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California Trial Objections 2018

Prepare for trial and depositions with this essential resource.

Prepare for trial and depositions with this essential resource.

  • Carry the laminated Checklist of Objections in your trial notebook
  • Confidently move to exclude inadmissible hearsay and opinion
  • Get in-depth treatment of all California privileges
  • Stay current on case law interpreting “testimonial statements” under Crawford and Davis
  • Confidently prepare your evidence and your experts for trial
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Prepare for trial and depositions with this essential resource.

  • Carry the laminated Checklist of Objections in your trial notebook
  • Confidently move to exclude inadmissible hearsay and opinion
  • Get in-depth treatment of all California privileges
  • Stay current on case law interpreting “testimonial statements” under Crawford and Davis
  • Confidently prepare your evidence and your experts for trial
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1

Right to Present Relevant Evidence

  • I. INTRODUCTION
    • A. Using This Book to Object and Respond to Objections 1.1
    • B. Organization and Scope of Book 1.2
  • II. "EVIDENCE," "PRESUMPTION," AND "INFERENCE" DEFINED 1.3
  • III. WHAT CONSTITUTES RELEVANT EVIDENCE?
    • A. Civil Cases 1.4
    • B. Criminal Cases 1.5
      • 1. Proposition 8 1.6
      • 2. Proposition 115 1.7
  • IV. APPLICATION OF EVIDENCE CODE
    • A. Civil Cases 1.8
    • B. Criminal Cases 1.9
      • 1. Provisions That Differ in Criminal Trials 1.10
      • 2. Provisions That Do Not Apply in Criminal Trials 1.11
  • V. APPLICATION OF CONSTITUTION AND CASE LAW TO CRIMINAL CASES 1.12
  • VI. CHECKLIST: OBJECTING TO EVIDENCE 1.13

2

Motions in Limine

  • I. HISTORY 2.1
  • II. DEFINITION 2.2
  • III. USES OF MOTION IN LIMINE
    • A. To Exclude Evidence 2.3
    • B. To Seek Limiting Instructions 2.4
    • C. To Prevent Undue Prejudice 2.5
    • D. To Prohibit Use of Evidence as Sanction for Abuse of Discovery 2.6
    • E. To Seek Admission of Evidence 2.7
  • IV. BENEFITS AND RISKS OF MAKING MOTION
    • A. Benefits 2.8
    • B. Risks 2.9
    • C. Judge's View 2.10
  • V. PROCEDURES
    • A. Timing of Motion 2.10A
    • B. Format and Notice Requirements
      • 1. Written Motions in Limine 2.11
      • 2. Oral Motions in Limine 2.12
  • VI. IN LIMINE ORDERS
    • A. Preliminary or Conditional Rulings 2.13
    • B. Final Rulings 2.14
  • VII. RENEWING MOTION DURING TRIAL TO PRESERVE GROUND FOR APPEAL
    • A. Reiteration Rule 2.15
    • B. Making a Record 2.16
  • VIII. VIOLATIONS OF IN LIMINE ORDERS 2.17
  • IX. PRESERVING RECORD ON APPEAL 2.18
  • X. FORMS
    • A. Form: Motion in Limine 2.19
    • B. Form: Order in Limine 2.20

3

Order of Proof

  • I. TRIAL COURT'S POWER TO REGULATE 3.1
  • II. USUAL ORDER OF PROCEEDINGS 3.2
    • A. Civil Trials 3.3
    • B. Criminal Trials 3.4
  • III. ORDER OF EXAMINING WITNESS
    • A. Usual Order 3.5
    • B. Conditional Admission of Testimony 3.6
  • IV. ORDER OF DETERMINING ISSUES
    • A. Civil Trials 3.7
    • B. Criminal Trials 3.8
  • V. RULING ON ORDER OF PROOF IS NOT RULING ON ADMISSIBILITY 3.9

4

Objecting to Evidence

  • I. INTRODUCTION
    • A. Importance of Weighing Alternatives 4.1
    • B. Reasons for Objecting 4.2
    • C. Reasons for Not Objecting
      • 1. Danger of Alienating Jury 4.3
      • 2. Danger of Highlighting Harmful Evidence 4.4
      • 3. Negligible Harm Threatened 4.5
      • 4. Reversal on Appeal Unlikely 4.6
      • 5. When Trial Judge's Questions Are Objectionable 4.7
    • D. Waiver; Invited Error 4.8
  • II. ALTERNATIVES TO OBJECTING
    • A. Not Objecting 4.9
    • B. Combining Series of Objections
      • 1. Introduction 4.10
      • 2. Continuing Objections 4.11
      • 3. Adoptive Objections 4.12
      • 4. Summary Objections 4.13
    • C. Impeaching the Witness 4.14
  • III. MAKING THE OBJECTION
    • A. Statutory Requirements 4.15
    • B. Timeliness 4.16
    • C. Form
      • 1. Wording 4.17
      • 2. Specific Ground Essential 4.18
      • 3. General Objection Insufficient 4.19
    • D. Obtaining a Ruling 4.20

5

Responding to Objections

  • I. CHECKLIST OF RESPONSES 5.1
  • II. INVOKING EXCEPTIONS TO EXCLUSIONARY RULES 5.2
  • III. CONDITIONAL ADMISSION OF EVIDENCE 5.3
  • IV. OFFERS OF PROOF
    • A. Nature and Function; Proving Substance, Purpose, and Relevancy 5.4
    • B. When Offer of Proof Is Not Required
      • 1. During Cross-Examination 5.5
      • 2. After Broad Exclusionary Ruling 5.6
      • 3. If Question Contains Necessary Elements 5.7
      • 4. If Necessary Elements Otherwise Apparent 5.8
    • C. Procedure for Offer of Proof
      • 1. Out of Jury's Presence 5.9
      • 2. Substance of Offered Evidence 5.10
      • 3. Purpose of Offered Evidence 5.11
      • 4. Relevancy of Offered Evidence 5.12
      • 5. Availability of Offered Evidence 5.13
    • D. Objections to Offers of Proof 5.14
  • V. RESPONSES
    • A. Counsel's Duty to Seek Other Methods of Proof 5.15
    • B. Rephrasing the Question 5.16
    • C. Presenting Other Proof 5.17

