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Evidence MEGATHREAD

Presentation of Evidence
A non-expert "lay witness" trying to bring evidence in must have personal
knowledge "rationally related to their own perception" aka first hand knowledge.

An expert witness must have specialized knowledge within their field of

expertise. They must be qualified (do not need formal education), using
reliable information and methods to base their opinion on, and they must have
applied these principals reasonably to give the judge and jury relevant
information.

They can testify based on:

(1) personal knowledge,

(2) things they have learned at the trial, and
(3) facts outside the record if it would be REASONABLE for them in their field to
rely on those facts.

 The judge has huge leeway in determining if you're qualified to be an expert.

 Experts can base testimony on hearsay when it's reasonably customary to
rely on information like that in their field. They don't have to reveal exactly
what information they relied upon on direct but they do on cross.

MBE POWER TIP: Experts CANNOT, I repeat CANNOT give an opinion

about a criminal defendant's state of mind if that mental state is a relevant
element or defense, like insanity or malice in a murder case. They can,
however, give an opinion on the ultimate issue (like whether or not the defendant
shot the person)

MBE Tip: When expert witnesses use these enormous "learned treatises" to help
them explain something, just remember the treatises cannot go back to the jury
room. The judge does not want the jury sitting there with an enormous fucking
book by Posner or some Stephen Hawking shit and have them listening to Alan
Watts lectures and shit back there. They want them discussing the case.
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Two scenarios the MBE likes:

The MBE likes this scenario where a drug user says "yea that was cocaine,
cocaine gets you high as fuck, and I tried that stuff and knew what it was." Then
they try to get you to think you need to be some chemist to testify about this. No.
His first-hand knowledge of the fact that he thinks it is cocaine is allowable since it
is rationally based off his perceptions. Lay witnesses can testify to the speed they
thought a car was going too and don't need specialized knowledge for that.

The MBE also likes to test a scenario where a stockbroker will say "yea well... the
market was surely going to go up because during the 2008 crash..." No. He is not
an expert, even though they may make him look like one. He has to be an
EXPERT
IN TRADING STOCKS, not a weird guy on WallStreetBets with a RobinHood
account.

Objections must be timely (at the EARLIEST time possible) and state the actual
GROUNDs for objecting. You can only object to evidence rulings if they affect
substantial rights.

MBE TIP: If a ruling by the judge EXCLUDED evidence, you must inform the
court of the evidence's substance by an offer of proof.

A quick note on objections which are sometimes tested: Leading questions are
okay on cross (and on direct to develop basic information) and when your witness
becomes hostile or adverse to your cause you can lead him. You can't ask
compound, confusing, badgering, argumentative, or speculative questions and you
cannot ask questions which assume facts not in evidence.

Judicial Notice - The court may take judicial notice of facts beyond reasonable
dispute at any time. A party can request a hearing to challenge these decisions. In
a criminal case the jury can still disagree so these will never be conclusive in a
criminal case. The whole point of this rule is that criminal cases are so serious
we can never just conclusively tell the jury to believe anything in them. In civil
cases, the judicially noticed fact MUST be accepted as conclusive. MBE Trick:
The judge will try to say something like "I talked with the clerk Ms. Walterson, let
it be known that this is where the property was located." ... No. Ms. Waltersons
info is not "beyond reasonable dispute." She is not an Almanac or some shit.
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ANYTHING, even a PICTURE OF A STOAT WEASEL ON A

TRAMPOLINE may be used to refresh the Witness recollection. If the
question says "can they use this to refresh their recollection"... the answer is YES.
They could bring an actual live Goat or THE LAWYER'S NOTES and show it to
the person, and that would be enough. So long as they don't read directly from a
sheet of paper.

Judge controls order witnesses testify in and order of evidence. Judge can exclude
witnesses if they are fucking shit up (remember Darrell Brooks the Waukesha
dude? he was excluded from his own trial), but they can't exclude: a person who
is essential to the presentation of a party's claim, a person who is statutorily
allowed to be there, and a party or employee of a party. Judge can exclude
witnesses from LISTENING to other witnesses (because then they will TAILOR
their testimony so they can tow the party line). Judge's obviously can't testify at a
trial they preside in but they can question witnesses.
Can't exclude parties if they are

EssentialParties (or their agent)iStatute protects themode (maybe I forced this

mnemonic a little bit but roll with it)

Mandatory presumptions are not allowed in criminal cases. That means that "if
you establish a fact, then another fact will be true with NO counter-proof allowed."
i.e. If I show you a bunny, you must find the bunny is cute, and you can't offer any
evidence it isn't cute. Remember, the prosecution must always prove every
element of a crime beyond a reasonable doubt.

