prove, among other purposes, the following:

1. Motive: The emotion or reason.

2. Opportunity, Plan, or Preparation: To show that crime occurred. E.g., stealing from hardware store to get items to rob bank, or stealing key to get into the safe, etc...

3. Intent: State of mind. When is intent an issue?

a. When D disputes intent; and

b. When intent is an element of the crime by statute - specific intent.

4. Knowledge: An issue when D says he did not know or knowledge is an element of the crime. E.g., possession of stolen goods, distribution of cocaine, etc...

5. Identity or system: M.O.’s or identify D at crime by victim. E.g., wearing a mask President Clinton to rob banks or police lineup.

a. When using M.O., must 1) show D was involved in other charged crimes by preponderance of the evidence and 2) that M.O. employed by D in charged and uncharged crimes was so distinctive or similar that one can logically conclude that the same person did the crimes.

6. Absence of mistake or accident.

7. When it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

8. Lustful disposition. D had a particular disposition to commit this particular act on this particular type of victim. This only applies to child sex crimes only.

a. Remoteness of time does not matter, but age of victim does. Ages and other factors should be close from victim to victim. E.g., D only likes girls from 10 to 11 years old and tries to pick them up at playgrounds. Things like that.

b. For adult sex crimes, use system, plan, identity, motive, or intent.

D. *** Art 404B1: The res gestae rule. If prosecution has to prove act and the OCE is part of the act - can use it and no notice.

1. Why no notice? Because D already knows. E.g., D robs bank and steals car to get away. The stolen car is a separate crime, but part of the res gestae of robbing the bank.

E. *** Have to have a Prieur hearing before other crimes, acts, or wrongs can be used. The hearing consists of:

1. Notice given by State if requested by D to do so. (But, no notice if OCE is part of the res gestae, or convictions used to impeach D’s testimony.);

2. Written statement specifying which exception going to be using;

3. Evidence is not repetitive and cumulative or shows propensity of criminal behavior;

4. D has to request a jury limiting instruction;

5. Final jury charge by judge;

6. Show by preponderance of the evidence of D’s involvement in the OCE; and

7. Do a Art. 403 test.

a. Remoteness of time does not apply to child molestation cases.

F. When doing these problems, ask myself why the state is wanting to introduce OCE. Then ask if it is relevant for the purpose of what is trying to be shown? Is it a genuine issue of the case?

METHODS OF PROVING CHARACTER

I. Art. 405 covers how to prove character. Allows accused to introduce evidence of general reputation only. Not opinion or specific acts.

A. It has to be general reputation in reference to relevant community is which the character trait would be discussed.

1. E.g., witness plays poker for last 6 years with D and called as a witness for character trait of truthfulness in the community.

B. The community means a community of people in which the person works, does business with, or goes to school.

C. A foundation has to be laid first indicating that the character witness has knowledge of the person’s reputation in the community.

D. The evidence is hearsay, but is allowed under Art. 803.21.

E. General reputation has to show:

1. Relevant community;

2. Character trait was discussed;

3. Witness is aware of discussion - “has heard”;

4. And then witness can testify to whether the reputation for the trait is good or bad.

II. Art. 405A: Reputation. Except as provided in Art. 412, in all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to general reputation only. On cross-examination of the character witness, inquiry is allowable into relevant specific instances of conduct.

A. The prosecution can cross-exam about specific instances of conduct of the accused to expose that the witness lacks knowledge of the person’s character or to discredit the witness’ standard of evaluation. The judge must first do a 104A and 403 balancing test prior to allowing this questioning. The Johnson test includes:

1. No question as to the fact of the subject matter of the rumor, that is, of the previous arrest, conviction, or other pertinent misconduct of the D;

2. Reasonable likelihood that the previous arrest, conviction, or other pertinent misconduct would have been bruited about the neighborhood or community prior to the alleged commission of the offense on trial;

3. That neither the event or conduct nor the rumor concerning it occurred at a time too remote from the present offense;

4. That the earlier event or misconduct and the rumor concerned the specific trait involved in the offense for which the accused is on trial; and

5. That the examination will be conducted in the proper form, that is: “HAVE YOU HEARD,” etc, not “do you know”, etc.

III. Art. 405B: Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, such as in a prosecution for defamation or when there is a defense of entrapment, proof may also be made of specific instances of his conduct.

IV. Art 405C: Foundation. Before a person may be permitted to testify to the reputation of another person, must be establish that the witness is familiar with that reputation.

HABIT OR ROUTINE

I. Art. 406: Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. The evidence may consist of testimony in the form of an opinion or evidence of specific instances of conduct in number to warrant a finding that the habit existed or that the practice was routine.

A. This is not character evidence.

B. Habit refers to a person. It is a well defined and narrow activity. How narrow and long must the activity have occurred? If he has to think about it or only does it a short time - not a habit. Does it without thinking.