6

Objections to Jury Voir Dire

  • I. SCOPE OF CHAPTER 6.1
  • II. PRE–VOIR DIRE PROCEDURES
    • A. Challenges for Cause to Panel as a Whole
      • 1. When Challenge Is Available 6.2
      • 2. Procedure 6.3
      • 3. Differences Between Civil and Criminal Cases 6.4
    • B. Pre–Voir Dire Conference
      • 1. Civil 6.5
      • 2. Criminal 6.6
    • C. Objections at Pre–Voir Dire Conference 6.7
      • 1. Motions in Limine 6.8
      • 2. Trial Brief 6.9
      • 3. Juror Questionnaire 6.10
  • III. METHODS OF SEATING JURORS FOR QUESTIONING AND CHALLENGING 6.11
    • A. "Jury Box" Method 6.12
    • B. "Six Pack" or "Struck Juror" Method 6.13
  • IV. QUESTIONING BY TRIAL JUDGE AND COUNSEL 6.14
    • A. Civil 6.15
    • B. Criminal 6.16
  • V. CHALLENGES
    • A. Challenges for Cause
      • 1. Grounds for Challenge 6.17
        • a. General Disqualification 6.18
        • b. Implied Bias 6.19
        • c. Actual Bias 6.20
      • 2. Both Court and Counsel May Exercise Challenge 6.21
      • 3. How and When to Exercise Challenge 6.22
      • 4. Trial of Challenge for Cause 6.23
    • B. Peremptory Challenges
      • 1. How and When to Exercise Challenges 6.24
      • 2. Number of Challenges Permitted
        • a. Civil 6.25
        • b. Criminal 6.26
      • 3. Discriminatory Use of Peremptory Challenges: Wheeler-Elem Rule
        • a. Discriminatory Use of Peremptory Challenges Prohibited in Both Civil and Criminal Trials 6.27
        • b. Proving Prima Facie Case 6.28
        • c. Rebutting Prima Facie Case 6.29
        • d. Proof Currently Accepted at Hearing 6.30
        • e. Determination by Court 6.31
        • f. Appellate Review 6.32
  • VI. GROUNDS FOR OBJECTING TO IMPROPER VOIR DIRE QUESTIONS
    • A. Question Attempts to Indoctrinate Jurors on Law
      • 1. Nature of Objection 6.33
      • 2. Stating the Objection 6.34
    • B. Question Based on Incorrect Statement of Law
      • 1. Nature of Objection 6.35
      • 2. Stating the Objection 6.36
    • C. Question Asks Jurors to Prejudge Evidence
      • 1. Nature of Objection 6.37
      • 2. Stating the Objection 6.38
    • D. Question Introduces Prejudicial Matter
      • 1. Nature of Objection 6.39
      • 2. Stating the Objection 6.40
    • E. Question Improper if Not Related to Challenge for Cause (Special Rule for Criminal Cases)
      • 1. Nature of Objection 6.41
      • 2. Stating the Objection 6.42
      • 3. Response to Objection: Connect Question to Basis for Challenge 6.43
    • F. Question Prohibited by Judicial Administrative Standards 6.44
    • G. Question in Improper Form 6.45
  • VII. HOW TO OBJECT TO IMPROPER VOIR DIRE EXAMINATION
    • A. Objection to Examination by Judge 6.46
    • B. Objection to Examination by Counsel; "Speaking Objections" 6.47
    • C. Motion for Mistrial 6.48
  • VIII. WAIVER OF OBJECTION 6.49
  • IX. ISSUES ON APPEAL 6.50
  • X. SELECTED RULES OF COURT AND STATUTES
    • A. Civil
      • 1. California Rules of Court 6.51
      • 2. Code of Civil Procedure 6.52
    • B. Criminal
      • 1. California Rules of Court 6.53
      • 2. Code of Civil Procedure 6.54

7

Question Is Ambiguous or Unintelligible

  • I. DEFINITION 7.1
  • II. DANGERS PRESENTED 7.2
  • III. ANALYSIS 7.3
  • IV. SPEAKING OBJECTIONS 7.4
  • V. STATUTE 7.5
  • VI. STATING THE OBJECTION 7.6

8

Question Is Compound

  • I. DEFINITION 8.1
  • II. DANGERS PRESENTED 8.2
  • III. ILLUSTRATIONS 8.3
  • IV. STATUTE 8.4
  • V. ALTERNATIVES TO OBJECTING 8.5
  • VI. STATING THE OBJECTION 8.6

9

Question Is Too General

  • I. DEFINITION 9.1
  • II. DANGERS PRESENTED 9.2
  • III. ILLUSTRATION 9.3
  • IV. STATUTE 9.4
  • V. STATING THE OBJECTION 9.5

10

Question Calls for Narrative Answer

  • I. DEFINITION 10.1
  • II. DANGERS PRESENTED 10.2
  • III. ILLUSTRATIONS 10.3
  • IV. TRIAL JUDGE'S ROLE 10.4
  • V. STATUTE 10.5
  • VI. STATING THE OBJECTION 10.6

11

Question Has Been Asked and Answered

  • I. DEFINITION 11.1
  • II. DANGERS PRESENTED 11.2
  • III. ANALYSIS 11.3
  • IV. STATUTE 11.4
  • V. ALTERNATIVES TO OBJECTING 11.5
  • VI. STATING THE OBJECTION 11.6

12

Question Misquotes Witness

  • I. DEFINITION 12.1
  • II. ILLUSTRATIONS 12.2
  • III. ADDITIONAL REMEDIES 12.3
  • IV. STATUTE 12.4
  • V. STATING THE OBJECTION 12.5

13

Question Is Leading

  • I. DEFINITION 13.1
  • II. ILLUSTRATIONS
    • A. Leading Questions 13.2
    • B. Questions Not Leading 13.3
  • III. PROPER LEADING QUESTIONS DURING DIRECT OR REDIRECT EXAMINATION
    • A. Introduction 13.4
    • B. To Establish Preliminary Matters 13.5
    • C. To Refresh Recollection 13.6
    • D. To Aid Witnesses Requiring Assistance in Testifying 13.7
    • E. To Question Expert Witnesses 13.8
    • F. To Question Hostile Witnesses 13.9
    • G. To Question Witnesses Who Have Changed Their Stories 13.10
    • H. To Identify Exhibits 13.11
  • IV. IMPROPER LEADING QUESTIONS DURING CROSS- OR RECROSS-EXAMINATION 13.12
  • V. STATUTE 13.13
  • VI. ALTERNATIVES TO OBJECTING 13.14
  • VII. STATING THE OBJECTION 13.15

14

Question Is Argumentative

  • I. DEFINITION 14.1
  • II. ILLUSTRATION 14.2
  • III. STATUTE 14.3
  • IV. STATING THE OBJECTION 14.4

15

Question Assumes Fact in Dispute or Not in Evidence

  • I. DEFINITION 15.1
  • II. DANGERS PRESENTED 15.2
  • III. ANALYSIS
    • A. Direct Examination 15.3
    • B. Cross-Examination 15.4
  • IV. ILLUSTRATIONS 15.5
  • V. CONDITIONAL ADMISSION OF EVIDENCE 15.6
  • VI. ADDITIONAL REMEDIES 15.7
  • VII. STATUTE 15.8
  • VIII. STATING THE OBJECTION 15.9

16

Question Calls for Speculation

  • I. DEFINITION 16.1
  • II. ILLUSTRATIONS 16.2
  • III. ANALYSIS 16.3
    • A. Lay Witnesses: Opinion Testimony Versus Speculation 16.4
    • B. Expert Witnesses: Speculation 16.5
  • IV. STATUTE 16.6
  • V. STATING THE OBJECTION 16.7

17

Irrelevant Evidence

  • I. STATUTORY PROVISIONS 17.1
  • II. RELEVANCY
    • A. Under Evidence Code 17.2
    • B. Admissibility of Evidence to Which Opposing Counsel Offers to Stipulate 17.3
    • C. Relevancy in Criminal Actions 17.4
    • D. Admissibility of Prior Convictions 17.5
    • E. Admissibility of Evidence to Support "Third Party Defense" 17.6
  • III. LAYING FOUNDATION FOR RELEVANCY 17.7
  • IV. "INCOMPETENT, IRRELEVANT, AND IMMATERIAL" 17.8
  • V. FAILURE TO OBJECT TO IRRELEVANT EVIDENCE 17.9
  • VI. ALTERNATIVES TO OBJECTING 17.10
  • VII. STATING THE OBJECTION 17.11