Scenario to watch out for: Do NOT let them trick you on the MBE and try to
take an element away from the jury in a criminal case by saying "the crime has
two elements: A and B. the judge is giving a jury instruction that if A is proven the
jury must then find B. NO. This is your face when they try to trick you with this on
Wednesday. THE JURY MUST FIND "A" AND "B" SEPARATELY and the
prosecutor MUST PROVE A and B separately.

Duty to Preserve Evidence: Potential litigants must reasonably preserve

potentially relevant evidence if a lawsuit is reasonably anticipated - not just
possible but PROBABLE. (They test on this in the MEE, and you have to analyze
at exactly what time litigation became probable).
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Authentication
You must authenticate almost all items of evidence, aka produce enough evidence
to show they are what you say they are. You can authenticate an item simply by
asking a witness "do you recognize this item? What is it? How do you know what
it is?" You can also authenticate it by an expert opinion and JURY

COMPARISON. MBE Hint: They love to test on "jury comparison." You hold
up two handwriting samples in front of the jury - the piece of evidence and the real
authenticated sample. This is allowed.

The MBE loves to test on handwriting. The rule is that experts CAN authenticate
handwriting, but so can lay witnesses as well if they have NON-LITIGATION
related familiarity with the writing (they had seen it before the trial & trial prep)
Some items of evidence are self-authenticating such as: newspapers, notarized
documents, certified public records, etc.

Phone Calls: An incoming telephone call in which the caller identifies himself as
someone is insufficient to authenticate that person is who they say they are. You
need additional info like recognition of the voice. However, with an outgoing
telephone call, it is enough to show that you called the right number and they
picked up and identified themselves and the surrounding circumstances prove it
was reliable.

Note on Photographs and X-Rays: Photographs can be authenticated by the

photographer, someone who was there when pic was took, or simply SOMEONE
FAMILIAR WITH THE AREA. They will be like "Mr. Goat, is this a fair and
accurate representation of the field you lived in in Sweden for two summers? Yes."
That works. For X-Rays you need to show that "the process was accurate,
machine was working, operator was qualified." Someone can't just look at an
X-Ray and be like "yea that kind of looks like the thoracic artery, this is legit" lol.

Demonstrative evidence: Think graphs, models, drawings created for the purpose
of trial. They must be reasonably fair and accurate.

Best Evidence Rule: You don't need an original anytime you use an accurate copy
which fairly portray's what it is and there's no question about the original's
authenticity.
You don't need the originals when ABC applies:
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Acknowledged by the other side that it is legit, Blameless if the originals are lost
or destroyed through no bad faith on your own, or if you are using Correct copies.

Summaries and Completeness: If you have a shitload of material the court will
let you enter in "summaries" which shorten it up. If you introduce one part of a
piece of evidence the other side can demand that you introduce the rest to satisfy
the "rule of completeness."

How to Stay Relevant

A fact is relevant if it has probative value - meaning it affects the probability of
a material fact. It only has to move the needle SLIGHTLY on a material fact to be
relevant.

Remember, the Federal Rules of Evidence do NOT apply in preliminary hearings,

contempt, grand jury, extradition, warrant, sentencing, probation and bail contexts
so evidence does not have to be relevant all the time in these situations.

We can exclude relevant evidence when the 403 DANGERS (unfair prejudice,
misleading the jury, wasting time, needlessly cumulative) substantially
outweigh the probative value of the evidence. Note: the MBE often tries to include
"unfair surprise" as an answer choice... this is not a reason to exclude evidence.

What does it mean to be "unfairly prejudicial"? Some MBE questions talk about
how the plaintiff wants to include grizzly or sensational photos of injuries aka
gruesome evidence to get the old ladies in the jury box crying.