C. Routine refers to an organization. It is something that is done all the time. E.g., part of the SOP, stamp all incoming mail, wrap every package in a certain way, etc... Can also use opinions, specific instances, etc...

D. Still have to do a 403 test.

E. Example: speeding and getting tickets are not habits, but combing my hair a certain way everyday is a habit.

RAPE SHIELD STATUTE

I. Victims past sexual behavior in sexual assault cases (Art. 412)

A. Art. 412A: Opinion and reputation evidence of the victim is not admissible.

B. Art 412B: Other evidence exceptions. Specific instances of victim not admissible except for:

1. When the issue is one of the source of the injury (injury can mean VD, tearing of the hymen, pregnancy, etc...) or semen, but the past sex act must have occurred within 72 hours of the charged conduct with someone else other than the D; or

2. When the issue is consensual sexual activity with the accused. Did she consent?

C. Art. 412 has its own procedure and 403 test. The burden of proof is higher here on the D because has to show that past sexual conduct’s probative value outweighs (and not substantially outweighs) the prejudicial nature of the evidence.

1. D has to file written motion and give notice;

2. Hearing is held in camera;

3. Victim has to be notified by state and has the right to attend the in camera hearing; and

4. Motion has to be field within 15 days of arraignment.

D. Court has to apply the balancing test and ask the following: does the value of impeachment outweigh the value of damaging her character?

E. Court can limit direct and cross examination of victim. This is a policy consideration so the victim is not embarrassed or humiliated.

F. Hypo: father accused of raping 20 year old step-daughter. Step-daughter has had a sexual relationship with step-brother and threatened step-father with rape charge if he tired to stop the two. Father is denying the charge and wants to impeach her credibility/character. Father will have to prove that she had a motive to fabricate the rape charge through prior inconsistent statements or actions. The evidence outweighs the policy reason for not allowing it in and thus court lets it in.

IMPEACHMENT OF WITNESSES

(Art.’s 607-610 and 612-613)

I. What is impeachment? Any action taken at trial which tends to impair a witness’ credibility. Impeachment is a basic cross-examination rule. Typical methods of doing this are:

A. Prior conviction - Art.’s 609 and 609.1;

B. Revealing prior inconsistent statement - Art.’s 607 and 613;

C. Attacking witness’ reputation for truthfulness - Art. 608;

D. Showing that the witness is biased or has a vested interest in the outcome of the case, or relationship, or motive - Art. 607;

E. Showing witness has a defect in capability to observe, recollect, or communicate; or

F. Specific contradictions - Art. 607.

II. Attacking and supporting credibility generally (Art. 607)

A. Art. 607A: Anybody can impeach a witness, but if the calling party is trying to impeach - must first lay a foundation and advise the judge why.

B. Art. 607B: The credibility of a witness may not be attacked until the witness has been sworn, and the credibility of the witness may not be supported unless it has been attacked. However, a party may question any witness as to his relationship to the parties, interest in the lawsuit, or capacity to perceive or to recollect.

1. Cannot bring in any evidence to try and support a witness until that witness’ credibility has been first attacked.

C. Art. 607C: Attacking credibility intrinsically. Except as otherwise provided by legislation, a party, to attack the credibility of a witness, may examine him concerning any matter having a reasonable tendency to disprove the truthfulness or accuracy of his testimony.

1. Attack credibility by questioning the witness on the stand without bringing any outside evidence. Example: B had an affair with C. Ask B, after being sworn, if he had an affair with C. This is intrinsic. If he lies, then can bring in outside evidence which is extrinsic evidence. If he tells the truth, then cannot bring in anything.

D. Art. 607D: Attacking credibility extrinsically. Except as otherwise provided by legislation (the rape shield law):

1. Art. 607D1: use extrinsic evidence to show a witness’ bias, interest, corruption, or defect of capacity is admissible.

a. BIAS OR INTENT - CAN USE ANY EVIDENCE. BIAS IS ALWAYS A RELEVANT PURPOSE FOR IMPEACHMENT AND EXTRINSIC EVIDENCE OF THIS IS NATURE IS NEVER COLLATERAL.

b. When using extrinsic evidence to impeach a witness, make sure it is not collateral. Example is X is a witness to an accident. X testifies that it happened at the corner of A & B street and he was standing at Pizza Hut. Opposing counsel wants to introduce evidence that Pizza Hut is located at D & Main street. Can opposing counsel introduce this? Only if the location of the accident is in dispute (accident didn’t happen where Pizza Nut is)

2. Art.607D2: other extrinsic evidence, including prior inconsistent statements and evidence contradicting the witness’ testimony, is admissible when offered solely to attack the credibility of a witness unless the court determines that the probative value (403 test) of the evidence on the issue of credibility is substantially outweighed by the risks of undue consumption of time, confusion of the issues, or unfair prejudice.

a. Have to use Art. 613 and first direct the witness’ attention to the statement, act, or matter first. If witness continues to deny, then can introduce the extrinsic evidence to attack credibility.