18

Incompetent Witness

  • I. GENERAL DESCRIPTION
    • A. Definition 18.1
    • B. Statutory Grounds 18.2
    • C. Statute 18.3
  • II. ANALYSIS OF STATUTORY GROUNDS
    • A. Inability to Communicate
      • 1. Definition 18.4
      • 2. Ruling on Objection 18.5
      • 3. Statute 18.6
      • 4. Alternatives to Objecting 18.7
      • 5. Stating the Objection 18.8
    • B. Inability to Understand Duty to Tell Truth
      • 1. Definition 18.9
      • 2. Ruling on Objection 18.10
      • 3. Statute 18.11
      • 4. Alternatives to Objecting 18.12
      • 5. Stating the Objection 18.13
    • C. Attorney as Witness
      • 1. Definition 18.14
      • 2. Statute; Rule of Professional Conduct 18.15
      • 3. Stating the Objection 18.16
    • D. Judge as Witness
      • 1. Definition 18.17
      • 2. Statute 18.18
      • 3. Stating the Objection 18.19
    • E. Juror as Witness 18.20
    • F. Lack of Personal Knowledge
      • 1. Definition 18.21
      • 2. Illustrations 18.22
      • 3. Ruling on Objection 18.23
      • 4. Statute 18.24
      • 5. Alternatives to Objecting 18.25
      • 6. Stating the Objection 18.26
    • G. Juror Impeaching Verdict
      • 1. Discussion 18.27
      • 2. Alternatives to Objecting 18.28
      • 3. Stating the Objection 18.29
    • H. Testimony Based on Use of Speedtrap
      • 1. Discussion; Statute 18.30
      • 2. Alternatives to Objecting 18.31
      • 3. Stating the Objection 18.32

19

Hearsay

  • I. DEFINITION 19.1
  • II. HEARSAY RULE 19.2
  • III. WHAT IS HEARSAY?
    • A. Out-of-Court Statement 19.3
    • B. Out-of-Court Statement Offered to Prove Truth of Matter Stated 19.4
  • IV. WHAT IS NOT HEARSAY?
    • A. Statement Offered as Circumstantial Evidence 19.5
    • B. Statement Offered to Prove That Statement Was Made 19.6
    • C. Statement Offered to Prove Knowledge or Belief 19.7
  • V. EXCEPTIONS TO HEARSAY RULE: ADMISSIBLE HEARSAY
    • A. Major Categories 19.8
    • B. Important Considerations Regarding Exceptions
      • 1. Other Exclusionary Rules May Apply 19.9
      • 2. Testimonial Statements May Be Barred by Sixth Amendment Confrontation Clause
        • a. Crawford v Washington: "Testimonial" Hearsay 19.9A
        • b. Determining Whether Crawford Applies 19.9B
      • 3. Proponent Must Lay Foundation 19.10
      • 4. Declarant Is Unavailable 19.11
      • 5. Statement Is Untrustworthy 19.12
    • C. Descriptive Catalog of Exceptions
      • 1. Confessions and Admissions
        • a. Admissions of Parties 19.13
        • b. Adoptive Admissions 19.14
        • c. Authorized Admissions 19.15
        • d. Admissions of Co-Conspirators 19.16
      • 2. Statements Under Evid C §§1231–1231.4 19.16A
      • 3. Statements Under Evid C §§1224–1228 19.17
      • 4. Declarations Against Interest 19.18
      • 5. Prior Statements of Witnesses
        • a. Statement Inconsistent With Present Testimony 19.19
        • b. Prior Consistent Statements Offered Under Evid C §1236 19.20
        • c. Past Recollection Recorded 19.21
        • d. Prior Statement Identifying Persons 19.22
      • 6. Spontaneous, Contemporaneous, and Dying Declarations 19.23
      • 7. Statements of Mental or Physical State 19.24
      • 8. Statements Relating to Wills, Revocable Trusts, or to Claims Against Estates 19.25
      • 9. Business Records 19.26
      • 10. Official Records and Other Official Writings 19.27
      • 11. Former Testimony
        • a. Former Testimony Defined (Evid C §1290) 19.28
        • b. Parties Same in Former Action (Evid C §1291) 19.29
        • c. Party Different in Former Action (Evid C §1292) 19.30
        • d. Minor in Child Dependency Action (Evid C §1293) 19.31
        • e. Inconsistent Statement (Evid C §1294) 19.31A
      • 12. Judgments 19.32
      • 13. Family History 19.33
      • 14. Reputation or Statements Concerning Community History, Property Interests, or Character 19.34
      • 15. Dispositive Instruments or Ancient Writings 19.35
      • 16. Statements in Commercial, Scientific, or Similar Publications 19.36
      • 17. Parent's or Guardian's Failure to Cooperate in Child Welfare Services Case Plan as Evidence in Proceeding to Terminate Parental Rights 19.36A
      • 18. Bills Offered to Corroborate Other Evidence 19.37
      • 19. Testimony Given at Preliminary Hearing in Criminal Case 19.38
      • 20. Testimony Given at CCP §527.8 Hearing to Enjoin Workplace Violence and Threats 19.38A
  • VI. IMPEACHING HEARSAY DECLARANT 19.39
  • VII. COMMON MISCONCEPTIONS ABOUT HEARSAY RULE
    • A. "Self-Serving" Is Not an Objection 19.40
    • B. "Res Gestae" Is Not an Exception 19.41
  • VIII. CHECKLIST: HEARSAY PROBLEMS 19.42
  • IX. STATUTE 19.43
  • X. ALTERNATIVES TO OBJECTING 19.44
  • XI. STATING THE OBJECTION 19.45

20

Inadmissible Opinion

  • I. DEFINITION 20.1
  • II. ADMISSIBLE OPINION BY LAY WITNESS
    • A. Introduction 20.2
    • B. Lay Opinion Permitted on Certain Subject Matter 20.3
    • C. Lay Opinion Otherwise Permitted 20.4
    • D. Statute 20.5
  • III. ADMISSIBLE OPINION BY EXPERT WITNESS
    • A. Qualification as Expert 20.6
    • B. Special Type of Subject Matter Beyond Common Experience 20.7
    • C. Basis of Expert Opinion 20.8
      • 1. Expert May Rely on Inadmissible Matter 20.9
      • 2. Scientific Evidence 20.10
        • a. Kelly-Frye Standard 20.11
        • b. California's Kelly Test
          • (1) Establishing General Acceptance of New Scientific Technique or Theory 20.12
          • (2) Applying Kelly Test to Scientific Evidence
            • (a) Techniques That Passed Test 20.13
            • (b) Techniques That Did Not Pass Test 20.14
        • c. Federal Courts' Daubert Test
          • (1) Daubert I 20.15
          • (2) Daubert II 20.16
        • d. Impact of Daubert in California: People v Leahy 20.17
        • e. Psychological Opinion 20.18
    • D. Hypothetical Questions
      • 1. Use 20.19
      • 2. General Rules of Framing 20.20
    • E. Appointment of Experts 20.21
    • F. Statutes 20.22
  • IV. PROCEDURES FOR TESTING OPINION TESTIMONY
    • A. Foundational Examination Before Opinion Stated 20.23
    • B. Voir Dire Examination of Expert 20.24
    • C. Cross-Examination After Opinion Stated 20.25
    • D. Impeachment of Expert by Extrinsic Evidence 20.26
    • E. Cross-Examination of Third Person if Expert's Opinion Is Based on Hearsay 20.27
  • V. OPINION ON ULTIMATE ISSUE IS PERMISSIBLE 20.28
  • VI. ALTERNATIVES TO OBJECTING 20.29
  • VII. STATING THE OBJECTION
    • A. Lay Witness 20.30
    • B. Expert Witness 20.31
  • VIII. RESPONSE: MOTION TO STRIKE 20.32