Courts will not allow this type of evidence if it is

(1) unnecessary, and

(2) might cause the jury to improperly sympathize or dislike a party.

MBE Tip: If the OTHER side is saying your injuries are not bad enough to get
money... the court WILL allow you to bring in those gruesome photos most likely
to show them REALLY how bad it was since they tried to step to you.

MEE Tip: For any piece of evidence you can put a brief, one sentence summary
of whether it is relevant or not in your MEE answer. Just say "evidence is relevant
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if it has any tendency to make a material fact more or less likely." Then 1 sentence
on whether this piece of evidence is relevant. You can pick up points this way.

Character Evidence - The Motherload of Points

Evidence of character is not generally admissible to prove a persons general nature
or disposition aka propensity for particular conduct. can't say "you're a bad
person who did bad things in the past, and therefore you did this bad thing."
Always start character evidence MEE's out with a sentence about propensity.

Evidence of prior crimes OR OTHER ACTS is admissible for non-character

purposes though, to show:

MotiveOpportunityIntentPreparationPlanKnowledgeIdentityModus
Operandi (for example, if someone wore a Garfield mask when they attacked
someone else, you can bring in evidence that this sicko ALWAYS wears a Garfield
mask when he commits his attacks).
There are a few exceptions to the propensity rule:

Criminal defendants can offer propensity about themselves (I'm a good

person). Once you gas yourself up, the prosecution can rebut with evidence you are
a bad person. The defendant can always just get up there and say "fuck everyone
here, I'm the shit." But once they open the door... THEN prosecution can be like
"you're a little bitch."

Criminal defendants can offer propensity evidence about alleged victims:

Except in cases involving rape, a defendant can offer evidence about the victim's
character to prove his own innocence. (aka Mary was violent). Prosecutors can
then rebut and offer evidence about the defendant's similar propensities. (You are
violent) OR the victims good character for the same trait (Mary is peaceful!)

Criminal defendants cannot offer evidence of a victim's sexual propensities

but they can point to specific instances of a victim's sexual behavior in a criminal
case to prove consent or an ongoing relationship or to prove other sources of
semen or to protect their constitutional rights.
In a civil case, you can admit evidence offered to prove a victims sexual behavior
or predisposition if its probative value substantially outweighs the danger of

(1) harm to any victim, and

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(2) unfair prejudice to a party.

The court can ONLY admit evidence of a victims reputation if the victim PLACES
it in controversy.

Example: A girl in one MEE said she was a virgin and everyone knew she was a
virgin and she would never consent to having sex with the defendant. The judge
then let the defendant prove that she had a 17,000,000,000 snap score because she
placed her chastity in controversy and "his constitutional rights would be impaired"
if he wasn't allowed to defend against her "purity confession."

In a Homicide case, the prosecutor may offer evidence of a dead person's

peaceful propensities, but only WHEN THE DEFENDANT alleges the dead
person was the first aggressor.

The final exception is that character evidence can be offered to show witness
untruthfulness. Evidence of a witness's truthful character is only allowed after
they are attacked.

How do we prove character?

Normally, you can really only prove character by general reputation or opinion
testimony - NOT by pointing to specific conduct.

EXCEPT IN TWO SCENARIOS:

1 Witness untruthfulness on cross.

Do not fuck this one up. You can give the witness a "shots fired' question on cross to
show the jury they are on some bullshit... but you can't prove it up with documents or
calling up other witnesses because then you'd be having a MINI-TRIAL within a trial.
If the witness is talking shit, you can ask "isn't it true you lied on your law school
application?" If they say NO, you cannot then say "okay I'm calling up Dean
Walterson from the school to give 4 hours of testimony about your lying ass."
Then the WHOLE TRIAL would be derailed. Oftentimes the witness will get up there
and start talking shit about how peaceful their friend Johnny is and the prosecutor will
say "isn't it true you saw Johnny beat up his girlfriend and filed a police report on him
two years ago?" (the question has to have a good faith basis though)

2 In civil cases where character is an essential element of the crime (defamation,

negligent hiring or entrustment, and child custody) you can bring in prior
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crimes or acts. For example, in a child custody case you need to bring in
everything the parents did before to show they are a bad parent and unfit.