E. Prior Inconsistent Statement (PIS) under 607D2

1. Although it is hearsay, can use a PIS for credibility, but not for its substantive value.

2. If PIS is not hearsay under 801D1a (under oath, subject to cross, and at criminal proceeding), then can use for substantive value.

3. Have to go through the Art. 613 foundation first before using the PIS to impeach the witness.

F. Contradiction under 607D2

1. This is another way to extrinsically impeach a witness. Example is X testifies that on the day of the incident it was a clear and sunny day. Ask X if it is true that he got his raincoat prior to leaving the building and X answers yes - a contradiction.

III. Attacking or supporting credibility by character evidence (Art. 608)

A. Art. 608A: Attack or support general reputation for truthfulness or untruthfulness only. Nothing else.

1. A foundation must first be established that the character witness is familiar with the reputation of the witness whose credibility is being attacked.

2. Personal opinion and specific incidents cannot be used when laying a foundation or attacking credibility on direct examination.

B. Art. 608B: Cannot use any extrinsic specific incidents except for conviction of a crime as outlined in Articles 609 and 609.1.

C. Art. 608C: Specific incidents can be used on cross-examination of the witness testifying about the character witness, but must meet the Johnson test first. Can only ask questions in the form of “have you heard”.

1. Character evidence has to be relevant to the issue at trial. Cannot be cumulative, repetitive, wasteful of time, etc... Example is D charged with money laundering and D wants to introduce evidence of peacefulness. Cannot do this because peacefulness has nothing to do with the issue of lying or fraud. If D was on trial for a violent crime, then peacefulness trait could be allowed subject to the Johnson requirements.

IV. Attacking credibility by evidence of conviction of crime in CIVIL CASES (Art. 609)

A. Can only ask the witness if he has been convicted of a crime, but no other details.

B. No misdemeanors or city ordinance crime convictions.

C. If witness lies, then can use the conviction of a felony state crime.

D. The conviction has to have some probative value to impeach the witness. Must do a 403 test.

E. If the crime involved dishonesty or false statement - then does not matter about the punishment given.

F. Time limit: 10 years or more passed - not admissible.

G. Effect of pardon (HAS BEEN ON THE BAR): If the person was given a pardon or annulment or other equivalent procedure BASED ON A FINDING OF INNOCENCE - then the conviction is inadmissible.

H. Juvenile adjudications will not apply to the defendant.

I. Pendency of an appeal is admissible when the conviction is admissible.

J. Other Crime Evidence is not admissible. Cannot use evidence of arrest, indictment or prosecution of the witness to attack credibility. Has to be a conviction.

V. Attacking credibility by evidence of conviction of crime in CRIMINAL CASES (Art. 609.1)

A. In a criminal cases, this Article applies to every witness including the defendant.

B. Prior convictions only - not prior arrests or prosecutions or indictments.

C. Any conviction of a criminal charge regardless about penalty. This means felonies and misdemeanors. Still have to do a 403 test.

D. *** If witness denies it and I follow 613 to bring it to the witness’ attention and he still denies it - then can introduce details.

1. How do I bring it in? Use the court record of the conviction!!!!

E. No time limit of how long ago the conviction, but still have to do a 403 test to see if the probative value outweighs the danger of prejudicing the jury or confusing the issue or misleading the jury.

F. If D is a witness and state wants to question D about prior convictions, the judge must do a 104A hearing. The judge must consider the following 4 factors:

1. Whether the prior conviction has probative value for conviction;

2. Point and time of conviction and witness’ subsequent history;

3. Importance of D’s testimony. ( If it is important that D testify and using questions of prior convictions will preclude D from testifying, court may not let it in); and

4. The neutrality of the issue of credibility. (If not a central issue, then probably will not be allowed.)

VI. Refreshing memory (Art. 612)

A. This Article is not meant to attack a witness - meant to help.

B. Any writing, recording, or object can be used to refresh a witness’ memory. Only for the purposes of jogging his memory and cannot testify from it.

C. Have to first lay a foundation that the witness has a memory of the thing testifying to, but needs to be refreshed.

D. Does not have to be written or prepared by the witness nor does it matter when it was prepared.

E. Difference in civil and criminal cases:

1. Civil case - if used before or during testimony the opposing counsel is entitled to examine it and use it on cross. Can introduce only the relevant portion of the item relating to the testimony into evidence.

2. Criminal case - only while testifying. This is the big difference. Doesn’t matter if used it prior to testifying. If using it while on the stand then opposing counsel is entitled to it.

3. Can have a hearing, in camera, to have the non-relevant material excised before the thing used to refresh memory is introduced into evidence.

F. Why is refreshing memory not hearsay? Because it is about the witness’ memory and not the document or thing being used to refresh memory.

HEARSAY

I. Hearsay in general

A. Definition: (Art. 801A) An out of court statement, verbal or non-verbal, made by a declarant who is not testifying on the stand, offered to prove the truth of the matter.