21

Insufficient Foundation

  • I. INTRODUCTION 21.1
  • II. DETERMINING TYPE OF FOUNDATIONAL PROBLEM PRESENTED
    • A. Determining Proper Classification (Evid C §§403, 405) 21.2
    • B. When Evid C §403 Applies
      • 1. Introduction 21.3
      • 2. Relevancy 21.4
      • 3. Personal Knowledge 21.5
      • 4. Authenticity of Writing 21.6
      • 5. Identity 21.7
    • C. When Evid C §405 Applies 21.8
  • III. COMPARING PROCEDURAL RULES
    • A. Presence of Jury 21.9
    • B. Procedure Under Evid C §403
      • 1. Judge Determines Only Whether Prima Facie Showing Made 21.10
      • 2. Conditional Admission if No Prima Facie Showing Made 21.11
      • 3. Cautionary Instructions to Jury Under Evid C §403 Only 21.12
      • 4. Exclusion of Evidence on Redetermination 21.13
      • 5. Statute 21.14
    • C. Procedure Under Evid C §405
      • 1. Judge Alone Determines Admissibility 21.15
      • 2. No Evid C §405 Conditional Admission 21.16
      • 3. Separating Jury's Role if Preliminary Fact Is Also Ultimate Fact 21.17
      • 4. Statute 21.18
  • IV. RESPONSES TO OBJECTION 21.19
  • V. STATING THE OBJECTION 21.20

22

Improper Impeachment

  • I. INTRODUCTION 22.1
  • II. WIDE LATITUDE ALLOWED FOR IMPEACHMENT
    • A. Increased Freedom to Impeach 22.2
    • B. Impeachment on Collateral Matter Permitted 22.3
    • C. Impeachment by Cross-Examination Not Limited to Scope of Direct Examination 22.4
    • D. Impeachment by Prior Inconsistent Statement
      • 1. Determination of Inconsistency 22.5
      • 2. Permitted Without Showing Statement to Witness 22.5A
      • 3. Permitted, in Judge's Discretion, Even if Witness Has No Opportunity to Explain 22.6
  • III. LIMITATIONS ON IMPEACHMENT
    • A. Rules of General Applicability 22.7
    • B. Rules Specifically Limiting Impeachment
      • 1. Character Evidence 22.8
      • 2. Absence of Religious Belief 22.9
      • 3. Use of Texts for Impeachment 22.10
      • 4. Noncompliance With CCP §2034 Expert Witness List 22.11
      • 5. Judicial Arbitration 22.11A
  • IV. STATUTE 22.12
  • V. ALTERNATIVES TO OBJECTING 22.13
  • VI. STATING THE OBJECTION 22.14

23

Improper Rehabilitation

  • I. INTRODUCTION 23.1
  • II. WIDE LATITUDE ALLOWED FOR REHABILITATION 23.2
  • III. LIMITATIONS ON REHABILITATION
    • A. Rules of General Applicability 23.3
    • B. Rules Specifically Limiting Rehabilitation 23.4
  • IV. STATUTE 23.5
  • V. ALTERNATIVES TO OBJECTING 23.6
  • VI. EFFECT OF FAILURE TO REHABILITATE 23.7
  • VII. STATING THE OBJECTION 23.8

24

Excluding Secondary Evidence

  • I. REPEAL OF BEST EVIDENCE RULE 24.1
  • II. SECONDARY EVIDENCE RULE 24.2
  • III. ADDITIONAL GROUND FOR EXCLUSION OF SECONDARY EVIDENCE IN CRIMINAL ACTION 24.3
  • IV. ORAL TESTIMONY OF CONTENT OF WRITING GENERALLY NOT ADMISSIBLE 24.4
  • V. PRINTED REPRESENTATIONS OF COMPUTER INFORMATION OR PROGRAM, OR OF VIDEO OR DIGITAL IMAGES, PRESUMED ACCURATE 24.5
  • VI. STATUTE 24.6
  • VII. ALTERNATIVES TO OBJECTING 24.7
  • VIII. STATING THE OBJECTION 24.8

25

Inadmissible Parol Evidence

  • I. DEFINITION 25.1
  • II. STATUTORY BASIS 25.2
  • III. WHEN RULE APPLIES; CONCEPT OF INTEGRATION 25.3
  • IV. WHO MAY INVOKE RULE 25.4
  • V. EXCEPTIONS TO RULE
    • A. To Prove Mistake, Illegality, or Fraud 25.5
    • B. To Prove Invalidity 25.6
    • C. To Explain Terms 25.7
    • D. To Resolve Ambiguity 25.8
    • E. Several Writings Constituting Agreement 25.9
    • F. Consistent Additional Terms 25.10
    • G. Subsequent Modifications 25.11
  • VI. REQUIREMENT OF PROMPT OBJECTION 25.12
  • VII. STATING THE OBJECTION 25.13

26

Cross-Examination Exceeds Scope of Direct Examination

  • I. TYPES OF CROSS-EXAMINATION 26.1
  • II. STATEMENT OF RULE
    • A. Statutory Provisions Establishing Restricted Scope 26.2
    • B. Unlimited Scope for Impeachment Cross-Examination 26.3
    • C. Determining "Scope" 26.4
  • III. "OPENING THE DOOR" EXCEPTION
    • A. Limited Nature of Exception 26.5
    • B. When "Curative Admissibility" Exception Applies
      • 1. Offsetting Highly Prejudicial Evidence: Curative Admissibility 26.6
      • 2. Putting Evidence in Proper Context: Rule of Completeness 26.7
  • IV. ADDITIONAL PROTECTION BASED ON CONSTITUTIONAL PRIVILEGE AGAINST SELF-INCRIMINATION 26.8
  • V. RELATED OBJECTIONS TO RECROSS- AND REDIRECT EXAMINATION 26.9
  • VI. ALTERNATIVES TO OBJECTING 26.10
  • VII. STATING THE OBJECTION 26.11

27

Corpus Delicti Not Proved

  • I. INTRODUCTION 27.1
  • II. PROOF REQUIRED 27.2
  • III. PROCEDURE
    • A. Judge's Determination Regarding Corpus Delicti 27.3
    • B. Trial Jury's Determination
      • 1. Separate Determination Required 27.4
      • 2. Determination Regarding Corpus Delicti 27.5
      • 3. Determination Regarding Guilt 27.6
      • 4. Difficulty of Separating Jury's Determinations 27.7