Habit evidence can be introduced if the person essentially does the same thing
every time in an "automatic" fashion and it is NOT BASED ON MORALS. Be
careful on this. You can't say a defendant gets fucked up every day after work
(even if he does), but you can show that he goes to the bar every day after work.
You can't say a defendant is lazy or distracted (that's propensity), but you can
prove he always checks his phone when driving at 2:03PM. You get the picture.
So to break it down, on EVERY character evidence question you must: Do your
little propensity rule. Then figure out whether we are in a sex case, homicide, or
civil case. Then figure out what party is offering the evidence. Then all you have to
do is analyze the way they tried to offer it and see if it's proper (easier said than
done... but still not so bad).

Impeachment
We can impeach in about 7 different scenarios

1 Bias: This one is a slam dunk on the test guys. A witness's bias, interest, motive,
or corruption is ALWAYS RELEVANT AND ALWAYS CAN COME IN.
If he has money involved, a family member, a financial stake, you can ask
about it. Free points. Note: You can use religion to show bias or interest but
NOT to show honesty.

2 Ability to observe, remember, relate accurately. Deaf, blind, drunk, glasses,

Alzheimers, you get it.

3. Cross examination on specific instances of conduct (but we CAN'T go into

specifics with extrinsic evidence otherwise we'd create a trial within a trial, we
talked about this earlier).

4. Hearsay Declarants: When a hearsay statement has been brought into evidence,
the declarant's credibility may be attacked BY ANY EVIDENCE THAT
WOULD BE ADMISSIBLE IF THE DECLARANT HAD TESTIFIED AS A
WITNESS. We don't want people getting attacked by "ghost witnesses" so if
someone brings in a bullshit hearsay statement through an exception someone else
can attack it even if the person isn't there.
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5. Prior inconsistent statements: Out-of-court inconsistent statements are not

hearsay because you're not bringing it in to prove the truth of anything you're
bringing it in to show the person changed their story. Witness must be given
opportunity to explain or deny the prior inconsistent statement unless: they are
a hearsay declarant or if the prior inconsistent statement is coming in under a
hearsay exception or if the court finds the interests of justice would be served by
allowing them to explain. Note: Remember that prior inconsistent statements by a
party may be received into evidence to impeach the party AND substantively.

6. Character for truthfulness: A witness's credibility can be attacked or

supported by reputation testimony about the witness's character for truthfulness
or untruthfulness in the community or opinion evidence of their character.
Evidence about the witness's TRUTHFUL character is only admissible after their
truthfulness has been attacked.

MBE Tip: Watch out for some trick questions where the person isn't even aware of
the person's reputation i.e. I heard from a friend of a friend Johnny is a bad
guy. Not allowed. "Community" is defined as the group of people that are in
proximity to where the defendant lives and works, etc.

7. Prior Convictions: These are normally admissible for impeachment, even if the
person is appealing them, if the conviction requires AN ELEMENT OF
DISHONESTY or THE CONVICTIONS WERE FELONIES. There are
different rules for when defendant is a witness and when defendant is not a
witness. This graph explains it pretty well:

Hearsay
Out of court assertions offered to prove the truth of the matter asserted. Assertions
are usually oral or written, but non-verbal conduct counts if it is intended as an
assertion (a lot of times they will test on a "thumbs up" and that is an assertion
usually meant to mean "yes.") Assertions must be MADE by a human.
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MBE Tip: Crying is not an assertion. You can't really tell if the person is crying
out of joy or sadness so it can't be readily distilled into an assertion that makes
sense. Assertions cannot be made by a computer, graph, animal, or even my best
friend ChatGPT.

Multiple-Hearsay and Non-Hearsay

When evidence contains hearsay within hearsay, every statement must have an
exception for it to be admissible.

Hint: They will almost ALWAYS test this in the form of a document. Think of
a police report for example. You have the first layer of what the officer wrote
down, then you have the second layer of what the witness is actually SAYING.
Must have an exception for BOTH.

Everything falls into two categories:

Non-hearsay or a hearsay EXCEPTION (aka it is actually hearsay but we have an
exception). We'll talk non-hearsay first.

When is something... not hearsay?