1. If the prove of the matter is not being made with the statement then it is not hearsay.

2. Does not matter if the declarant is on the stand - if he/she made it while not testifying - hearsay. Could be an exception to bring it in, but still hearsay.

3. What is a statement? It is either (1) a written or oral statement or (2) it can be non-verbal conduct intended to be an assertion.

B. Who is a declarant? (Art. 801B) The person making the out of court statement.

C. Jurisprudential non-hearsay? The following things are considered to not be hearsay by case law (not inclusive):

1. Words or acts that have “other legal significance”. E.g., contract law in trying to prove a contract exists. Defamation suits to show that D defamed P.

2. Verbal part of the act.

3. Effect on hearer. E.g., to show notice or knowledge.

4. State of mind of the declarant. E.g., husband charged with murder of wife and raises involuntary manslaughter defense. Offers evidence that best friend made statement that he was sleeping with D’s wife. D wants to introduce it not show that wife was unfaithful, but the effect it had on his mind.

5. That a statement or conversation was made. E.g., to show that a statement was made and not that the statement was true like someone charged with inciting a riot after yelling fire in a movie theater - not to show that there was a fire or not, but that the statement was made.

D. The statement has to be offered by the non-stating party. Don’t worry if the statement is trustworthy. Let the statement in because it is being allowed to rebut the accused or declarant.

STATEMENTS WHICH ARE NOT HEARSAY (ART. 801D)

I. Art. 801D1: Prior statement by witness.

A. ******* In order to use a PIS under this Article (not like Art. 607 which is for impeachment and not substance), 2 requirements must be met:

1. Declarant must be testifying; and

2. Under oath and subject to cross-examination.

II. Art. 801D1a: Prior inconsistent statement by witness.

A. Have to meet the first 2 requirements and then have to meet the following for it to be admissible under this PIS:

1. Inconsistent statement;

2. Declarant was under oath at prior hearing or preliminary hearing of the accused; and

3. Declarant was subject to cross-exam by the accused at the prior hearing.

B. Does not matter that the declarant was actually cross-examined or not - just had to be subject to it. The accused had to have an opportunity to cross and a motive to cross on that particular issue that is relevant at the present trial. If issues are not the same, generally will not be allowed.

C. No depositions or civil court testimony. Has to be a criminal case testimony and at a criminal hearing.

III. Art. 801D1b: Consistent statement by witness.

A. Meet first 2 requirements and then the following to be admissible:

1. Declarant testifying at present hearing subject to cross (no ex-parte hearings);

2. Recent charge (implied or express) of fabrication or motive to falsify; and

3. Do a 403 test.

B. Consistent statement does not have to be made at hearing. Can be in a deposition.

C. Only use this on redirect examination!!!!!!!!!!! Why? Because witness has been impeached and now want to restore credibility.

IV. Art. 801D1c: Identification.

A. First 2 requirements of 801D and then prior statement of identification is not hearsay.

B. E.g., when a witness does a police lineup.

V. Art. 801D1d: Sexual assault behavior.

A. First 2 requirements 801D and:

1. Applies to anyone over age of 12; and

2. Only initial complaint. Statement made to anyone else will not be allowed because then hearsay.

B. Some courts have let it in under excited utterance exception

C. Art. 804B5 is an exception for children under age 12. Child tells one person and then another - will allow the second person told to testify what was said.

VI. Art. 801D2: Personal, adoptive, and authorized statements. (Don’t have the 2 requirements here as in D1.)

A. Art. 801D2a: Personal statement - the statement is offered against a party and is that person’s own statement in either his individual or representative capacity.

1. Individual capacity - if it was his own statement. Does not matter whether he believes it or not.

2. Representative capacity - if it concerns an official duty. Does not matter if person was on or off duty when statement made.

B. Art. 801D2b: Adoptive statement - statement is offered against a party and is a statement which that person manifested his adoption or belief in its truth.

1. Have to show:

a. Person heard statement;

b. Person understood statement; and

c. Person intended to adopt statement as his own. (This is where the crux lies in proving this!!!!!!!!)

2. It has to be clear and unequivocal that the person adopted the statement and understood it.

3. What about silence? If it is where it would be improper or unnatural for a person to remain silent - then can use silence as a basis for adoptive statement. Still have to prove the above 3 things.

a. In criminal cases - once give Miranda, then cannot use silence as a adoptive admission.

4. What about flight? Same as silence.

C. Art. 8012c: Authorized statement - statement by a person authorized by him to make a statement concerning the subject.

1. Have to show:

a. Have to show agency relationship; and

b. Authorization to make statement.

VII. Art. 801D3: Relational or privity admissions.

A. Art. 801D3a: Agency or agent admission - the statement is offered against a party, and the statement is a statement by an agent or employee of the party against whom it is offered, concerning a matter within the scope of his agency or employment, made during the existence of the relationship.