28

Illegally Obtained Evidence

  • I. SCOPE OF CHAPTER 28.1
  • II. SUMMARY 28.2
  • III. SEARCH AND SEIZURE EXCLUSIONARY RULE
    • A. Constitutional Provisions 28.3
    • B. Applicability
      • 1. Criminal Cases 28.3A
      • 2. Civil Cases 28.4
      • 3. Quasi-Criminal Cases 28.5
      • 4. Administrative Proceedings 28.6
  • IV. EXCLUDING EVIDENCE UNDER EVID C §352 28.7
  • V. EXCLUDING EVIDENCE OBTAINED BY FRAUD AND DECEIT 28.8
  • VI. EXCLUDING EVIDENCE OBTAINED BY OUTRAGEOUS OR SHOCKING METHODS 28.9
  • VII. EXCLUDING ILLEGALLY OBTAINED CONFESSIONS AND ADMISSIONS 28.10
  • VIII. EXCLUDING EVIDENCE OBTAINED DURING ADMINISTRATIVE INSPECTIONS 28.11
  • IX. PROCEDURE 28.12
  • X. STATING THE OBJECTION
    • A. Illegal Search and Seizure 28.13
    • B. Illegally Obtained Confessions and Admissions 28.14
    • C. Other Illegally Obtained Evidence 28.15

29

Objecting to Misconduct

  • I. SCOPE OF CHAPTER 29.1
  • II. MISCONDUCT OF COUNSEL
    • A. Definition 29.2
    • B. Examples of Misconduct of Counsel
      • 1. Primary Categories 29.3
      • 2. Misconduct Before Trial or During Voir Dire Examination 29.4
      • 3. Misconduct During Opening Statement 29.5
      • 4. Misconduct During Examination of Witnesses 29.6
      • 5. Misconduct During Argument 29.7
      • 6. Misconduct After Trial 29.8
    • C. Determining Prejudicial Effect 29.9
    • D. Remedies
      • 1. Objection
        • a. Purpose 29.10
        • b. Timeliness 29.11
        • c. Objecting to Misconduct 29.12
        • d. Laying Foundation for Misconduct That Occurred Without Judge's Knowledge 29.13
      • 2. Requesting Curative Admonition 29.14
      • 3. Contempt 29.15
      • 4. Motion for Mistrial 29.16
      • 5. Motion for New Trial 29.17
      • 6. Appeal 29.18
    • E. Alternatives to Objecting 29.19
    • F. Stating the Objection 29.20
  • III. MISCONDUCT OF JUDGE
    • A. Standards of Conduct 29.21
    • B. Examples of Misconduct of Judge 29.22
      • 1. Abuse of Power to Comment on Evidence 29.23
      • 2. Abuse of Power to Examine Witnesses or Prospective Witnesses 29.24
      • 3. Interference With Production of Proof 29.25
      • 4. Coercive Actions 29.26
      • 5. Disparagement of Counsel, Witness, or Party 29.27
    • C. Remedies
      • 1. Objection 29.28
      • 2. Motion for Mistrial 29.29
      • 3. Motion for New Trial 29.30
      • 4. Appeal 29.31
    • D. Alternatives to Objecting 29.32
    • E. Stating the Objection 29.33
  • IV. MISCONDUCT OF JURORS
    • A. Standards of Conduct 29.34
    • B. Examples of Misconduct of Jurors
      • 1. Concealing Information During Voir Dire Examination 29.35
      • 2. Receiving Evidence Out of Court
        • a. General Restrictions 29.36
        • b. Specific Prohibitions
          • (1) Independent Investigations or Research 29.37
          • (2) Independent Experiments 29.38
          • (3) Unauthorized Discussions 29.39
          • (4) Personal Knowledge of Facts 29.40
          • (5) Personal Knowledge of Law 29.41
          • (6) Unauthorized Matter in Jury Room 29.42
      • 3. Arriving at Verdict by Chance or by Quotient 29.43
      • 4. Inattentiveness During Trial 29.44
      • 5. Failure to Deliberate 29.44A
    • C. Remedies
      • 1. Before Verdict Rendered 29.45
      • 2. After Verdict Rendered 29.46
    • D. Alternatives to Objecting 29.47
    • E. Stating the Objection
      • 1. Before Verdict Rendered 29.48
      • 2. After Verdict Rendered 29.49

30

Unduly Inflammatory

  • I. DEFINITION 30.1
  • II. ANALYSIS 30.2
  • III. TACTICS; PROCEDURE 30.3
  • IV. ILLUSTRATIONS
    • A. Discretion Upheld 30.4
    • B. Abuse of Discretion 30.5
  • V. STATUTE 30.6
  • VI. STATING THE OBJECTION 30.7

31

Excluding Relevant Evidence Under Evid C §352

  • I. INTRODUCTION 31.1
  • II. APPLICABILITY 31.2
    • A. Unduly Prejudicial
      • 1. Civil Trials 31.3
      • 2. Criminal Trials 31.4
    • B. Unduly Time Consuming 31.5
    • C. Cumulative Evidence 31.6
      • 1. Analysis 31.7
      • 2. Illustrations 31.8
      • 3. Tactics 31.9
      • 4. Stating the Objection 31.10
    • D. Confuses Issues or Misleads Jury 31.11
  • III. DURING TRIAL
    • A. Court's Balancing Factors 31.12
    • B. Responses
      • 1. Motion to Strike 31.13
      • 2. Offer of Proof 31.14
      • 3. Argument 31.15
      • 4. Record for Appeal 31.16
  • IV. PROCEDURE 31.17
  • V. STATUTE 31.18
  • VI. INVOKING JUDGE'S AUTHORITY 31.19

32

Other Policy Exclusions of Evidence

  • I. INTRODUCTION 32.1
  • II. EVIDENCE OF SETTLEMENT NEGOTIATIONS
    • A. Offer of Compromise Payment in Civil Cases 32.2
    • B. Acceptance of Compromise Payment in Civil Cases 32.3
    • C. Offer to Plead Guilty 32.4
  • III. EVIDENCE OF SUBSEQUENT SAFETY MEASURES 32.5
  • IV. EVIDENCE REGARDING LIABILITY INSURANCE 32.6
  • V. MEDIATION CONFIDENTIALITY 32.6A
  • VI. EVIDENCE OF SIMILAR ACTS OR OCCURRENCES 32.7
  • VII. LIMITED ADMISSIBILITY INSTRUCTION 32.8
  • VIII. MISCELLANEOUS OTHER STATUTES 32.9
  • IX. EVIDENCE OF COLLATERAL SOURCE PAYMENTS
    • A. Collateral Source Rule 32.10
    • B. Limits on Application of Rule
      • 1. Action Against Public Entity 32.11
      • 2. Action Against Health Care Provider 32.12
      • 3. Malingering Claim 32.13
      • 4. FELA Action in State Court 32.14
  • X. ALTERNATIVES TO OBJECTING 32.15
  • XI. STATING THE OBJECTION 32.16