We have these non-hearsay exceptions when things are not used to prove the truth
of the matter asserted. But what is the truth of the matter asserted? The easiest
way to understand this is with the funniest and most widely used example of non-
hearsay in the criminal court: "effect on listener." People try to use this one to
backdoor the other side day in and day out. My professor had me watch his trial
and he tried to use this hearsay life hack about 347 times in a row.
Jimmy is being accused of selling drugs. His friend Mariam gets up there to testify
against him. The lawyer asks "Mariam... why did you run away?" and she says
"Because I got scared when he told me he sold drugs, so I ran." Jimmy's lawyer
jumps up: HEARSAY - THIS IS AN OUT OF COURT STATEMENT OFFERED
TO PROVE THAT MY CLIENT IS A DRUG DEALER! THIS IS RIDICULOUS.
But why was that statement actually brought in? To show that Jimmy's words
had an "effect" on Mariam (made her scared) and that is why she ran. Therefore it
wasn't brought in to prove he was a drug dealer (the truth of the matter asserted).
The reason people abuse this so much is that anything anyone says could
arguably have an "effect" on any listener lol. I hope that made some semblance
of sense.
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Opposing party statements: Any goddamn thing an opposing party says at any
time is an opposing party admission and gets in so long as it is relevant. Even
"adoptive" admissions are allowed where a party agrees with someone else or is
SILENT when they should have said something. Vicarious admissions by your
employees are allowed as well so long as they are at work at the time and in the
course of their official work duties. And don't forget co-conspirator admissions -
anything a co-conspirator says can be brought in against anyone else in the
conspiracy.

Words of independent legal significance are non-hearsay. These are things such
as contract words, "I do" for marriage, giving someone a bribe.

State of Mind: If someone says "I am the Demiurge, and I have you all trapped
inside of a prison planet until you gain spiritual gnosis" that can get in to show they
are insane or just wildly into Gnosticism.
The court needs to make sure your state of mind isn't like this

Three types of prior statements of trial witnesses are non-hearsay (IF THE
DECLARANT IS TESTIFYING AT TRIAL):

Prior inconsistent statement under oath: Okay so I went to this huge federal
criminal trial of a guy who ran a Ponzi scheme. He was CIVILLY deposed four
years earlier by the people that he took the money from. When he got on the stand
they just HAMMERED HIM, again, and again, and again with his civil deposition.
Why could they bring this in during the criminal trial? It is non-hearsay and can
be brought in substantively because he is now testifying at trial #2, it was made
under oath at a prior hearing (DEPOSITION BEFORE) at which he had a full
opportunity to defend himself. Remember this one, they love it on the MBE and
remember how it is different from a prior inconsistent statement which does NOT
need to be under oath.

Prior consistent statements - are non-hearsay when brought in to rebut a charge

of fabrication or improper motive.

Prior Statement of ID: Prior statements of a witness PREVIOUSLY identifying

someone, even if the witness can no longer remember the prior perception are non-
hearsay. ("I don't remember him drugging me, but I remember telling my friend it
was Marcus"
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Hearsay
The bar primarily focuses on a few types of hearsay exceptions:

Present Sense Impression: Statement must describe the event exactly as it is

happening.

Excited Utterance: Made while still under the stress of the excited event. Every
MBE the quote itself will actually include an exclamation mark haha. It's like when
the police discover some kid who has been hiding in a car after his dad got shot
and he says to the police when they find him "jimmy killed my dad!" Excitement
can last for hours and can be WAY LONGER than present sense impression which
must happen contemporaneously.

Business Record: Record was made and kept pursuant to regularly conducted
business activities, timely made by employee or custodian with personal
knowledge, and the other side doesn't cast doubt on it. (MBE loves to test
scenarios where the store manager will try to offer some bullshit slip and fall
employee report which says there was no water on the ground at the time...
basically a report that he clearly made up. Other side can cast doubt on that and it
won't get in). Also no private office memo's allowed.

MBE Trick: Police reports are ONLY business records in civil, not criminal
cases.

Medical Diagnosis: Made to medical personal concerning past or present

symptoms for treatment or diagnosis (you can't say... Jimmy negligently hit me
with his truck and now I need treatment... but you could say you were hit by a
truck.) Can also be made to nurses and non-physicians.