1. Have to show the following:

a. Agency;

b. Made during scope and course of employment; and

c. Relates to agency.

2. Do not have to show that a person was authorized to make a statement. This is the difference between this Article and 801D2c.

B. Art. 801D3b: Co-conspirator statements. Have to show the following:

1. Prima facie case of conspiracy;

2. Statement pertains to the conspiracy;

3. Made during the existence of the conspiracy; and

4. In furtherance of the conspiracy.

VIII. Art. 801D4: Res gestae rule. Things said and done.

A. Spontaneous statements and not narration of the event.

HEARSAY EXCEPTIONS (ART. 803)

Availability of Declarant Immaterial

I. General

A. Any exception to the hearsay rule has to be credible. Most 803 exceptions are based on:

1. Personal knowledge of declarant; and

2. Made under circumstances that support his trustworthy.

B. Even though find an exception - still must do a 403 test.

1. Art. 403: evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.

II. Art. 803.1: Present sense impression. Statement made describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

A. 4 basic requirements:

1. Observation must be made at the time of the statement;

2. Statement must be made contemporaneously with the observation or immediately thereafter;

3. Statement must describe or explain observation; and

4. Statement generally made in the presence of the testifying witness (not really a requirement, but should be)

B. Make sure the statement describes or explains the issue and does not give an opinion.

C. Usually deemed trustworthy because no time for reflection and it generally bolsters the testifying witness.

III. Art. 803.2: Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

A. 3 basic requirements:

1. Startling condition;

2. Statement made relating to the exciting or startling condition; and

3. Statement made while declarant is under the stress of the startling condition.

B. It is not time specific. Only have to show that stressful condition remains.

1. Remember the movie “Ransom”.

IV. Art. 803.3: Then existing mental, emotional, or physical condition, or future action of declarant. (Show intent, plan, motive, design, mental feeling, pain, bodily health)

A. It is offered to prove that THEN existing condition of the declarant. Must show:

1. State of mind is relevant to issue at hand;

2. Statement made contemporaneously with the state of mind sought to be proved; and

3. Do a 403 test.

V. Art. 803.4: Statement for purposes of medical treatment and medical diagnosis in connection with treatment. Statements made for purposes of medical treatment AND diagnosis in connection with treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to treatment or diagnosis in connection with treatment.

A. Statement does not have to be made to a medical person. Just has to be related to seeking medical treatment.

B. Has to be for treatment and diagnosis.

C. Can include doctor report, but have to get over the Art. 805, hearsay within hearsay, hurdle.

D. Be wary of blame casting statements that attribute fault or identity - not allowed and will be excluded by 403.

E. Hypo: child is trick or treating and gets sick from eating an apple. Son tells mom and although hearsay it is allowed. Mom tells doctor - still hearsay, but will be allowed.

VI. Art. 803.5: Recorded recollection (or past recollection recording). If witness cannot remember, even after refreshing under Art. 612, then can introduce document into evidence.

A. 4 requirements to be met to use this:

1. Witness has first hand knowledge;

2. Record must be made or adopted at or near the time of the event;

3. Witness recollection must be insufficient so as to prevent him from fully and accurately testifying; and

4. Witness must vouch for the correctness of the statement.

B. This is like Art. 612 - first hand knowledge, made at time memory was clearer, and record refreshes.

VII. Art. 803.6: Business records exception. A memorandum, report, record, or data compilation, in any form, . . ., of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, . . ., and if it was the regular practice of that business activity to make and to keep . . ., all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances indicate lack of trustworthiness.

A. How to get business record in? Have to meet the following:

1. Record made at or near the time of the act, event, condition, etc...

2. Made by a person with personal knowledge of the thing or transmitted to the recorder by a person with personal knowledge of the thing;

3. Recorded in the regular course of business (the business itself);

4. Regular business activity to record or make such record (the industry); and

5. Witness is record custodian or “other qualified witness”.

B. For this Article, business means any calling whether for profit or not.

C. An office letter is not a business record unless it meets one of the requirements in the definition of a business record.

D. What is a “other qualified witness”? Someone who can testify to the process.

E. This Article has its own 403 test - “unless source of information or the method or circumstances indicate lack of trustworthiness”. Usually comes up with opinions and diagnosis.

F. Hypo’s:

1. Housewife keeps tax records of home things. IRS wants to introduce it as a business record exception. Court would not allow it, but IRS got it in as a personal admission.

2. Casino dealer keeps record of tips in a personal diary. Can IRS bring it in as a business record? Court said yes because industry standard said that the casino dealers had to keep records of tips.

3. Prosecution wants to introduce telephone records of D. A technician vouches for how records kept, but unable to vouch for computer reliability. D says hearsay and prosecution says BRE. Court allows it because technician is testifying only to the process - a “other qualified witness”.