33

Privileges: General Rules and Considerations

  • I. INTRODUCTION
    • A. Overview of Privileges 33.1
    • B. Applicability 33.2
    • C. Exclusively Statutory Basis 33.3
    • D. Confidentiality Distinct From Privilege 33.3A
  • II. EXERCISING PRIVILEGES
    • A. Determining Who Can Invoke or Waive
      • 1. Meaning of "Holder" 33.4
      • 2. Claim or Assertion 33.5
      • 3. Waiver 33.6
      • 4. Remedies for Erroneous Denial 33.7
    • B. Privileges in Preparing for Trial
      • 1. Role of Counsel 33.8
      • 2. Discovery Proceedings 33.9
      • 3. Selection of Privileges to Be Invoked 33.10
    • C. Assertion of Privilege at Trial
      • 1. Claim of Privilege 33.11
      • 2. Use of Privileged Writing to Refresh Memory 33.12
      • 3. Avoiding Need to Claim Privilege Before Jury 33.13
      • 4. Exclusion of Privileged Information in Absence of Claimant
        • a. Privileges Covered by Exclusion Procedure 33.14
        • b. Evid C §916 Requirements for Exclusion of Information Subject to Claim 33.15
        • c. Exceptions 33.16
    • D. Upholding Privilege Contested at Trial
      • 1. Procedure for Ruling on Privilege 33.17
      • 2. Burden of Proof 33.18
      • 3. Offer of Proof 33.19
    • E. Evid C §913 Protection Against Comment and Inference 33.20
    • F. Remedies for Erroneous Denial of Privilege
      • 1. Party's Assertion of Error 33.21
      • 2. Seeking Extraordinary Writ
        • a. Privilege Claimed by Witness 33.22
        • b. Privilege Claimed by Person Other Than Witness 33.23
      • 3. Objection to Subsequent Use of Erroneously Compelled Disclosure 33.24
  • III. OPPOSITION TO PRIVILEGES
    • A. Before Trial 33.25
    • B. Response to Assertion of Privilege at Trial
      • 1. Controverting Privilege 33.26
      • 2. Offer of Proof 33.27
    • C. Subsequent Admission of Evidence Excluded as Privileged in Absence of Claimant 33.28
    • D. Comment on Opponent's Failure to Explain or Deny Evidence 33.29
    • E. Remedy for Erroneous Allowance of Privilege 33.30
  • IV. STATUTES 33.31

34

Attorney-Client Privilege

  • I. NATURE AND PURPOSE 34.1
  • II. DISTINGUISHING BETWEEN ATTORNEY-CLIENT PRIVILEGE AND WORK PRODUCT DOCTRINE 34.2
  • III. REQUIREMENTS
    • A. Attorney-Client Relationship
      • 1. Professional Consultation 34.3
      • 2. Who Is the Client?
        • a. Individual as Client 34.4
        • b. Corporation as Client 34.5
          • (1) Attorney as Witness 34.5A
          • (2) Current and Former Corporate Employees 34.6
          • (3) Upjohn Decision 34.7
        • c. Joint Clients 34.7A
      • 3. Who Is the Attorney? 34.8
    • B. Communication 34.9
    • C. Confidentiality 34.10
    • D. Mediation Confidentiality 34.10A
  • IV. WHO CAN CLAIM THE PRIVILEGE
    • A. Client or Client's Representative 34.11
    • B. Attorney's Duty to Claim 34.12
    • C. Judge May Exclude Information 34.13
  • V. EXCEPTIONS 34.14
    • A. Based on Nature of Attorney-Client Relationship
      • 1. Assistance in Crime or Fraud 34.15
      • 2. Breach of Attorney-Client Duty 34.16
      • 3. Subsequent Litigation Between Joint Clients 34.17
    • B. Claims Through Deceased Client
      • 1. Issues Between Claimants 34.18
      • 2. Deceased Client's Written Instrument 34.19
  • VI. TERMINATION BY DEATH, DISSOLUTION, OR WAIVER
    • A. Effect of Client's Death 34.20
    • B. Effect of Organization Client's Dissolution 34.21
    • C. Waiver
      • 1. Disclosure of Significant Part of Communication 34.22
      • 2. Failure to Claim Privilege 34.22A
      • 3. Joint Defense Agreements and Disclosure 34.22B
  • VII. RULING ON PRIVILEGE
    • A. Procedure 34.23
    • B. Burden of Proof 34.24
  • VIII. STATUTES 34.25
  • IX. ILLUSTRATIONS OF PRIVILEGE 34.26
  • X. STATING CLAIM OF PRIVILEGE
    • A. By Client-Witness 34.27
    • B. By Attorney-Witness 34.28
    • C. By Trial Counsel 34.29

35

Work Product Doctrine

  • I. DEFINITION AND PURPOSE 35.1
  • II. DISTINGUISHING BETWEEN WORK PRODUCT DOCTRINE AND ATTORNEY-CLIENT PRIVILEGE 35.2
  • III. TYPES OF WORK PRODUCT
    • A. Civil Cases 35.3
    • B. Criminal Cases 35.4
  • IV. WHO MAY CLAIM PROTECTION? 35.5
  • V. DURATION AND AVAILABILITY OF PROTECTION 35.6
  • VI. EXCEPTIONS 35.7
  • VII. WAIVER 35.8
  • VIII. IN CAMERA REVIEW IN CIVIL AND CRIMINAL CASES 35.9
  • IX. STATUTES 35.10
  • X. STATING THE CLAIM 35.11

36

Physician-Patient Privilege

  • I. NATURE AND PURPOSE 36.1
  • II. REQUIREMENTS
    • A. Physician-Patient Relationship 36.2
    • B. Communication or Information 36.3
    • C. Confidentiality 36.4
  • III. WHO CAN CLAIM?
    • A. Patient or Patient's Representative 36.5
    • B. Physician's Duty to Claim 36.6
    • C. Judge May Exclude Information 36.7
  • IV. EXCEPTIONS 36.8
    • A. Patient-Litigant 36.9
    • B. Criminal and Quasi-Criminal
      • 1. Criminal Proceedings 36.10
      • 2. Civil Damages for Patient's Conduct 36.11
      • 3. Disciplinary Proceedings 36.12
      • 4. Child Abuse 36.13
    • C. When Patient's Competence Is at Issue 36.14
    • D. Nature of Physician-Patient Relationship
      • 1. Assistance in Crime or Tort 36.15
      • 2. Breach of Physician-Patient Duty 36.16
    • E. Claims Through Deceased Patient 36.17
    • F. Public Record 36.18
  • V. TERMINATION BY DEATH OR WAIVER
    • A. Effect of Patient's Death 36.19
    • B. Waiver 36.20
  • VI. RULING ON PRIVILEGE
    • A. Procedure 36.21
    • B. Burden of Proof 36.22
  • VII. STATUTES 36.23
  • VIII. ILLUSTRATIONS OF PRIVILEGE 36.24
  • IX. STATING CLAIM OF PRIVILEGE
    • A. By Witness 36.25
    • B. By Trial Counsel 36.26

37

Psychotherapist-Patient Privilege

  • I. NATURE AND PURPOSE 37.1
  • II. REQUIREMENTS
    • A. Psychotherapist-Patient Relationship 37.2
    • B. Communication or Information 37.3
    • C. Confidentiality 37.4
  • III. WHO CAN CLAIM?
    • A. Patient or Patient's Representative 37.5
    • B. Psychotherapist's Duty to Claim 37.6
    • C. Judge May Exclude Information 37.7
  • IV. EXCEPTIONS
    • A. Patient-Litigant
      • 1. Civil Trials 37.8
      • 2. Criminal Trials 37.9
    • B. Psychotherapist Considers Patient to Be Dangerous 37.10
    • C. Nature of Psychotherapist-Patient Relationship
      • 1. Assistance in Crime or Tort 37.11
      • 2. Breach of Psychotherapist-Patient Duty 37.12
    • D. Claims Through Deceased Patient 37.13
    • E. Public Record 37.14
    • F. Child Abuse 37.15
  • V. TERMINATION BY DEATH OR WAIVER
    • A. Effect of Patient's Death 37.16
    • B. Waiver 37.17
  • VI. RULING ON PRIVILEGE
    • A. Procedure 37.18
    • B. Burden of Proof 37.19
  • VII. STATUTES 37.20
  • VIII. ILLUSTRATIONS OF PRIVILEGE 37.21
  • IX. STATING CLAIM OF PRIVILEGE
    • A. By Witness 37.22
    • B. By Trial Counsel 37.23