Present State of mind/physical sensation: "I hate you", "I believe I am the King",
"my knee hurts." No backward looking statements "I believe Bill may have tricked
me."

Dying declaration: The person must be UNAVAILABLE for this to apply. The
person has to believe they are about to die but does not need to actually die.
Admissible in homicide or civil cases ONLY. Statement can ONLY be about their
cause of death. MBE will try to trick you and have the person bring up some other
petty shit like someone owing them money lol OR the MBE will try to trick you
and bring this in within a NON-HOMICIDE gun case or something. Stay vigilant
my young friends, the NCBE seeks to destroy us at every turn.
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Statement Against Interest: Statements against someone's civil, criminal, or

financial interest. The person saying it must be UNAVAILABLE at trial. They
must also have had firsthand knowledge of what they are saying and a reasonable
person in their shoes would only have said it if they believed it to be true. i.e. ("I
owe Jimmy $100,000 and didn't pay him back).

MBE Tip: But if it's within a criminal case and offered as evidence to conclusively
prove your innocence, there needs to be other evidence which indicates its
reliability. Otherwise you could just say "well... Bill isn't here... but yea I mean he
did say I did not kill Mark and he also said Carol did it... but he's not here to back
me up"

MBE Trick: Yes, they will try to trick you on the difference between this and
party admissions. Party admissions always need to be made by a party whereas
statements against interest can be made by ANYONE and don't have to be against
anyone's interest.

Public Records: Activities of a public officer or agency observed pursuant to their

duty to report about them. Could be like a fire Marshall investigation, plane crash,
etc.

Past Recollection Recorded: Witness once remembered it but can't now. Gotta
show witness FAILS to remember, remembered it in the past, writing was made or
adopted by witness (so a third person could have written it), and was made when it
was FRESH in the witness' mind. They will try to trick you on the difference
between this and refreshed recollection. Writing is normally read into evidence
for past recollection recorded, and it is not read into evidence for refreshed
recollection. Past recollection recorded is a hearsay exception where refreshed
recollection is non-hearsay. This writing needs to satisfy the best evidence rule,
refreshed recollections don't. This writing has to be ACCURATE, refreshed
recollection writings do not.

These are the main ones, there are many other small ones like absence of entry in
business records, ancient documents, absence of public records, family records,
etc. These are all pretty self-explanatory.

Evidence Excluded Based on Policy

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Subsequent remedial measures are basically when someone fixes something after
the fact that caused an injury, and then the plaintiff tries to bring in the fix to prove
the person knows it was negligent in the first place (could be fixing something
physical like stairs or a company policy). The law does not like this because THEY
WANT PEOPLE TO FIX SHIT SO OTHER PEOPLE DON'T GET INJURED.

I was watching a slip-and-fall trial when I worked at the civil court and the
plaintiff's lawyer asked the owner of the church where the fall took place "didn't
you fix the stairs after the fall? So you knew they were messed up?" The
defendant's lawyer called a side-bar and went nuts and said "That's a subsequent
remedial measure! Didn't you LEARN that in Law school?" (little did this
lawyer realize we learned absolutely none of this shit in law school).

MBE Trick: You CAN bring in subsequent remedial measures for impeachment (if
someone says the stairs didn't need to be fixed for example) and to show
ownership (because if someone is claiming they didn't own it... why did they fix it
lol).

Compromises/Settlement Offers & Negotiations: Not admissible to show fault,

damages or liability.
Two requirements needed that the MBE tests on:
there must be a claim (this does NOT HAVE TO BE THE FILING OF A
LAWSUIT!!!), and there must be a DISPUTE AS TO LIABILITY OR
AMOUNT. If I crash into your car and say "it's completely my fault, I'll pay for
everything" there is no dispute!! be careful.

Offers to pay medical expenses: Not admissible to prove culpability (courts want
people to help other people out) but the MBE tests on this scenario of LIMITED

FACTUAL ADMISSIONS ALONGSIDE AN OFFER. (I'm so sorry I shot

you Karen... please let me pay for your medical bills)... THE PART ABOUT
THE SHOOTING IS ADMISSIBLE. The MBE will also trick you because these
do NOT have to be part of a disputed claim, so remember that too.