4. Jet for a small corporation crashes and 7 people died except for the pilot. Pilot was required, by regular business practice, to make a report. Pilot later leaves the country and refuses to come back and testify. Company wants to bring in the report as a BRE. 403 test will not allow it because the pilot has vested interest in the outcome because he does want to be blamed and report will be excluded.

5. Psychiatrist called to testify about nursing notes at other hospital hypo!!!

VIII. Art. 803.7: Absence of regularly recorded business activity.

A. If the business record meets the requirements of 803.6 and the business did not make a record of something it normally does - can allow that absence to come in.

B. Can also use it to show that business did not do or receive something.

IX. Art. 803.8: Public records exception.

A. Art. 803.8a: Records, reports, statements, or data compilations, in any form, of a public office or agency setting forth: (these can be allowed under the exception.)

1. (i) Regularly kept records and recordings of its activities.

2. (ii) Matters required to be reported and recorded as a duty imposed by law.

a. The person in the first 2 has to have personal knowledge and be a part of that organization.

3. (iii) Evaluative/Investigative reports.

a. Has to have a duty to report; and

b. Can include conclusions and/or inferences made from fact.

1) Does not require personal knowledge and can be based upon statements from other people that do not have an obligation to the industry/organization.

2) Examples are FAA, CDC, etc...

3) Not legal inferences, e.g., person was negligent. If using legal terms like negligent, fault, etc... this is a legal inference.

B. Art. 803.8b: Excluded from the public records exception. (Cannot bring these in and cannot use BRE to try and bring them in.)

1. (i) Investigative reports by police or law enforcement personnel. General reports do not fall in this category, but special reports do.

a. General report is something like an accident report or something reported as a duty by law.

b. Special report is an investigation about a particular crime and a particular person.

c. If writing a report based upon an investigation for the purpose of prosecuting someone - that is a investigative/special report. Cannot be admitted.

d. Have to know if the report is being prepared for a policy reason or a prosecution reason.

2. (ii) Report prepared for or by the public agency to be offered by that agency in a case in which it is a party.

3. (iii) Factual findings offered by the prosecution in a criminal case.

4. (iv) Factual findings from an investigation into the complaint, case, or incident, in which the facts and circumstances on which the present proceeding is based or a similar occurrence or occurrences.

HEARSAY EXCEPTIONS UNDER 804

(Not excluded by the hearsay rule if the declarant is unavailable as a witness)

I. Art. 804A: Definition of unavailability: A declarant is “unavailable as a witness” when the declarant cannot or will not appear in court and testify to the substance of his statement made outside of court. This includes situations in which the declarant:

A. Exempted by ruling of court on grounds of privilege;

B. Persists in refusing to testify despite an order of the court to do so;

C. Testifies to the lack of memory of the subject matter of his statement;

D. Unable to be present or to testify at the hearing because of death or then existing physical or mental illness, infirmity, or other sufficient cause; or

E. Absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means.

1. A declarant is not unavailable as a witness if his exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of his statement for the purpose of preventing the witness from attending or testifying.

II. Art. 804B1: Former testimony for criminal cases and civil cases. In this Article there are two different rules. Expert witness testimony is the form of opinions or inferences is not admissible under this exception.

A. For criminal - there are 3 requirements that have to be met (get this in by introducing certified transcript of the prior criminal hearing):

1. Has to be testimony against the D in the present and past hearing;

2. Witness subject to direct, cross, or redirect; and

3. D had opportunity to develop and similar motive to develop.

B. For civil - there are 3 requirements, but some difference:

1. Former testimony

2. Declarant unavailable

3. Party in present suit must have had opportunity to develop and similar interest to develop that the party in the previous suit did.

C. The difference between the criminal and civil requirements is that for the civil the D does not have to have been a party in the prior hearing, but must have the similar motive as in the previous hearing.

D. The focal point will be “had similar motive to develop”. Very important to analyze this to see if will pass 403 test.

E. Hypo: (from problems book on page 148) Dave sues Jack and Jack testifies that he was speeding and was in the course and scope of employment. Later Ted sues Jack and also the Pie Company. Jack dies after the first trial. Ted wants to introduce Jack’s testimony at his trial. Can he? Yes, Ted’s interest arose from the same cause of action.

1. What if Jack’s company didn’t provide a lawyer for Jack in the first trial. Can his testimony still be used by Ted? Have to see if the attorney had opportunity to develop for the pie company. Probably let in the testimony about the speeding.

2. What about course and scope of employment? Have to determine if Jack had the similar interest and motive to develop the testimony in the first trial. If Jack was trying to shift the responsibility to the Pie Company then his motive would be contrary to Pie Company’s interest and probably not be let in after doing an 403 test.