38

Sexual Assault Counselor–Victim Privilege

  • I. NATURE AND PURPOSE 38.1
  • II. REQUIREMENTS
    • A. Counselor-Victim Relationship 38.2
    • B. Communication or Information 38.3
    • C. Confidentiality 38.4
  • III. WHO CAN CLAIM
    • A. Victim or Victim's Representative 38.5
    • B. Counselor's Duty to Claim 38.6
    • C. Judge May Exclude Information 38.7
  • IV. TERMINATION BY DEATH OR WAIVER
    • A. Effect of Victim's Death 38.8
    • B. Waiver 38.9
  • V. RULING ON PRIVILEGE
    • A. Dispute Over Nature of Communication; Procedure 38.10
    • B. Other Issues 38.11
    • C. Burden of Proof 38.12
  • VI. STATUTES 38.13
  • VII. ILLUSTRATIONS OF PRIVILEGE 38.14
  • VIII. STATING CLAIM OF PRIVILEGE
    • A. By Witness 38.15
    • B. By Trial Counsel 38.16

39

Domestic Violence Counselor–Victim Privilege

  • I. NATURE AND PURPOSE 39.1
  • II. REQUIREMENTS
    • A. Counselor-Victim Relationship 39.2
    • B. Communication or Information 39.3
    • C. Confidentiality 39.4
  • III. WHO CAN CLAIM
    • A. Victim or Victim's Representative 39.5
    • B. Counselor's Duty to Claim 39.6
    • C. Judge May Exclude Information 39.7
  • IV. TERMINATION BY DEATH OR WAIVER
    • A. Effect of Victim's Death 39.8
    • B. Waiver 39.9
  • V. RULING ON PRIVILEGE
    • A. Court-Compelled Disclosure; Procedure 39.10
    • B. Other Issues 39.11
    • C. Burden of Proof 39.12
  • VI. STATUTES 39.13
  • VII. ILLUSTRATIONS OF PRIVILEGE 39.14
  • VIII. STATING CLAIM OF PRIVILEGE
    • A. By Witness 39.15
    • B. By Trial Counsel 39.16

39A

Human Trafficking Caseworker–Victim Privilege

  • I. NATURE AND PURPOSE 39A.1
  • II. REQUIREMENTS
    • A. Caseworker-Victim Relationship 39A.2
    • B. Communication or Information 39A.3
    • C. Confidentiality 39A.4
  • III. WHO CAN CLAIM
    • A. Victim or Victim's Representative 39A.5
    • B. Caseworker's Duty to Claim 39A.6
    • C. Judge May Exclude Information 39A.7
  • IV. RULING ON PRIVILEGE
    • A. Dispute Over Nature of Communication; Procedure 39A.8
    • B. Other Issues 39A.9
    • C. Burden of Proof 39A.10
  • V. STATUTES 39A.11
  • VI. ILLUSTRATIONS OF PRIVILEGE 39A.12
  • VII. STATING CLAIM OF PRIVILEGE
    • A. By Witness 39A.13
    • B. By Trial Counsel 39A.14

40

Privilege for Confidential Marital Communications

  • I. NATURE AND PURPOSE 40.1
  • II. REQUIREMENTS
    • A. Valid Marriage or Domestic Partnership 40.2
    • B. Communication 40.3
    • C. Confidentiality 40.4
  • III. WHO CAN CLAIM
    • A. Either Spouse or Domestic Partner 40.5
    • B. Guardian or Conservator 40.6
    • C. Judge May Exclude Information 40.7
  • IV. EXCEPTIONS
    • A. Assistance in Crime or Fraud 40.8
    • B. Communication Offered by Defendant Spouse in Criminal Proceeding 40.9
    • C. Particular Proceedings 40.10
      • 1. Spouse's Competence Is at Issue 40.11
      • 2. Litigation Between Spouses 40.12
      • 3. Litigation Between Surviving Spouse and Claimant Through Deceased Spouse 40.13
      • 4. Juvenile Court Proceedings 40.14
      • 5. Spouse Charged With Certain Crimes 40.15
      • 6. Law Enforcement Administrative Investigations and Hearings 40.15A
  • V. TERMINATION BY DEATH OR WAIVER
    • A. Effect of Spouse's Death 40.16
    • B. Waiver 40.17
  • VI. RULING ON PRIVILEGE
    • A. Procedure 40.18
    • B. Burden of Proof 40.19
  • VII. STATUTES 40.20
  • VIII. ILLUSTRATIONS OF PRIVILEGE 40.21
  • IX. STATING CLAIM OF PRIVILEGE
    • A. By Witness 40.22
    • B. By Trial Counsel 40.23

41

Privilege Not to Testify Against Spouse

  • I. NATURE AND PURPOSE 41.1
  • II. REQUIREMENTS
    • A. Valid Marriage 41.2
    • B. Demand for Testimony "Against" Spouse
      • 1. Testimony "For" Spouse Not Privileged 41.3
      • 2. Testimony "Against" Party Spouse
        • a. Two-Party Action 41.4
        • b. Multiple Parties Including One Spouse 41.5
        • c. Both Spouses Are Parties 41.6
      • 3. Testimony "Against" Nonparty Spouse 41.7
  • III. ONLY WITNESS SPOUSE CAN CLAIM 41.8
  • IV. EXCEPTIONS 41.9
    • A. Litigation Between Spouses 41.10
    • B. Spouse's Competence Is at Issue 41.11
    • C. Juvenile Court Proceedings 41.12
    • D. Spouse Charged With Certain Crimes 41.13
    • E. Criminal Act Occurred Before Marriage of Spouses 41.14
    • F. Certain Proceedings Brought by One Spouse Against Other or to Enforce Child Support Obligations 41.15
  • V. TERMINATION BY DISSOLUTION OF MARRIAGE OR BY WAIVER
    • A. Dissolution of Marriage 41.16
    • B. Waiver
      • 1. Waiver by Testimony 41.17
        • a. Testimony for Spouse 41.18
        • b. Testimony Against Party Spouse 41.19
        • c. Testimony Against Nonparty Spouse 41.20
        • d. Extent of Waiver 41.21
      • 2. Action or Defense for Immediate Benefit of Spouse 41.22
  • VI. RULING ON PRIVILEGE
    • A. Procedure 41.23
    • B. Burden of Proof 41.24
  • VII. STATUTES 41.25
  • VIII. ILLUSTRATIONS OF PRIVILEGE 41.26
  • IX. STATING CLAIM OF PRIVILEGE
    • A. If Witness's Spouse Is Party
      • 1. By Witness 41.27
      • 2. By Trial Counsel for Party Spouse 41.28
    • B. If Particular Question Calls for Testimony Against Witness's Nonparty Spouse
      • 1. By Witness 41.29
      • 2. By Trial Counsel 41.30