Plea Negotiations: Statements made during plea, no contest pleas, and later
withdrawn guilty pleas are not admissible later on.
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Privileges
Remember up top that they sometimes test accidental waiver of privilege on the
MBE. If you send the opposing side some top secret shit and then don't take
reasonable steps to prevent or fix the fuck-up, it will likely waive the disclosure.

Spousal Immunity: Two types - confidential communications aka PILLOW

TALK for all the sweet darlings out there, and Testimonial Privilege aka you are
about to be taken down in court.

Confidential Communications: The law is all about protecting the sanctity of

marriage, so you can refuse to testify about private communications that took place
during your marriage, even if you're no longer married. In both civil and criminal
cases. Except in a few serious exceptions: domestic abuse, child abuse, spousal
conspiracy between two spouses, and competency proceedings. T

RICK: You cannot refuse to testify on this basis about things you SAW. If you
saw your spouse come in with 500 machine guns... that is not a confidential
communication.

Testimonial Privilege: You can refuse to testify against your spouse, even about
pre-marital matters USUALLY. But if it's a CRIMINAL case, you still need to be
married to have this privilege. And depending on the charges or the victim, you
may not be able to refuse, like when charges involve child abuse, human
trafficking, prostitution, or the victims are you, your child or your spouse's child.
ONLY THE WOULD-BE WITNESS CAN INVOKE THIS, you can never prevent
a spouse from testifying you abuser.

Attorney-Client Privilege and Work Product Protections

Attorney client communications are not discoverable, even after the relationship
ends or the client dies. However, there are exceptions.

MBE Trick Alert: They love to have someone say something in front of a THIRD
party and the attorney. If a third party is there, there is no attorney-client privilege.

Trick 2: The communication has to be made regarding legal things. You can't ask
the attorney for illegal advice and be shielded. It also does not apply when there is
litigation between the client and the attorney regarding malpractice or something,
then all bets are off. This guy Stephen McDaniels in this famous case murdered a
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girl then put his OWN trial lawyer on the stand and destroyed his attorney client
privilege during an appellate hearing. The lawyer was then allowed to talk for
about 57 minutes about all the wild shit Stephen had told him in confidence about
the murder.

Work Product: This protects all materials prepared by an attorney in anticipation

of or in preparation of litigation. There is a substantial need exception where
work product is discoverable if it contains relevant facts that are otherwise
unprivileged and cannot be discovered any other way without undue hardship. Like
if a witness dies and you need the deposition transcript or something.
REMEMBER: NEED + HARDSHIP. Can never get mental impressions or strategy
material.

Physician Patient Privilege: Most states recognize a physician patient privilege

but FEDERAL COURTS DO NOT! THE MBE TESTS ON THIS. However, in
diversity, state law rules govern privilege anyway. The patient holds the privilege
and only the patient can invoke it. Ever seen that one weirdass MBE question
where the dudes doctor like stands up in the court audience and invokes it for him?

Psychotherapist/Patient Privilege: All states have this, but if you identify a

specific, known, and foreseeable victim that you say you want to hurt - the
psychotherapist has a duty to warn that person.

Sixth Amendment Right to Confrontation

A criminal defendant has a right to confront his accusers. Any out-of-court
statement a prosecutor uses will violate a defendants right to confront if it is

(1) testimonial,
(2) the witness is unavailable, and (
3) the defendant never had a chance to cross the witness before trial.

What does testimonial mean?

The MEE is obsessed with this shit. If the primary purpose of the interrogation is
to respond to an emergency, it is NOT testimonial (like a 911 call). If there's an
active shooter situation and a woman is yelling "JIMMY is down the block, he has
a gun, etc." This can still get in. Just remember IF THERE IS STILL A
POTENTIAL THAT MORE PEOPLE COULD BE HURT... A WITNESS CAN
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TALK SHIT ABOUT YOU TO THE COPS AND NOT SHOW UP TO TRIAL
AND IT WILL STILL GET IN.

If emergency is OVER and everyone is calm and they are talking to the cops about
past events and someone is chilling in a squad car talking shit about you and how
you committed the crime and the officer is writing it down, THAT is testimonial.
Grand jury statements are testimonial, so are affidavits with forensic lab results,
and all non-emergency statements given to police to prove past events.