III. Art. 804B2: Dying declaration. A statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death.

A. There are 3 requirements that have to be met:

1. Declarant must be conscious (aware of) impending death;

2. Declarant had first hand knowledge of the facts made in his statement; and

3. Statement concerns cause or circumstance of impending death.

B. Can be used in criminal and civil cases. The declarant does not have to be actually dead, just unavailable.

C. A declarant’s statement that he is dying is not enough!!!!!!!! Have to include the circumstances surrounding his impending death.

D. Have to look at the circumstances. Things to look at are:

1. Does the declarant reasonably believe he is dying?

2. Did the declarant see what happened or who did it or can it be reasonably believed that he saw the actions?

3. Is it the declarant that the D is being tried for or for another person that died? It has to be the declarant that the D is being tried for.

4. If not the declarant that the D is being tried for it might get in under the Excited Utterance exception.

5. Hypos:

a. Person lying in a pool of blood and minister brought to give last rites. Declarant can be reasonably believed when he states he is dying.

b. Person jogging and hit in the back of the head by a mugger. Mugger gets wallet and goes through it and only takes some phone numbers. Person makes statement that Jim is the mugger because Jim wanted the phone number of a girl. Is this admissible as a dying declaration if Person thought he was dying? No, Person never saw who hit him and he thinks it was Jim. Would have to have actually seen Jim hit him.

c. The AIDS problem (9-8) in workbook. Not a dying declaration because she did not think that she was dying from the pills and no indication that she was imminently dying.

IV. Art. 804B3: Statement against interest. Statement which was made at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

A. Requirements for this to be used:

1. Declarant is unavailable and not a party;

2. Statement has to be made at the time and not when it is offered;

3. Against declarant’s interest; and

4. Reasonable person would not have made the statement unless he believed it was true.

B. The key factor to look at is whether a reasonable man in his position would not have made the statement unless he believed it to be true. This is the determining factor when doing the 403 test to see if admissible or not.

C. Two types of statements:

1. Exculpatory: to free from blame or accusation.

2. Inculpatory: to accuse or implicate oneself or another in a crime or other wrongdoing.

D. Exculpatory statement

1. Have to have other corroborating evidence to substaniate the claim made when said by the declarant. If no other corroborating evidence a 403 test will probably keep it out.

2. Example: guy is on death row and later says he did other murders for which someone else is accused. Have to see if there is any corroborating evidence to back up his claim that he did the murders and not the other people.

E. Inculpatory statement

1. Have to look at the circumstances in which the declarant made the statement and the relationship between the declarant and the person made against.

2. Example: guy in jail says “yeah, the warden was with me when I did it.” Did guy cut a deal? Why is he making the statement? Can it be admissible after doing a 403 test?

V. Art. 804B6: Omnibus clause (or residual exception). ONLY IN CIVIL CASES!!!

A. Allows a statement to be admitted, even though hearsay, that is not specifically covered by another exception of the LCE. It has to be necessary and trustworthy to the proceeding in order to be admissible.

B. Requirements that have to be met:

1. Declarant unavailable;

2. Proponent of the statement has made every effort to adduce all other admissible evidence to establish the fact to which the proffered statement relates; and

3. Proponent of the statement must given adequate notice to the adverse party of his intention to offer the statement and the particulars of it.

C. The hearsay evidence must be reliable and trustworthy evidence and the court must find that the evidence is necessary for a just determination of the proceeding.

PRIVILEGES

I. Generally

A. 4 main Articles:

1. Husband - Wife (Art. 504 and 505)

2. Attorney - Client (Art. 506)

3. Doctor - Patient (Art. 510)

4. Priest - Penitent (Art. 511)

B. Prevents certain evidence from being admitted, but this privilege can be waived.

C. Cannot draw an inference from claiming the privilege. Judges and counsel cannot comment on claiming the privilege.

D. In jury cases, should have a hearing outside the presence of the jury to facilitate the raising of the privilege so the jury is not prejudiced. Upon request, the judge shall instruct the jury about not making a inference on raising the privilege.

II. Art. 502: Waiver of privilege.

A. Art. 502A: Waiver. If a significant part of the privileged matter is opened up the person holding the privilege then all of the privileged material can be brought in.

B. Art 502B: Under compulsion or without opportunity to claim. A person cannot be forced to waive his privilege and it is not waived without the person implicitly or expressly waives it. In situations where there are joint privilege holders, the right of one joint holder is not affected by the other’s waiver. If one fails to claim a privilege, there is no waiver unless the other party implicitly or expressly waives the privilege.

C. Art 503C: Joint holders. Where two or more persons are joint holders of a privilege (attorney-client, husband-wife, etc...), a waiver of the right of one joint holder to claim the privilege does not affect the right of the another joint holder to claim the privilege.

1. Attorney-client: attorney cannot waive the privilege because the client owns the privilege also. Husband-wife: either spouse can claim the privilege and one cannot claim it against the will of the other.

III. Art. 504: Spousal confidential communications privilege.

A. Art 504A: Definition. A communication is “confidential” if it is made privately and is not intended for further disclosure unless such disclosure is privileged itself.

1. Have to look at the setting and circumstances in which the statement was made. If the person intended it to remain confidential - privilege exists.

2. Can an eavesdropper testify to the privileged statement? NO.

B. Art. 504B: Confidential communications privilege. Each spouse has a privilege DURING AND AFTER the marriage to refuse to disclose, and to prevent the other spouse from disclosing, confidential communications with the other spouse while they were husband and wife.

1. Only during and after the marriage. Not before.

2. This is a joint privilege. One cannot waive without the other consenting. Either one can claim the privilege.

3. This privilege extends beyond the marriage. This is the main difference between this Article and Article 505.

C. Art. 504C: Exceptions.

1. In a criminal case in which one spouse is charged with a crime against the person or property of the other spouse or of a child of either.

a) Husband beats wife and makes exculpatory statements during the battery. The statements are necessary to prosecute. Husband cannot invoke the privilege and stop the other spouse from testifying.

2. In a civil case brought by or on behalf of one spouse against the other spouse.

a) Like divorces and such.

3. In commitment or interdiction proceedings as to either spouse.

4. When the communication is offered to protect or vindicate the rights of a minor child of either spouse.

IV. Art. 505: Spousal witness privilege. In a criminal case or in commitment or interdiction proceedings, a witness spouse has a privilege not to testify against the other spouse. This privilege terminates upon the annulment of the marriage, legal separation, or divorce of the spouses.

A. This privilege belongs to the witness spouse and not the accused spouse. It terminates upon the end of the marriage.

B. The defendant spouse cannot invoke this privilege to prevent the witness spouse from testifying if the witness spouse wants to testify.

C. Example: still married and husband on trial for murder. Spouse can claim the privilege to not testify and nothing can be done.

D. There are some exceptions to this rule when it involves cases of physical abuse. In State v. Taylor, the court stated that in a case where the testifying spouse is the victim of the offense charged, and where evidence supports a finding that the victim spouse asserting the privilege is more probably than not acting under fear, threats or coercion, or that the marriage itself is a sham confected for the purpose of making the privilege available, the purpose of the privilege is not served and may, in the court’s discretion, be considered as not applicable.

V. Art. 506: Lawyer-client privilege.

A. Art. 506A: Definitions.

1. Client: A person, including a public officer, corporation, partnership, unincorporated association, or other organization or entity, public or private, to whom professional legal services are rendered by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from the lawyer.

a) Legal services rendered or when seeking out a view point and eventually hires the lawyer.

2. Representative of the client: person having the authority to obtain services or act on advice so obtained, on behalf of the client.

a) Also any other person who makes or receives a confidential communication for the purpose of obtaining legal representation, while acting in the scope of employment for the client.

3. Lawyer: a person who holds himself out to be an attorney.

4. Representative of lawyer: office staff and people hired by attorney to assist him in rendering legal services.

5. Confidential communication: not intended to be disclosed, reasonably necessary for the transmission of the communication, and when special circumstances warrant, those who are present at the behest of the client and are reasonably necessary to facilitate the communication.

a) Mom goes in with son to get legal advice. He always brings his mother with him when doing business like this and she is always involved. Cannot compel her to testify. She can invoke the privilege. But, if she is just there and not for any other reason, then can compel her to testify.

B. Art. 506C: Exceptions. There is no privilege under this Article as to a communication:

1. If the services where sought or obtained to enable or aid anyone to commit or plan to commit what the client or his representative knew or reasonably knew should have known to be a crime or fraud.

a) Ex: guy playing golf with attorney and knows IRS is coming after him and he asks attorney about legal stuff - done under fraudulent purposes and cannot invoke the privilege.

2. Made in furtherance of a crime or fraud.

3. If a client sues a lawyer - only the info needed to defend the lawyer can be used.

4. Concerning the identity of the lawyer’s client or his representative, unless disclosure of the identity by the lawyer or his representative would reveal either the reason for which legal services were sought or a communication which is otherwise privileged under this Article.

a) Mobster hires Hitman to kill someone. Mobster then hires and pays Attorney to represent Hitman. Prosecution wants to prove that Mobster was involved by showing that he hired Attorney for Hitman. Is it privileged? Court said yes because revealing the identity of the Mobster revealed the reason for legal services.

C. Hypo: client brings in a gun used in a crime and gives it to the lawyer. DA wants lawyer to reveal any information that he has concerning the gun. Can the attorney invoke the privilege? No, if the gun is discoverable, it is not privileged. Anything discoverable is not privileged!!!!

D. The privilege can be claimed by the client, his rep, agent, or successor.

E. What about the attorney observation when the client is just walking into his office? Not privileged. If the observations were made in connection with communication - privileged.

VI. Art. 510: Doctor-patient privilege. See code. Some exceptions.

Art. 511: Priest-penitent. See code. Pretty much like the husband-wife rule - cannot disclose without waiver of both. No exceptions.

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download