42

Privilege Not to Be Called as Witness Against Spouse

  • I. NATURE AND PURPOSE 42.1
  • II. EFFECT OF MULTIPLE PARTIES 42.2
  • III. REQUIREMENTS
    • A. Valid Marriage 42.3
    • B. Witness's Spouse Must Be Party 42.4
    • C. Witness Called by Adverse Party
      • 1. Criminal Actions
        • a. Witness Called by Prosecutor 42.5
        • b. Witness Called by Codefendant 42.6
      • 2. Civil Actions
        • a. Two-Party Action 42.7
        • b. Multiple Parties Including One Spouse 42.8
        • c. Both Spouses Are Parties 42.9
  • IV. EXERCISE OF PRIVILEGE 42.10
  • V. EXCEPTIONS
    • A. Witness Called in Good Faith Ignorance of Marital Relationship 42.11
    • B. Proceedings in Which Privilege Is Not Available 42.12
  • VI. TERMINATION BY DISSOLUTION OF MARRIAGE OR BY WAIVER
    • A. Dissolution of Marriage 42.13
    • B. Waiver
      • 1. Acquiescence in Being Called by Adverse Party 42.14
      • 2. Waiver by Testimony 42.15
      • 3. Action or Defense for Immediate Benefit of Spouse 42.16
  • VII. RULING ON PRIVILEGE
    • A. Procedure 42.17
    • B. Burden of Proof 42.18
  • VIII. STATUTES 42.19
  • IX. ILLUSTRATIONS OF PRIVILEGE 42.20
  • X. STATING CLAIM OF PRIVILEGE
    • A. By Witness 42.21
    • B. By Trial Counsel for Party Spouse 42.22

43

Privilege for Official Information

  • I. NATURE OF PRIVILEGE 43.1
  • II. REQUIREMENTS
    • A. Information Acquired by Public Employee 43.2
    • B. Confidentiality 43.3
    • C. Grounds for Nondisclosure
      • 1. Federal or California Statute 43.4
      • 2. Military and State Secrets 43.5
      • 3. Balancing of Necessities 43.6
  • III. WHO CAN CLAIM? 43.7
  • IV. EFFECT IN CRIMINAL PROCEEDINGS
    • A. Order or Finding Adverse to Prosecution 43.8
    • B. Exceptions to Adverse Finding Rule
      • 1. Privilege Invoked by Non-California Public Entity 43.9
      • 2. Federal Statute Forbidding Disclosure 43.10
      • 3. Information to Support Search Warrant 43.11
  • V. TERMINATION AND WAIVER 43.12
  • VI. RULING ON PRIVILEGE
    • A. Procedure 43.13
    • B. Burden of Proof 43.14
  • VII. STATUTES 43.15
  • VIII. ILLUSTRATIONS OF PRIVILEGE 43.16
  • IX. STATING CLAIM OF PRIVILEGE
    • A. By Witness 43.17
    • B. By Trial Counsel 43.18
  • X. MOTION FOR ORDER OR FINDING ADVERSE TO PROSECUTION 43.19

44

Privilege for Identity of Informer

  • I. NATURE OF PRIVILEGE 44.1
  • II. PRETRIAL PROCEDURES CONCERNING PRIVILEGE FOR IDENTITY OF INFORMER 44.2
  • III. PROCEDURES WHEN INFORMER PRIVILEGE ARISES DURING TRIAL
    • A. Information From Informer
      • 1. Purported Disclosure of Law Violation 44.3
      • 2. Recipient of Information 44.4
      • 3. Confidentiality 44.5
    • B. Grounds for Nondisclosure of Identity 44.6
    • C. Who Can Claim? 44.7
    • D. Termination and Waiver 44.8
    • E. Hearings and Ruling on Privilege
      • 1. Privilege Raised 44.9
      • 2. In Camera Hearing; Final Hearing 44.10
      • 3. Burden of Proof 44.11
  • IV. STATUTES 44.12
  • V. ILLUSTRATIONS OF PRIVILEGE 44.13
  • VI. STATING CLAIM OF PRIVILEGE
    • A. By Witness 44.14
    • B. By Prosecutor 44.15
  • VII. DEFENSE COUNSEL'S MOTION FOR ORDER OR FINDING ADVERSE TO PROSECUTION 44.16

45

Trade Secrets Privilege

  • I. NATURE OF PRIVILEGE 45.1
  • II. REQUIREMENTS
    • A. Trade Secret 45.2
    • B. Privilege Allowed Only if No Injustice Will Result 45.3
  • III. WHO MAY CLAIM? 45.4
  • IV. TERMINATION AND WAIVER 45.5
  • V. RULING ON PRIVILEGE
    • A. Procedure 45.6
    • B. Burden of Proof 45.7
  • VI. STATUTE 45.8
  • VII. STATING CLAIM OF PRIVILEGE
    • A. By Witness 45.9
    • B. By Trial Counsel 45.10

46

Privilege Against Self-Incrimination

  • I. SCOPE OF CHAPTER 46.1
  • II. NATURE AND CONSTITUTIONAL BASIS 46.2
  • III. REQUIREMENTS
    • A. Demand for Testimony or Communication Belonging to Witness 46.3
    • B. Evidence Would Subject Witness to Criminal Penalty 46.4
    • C. Connection Between Evidence and Punishable Act 46.5
  • IV. WRITINGS THAT QUALIFY 46.6
  • V. CLAIM OF PRIVILEGE
    • A. Who Can Claim? 46.7
    • B. Form of Claim 46.8
    • C. When to Raise Privilege; Questioning Before Jury 46.9
    • D. Court Has No Duty to Warn Self-Represented Criminal Defendant of Privilege 46.10
  • VI. RESPONSES OF PARTY OPPOSING PRIVILEGE IN CIVIL CASE 46.11
  • VII. RULE AGAINST COMMENT ON OR INFERENCE FROM EXERCISE OF PRIVILEGE 46.12
  • VIII. TERMINATION OF PRIVILEGE
    • A. Prosecution Barred 46.13
    • B. Immunity
      • 1. Principal Immunity Provisions 46.14
        • a. Transactional and Use Immunity in Criminal Proceedings 46.15
        • b. Immunity in Civil Cases 46.16
      • 2. Other Immunity Provisions 46.17
      • 3. Criminal Defense Witness Immunity 46.18
    • C. Waiver 46.19
  • IX. BURDEN OF PROOF AND RULING; WRIT REVIEW 46.20
  • X. STATING CLAIM OF PRIVILEGE AGAINST SELF-INCRIMINATION 46.21

47

Privilege of Defendant in Criminal Case Not to Be Called and Not to Testify

  • I. NATURE AND CONSTITUTIONAL BASIS 47.1
  • II. REQUIREMENTS
    • A. Criminal Prosecution of Defendant 47.2
    • B. Testimonial or Communicative Evidence 47.3
  • III. DECIDING WHETHER TO TESTIFY 47.4
  • IV. ASSERTION OF PRIVILEGE 47.5
  • V. RULE AGAINST COMMENT ON OR INFERENCE FROM FAILURE TO TESTIFY 47.6
  • VI. WAIVER 47.7
  • VII. RULING ON PRIVILEGE 47.8
  • VIII. STATUTE 47.9
  • IX. STATING OBJECTIONS BASED ON PRIVILEGE 47.10

48

Journalist's Immunity From Contempt

  • I. NATURE OF JOURNALIST'S "SHIELD LAW" 48.1
    • A. Federal and State Constitutional Basis for Privilege Not to Disclose Information
      • 1. Historical Development of Privilege 48.2
      • 2. Showing Required to Compel Testimony of Journalist 48.3
      • 3. Guidelines for Issuing Subpoenas to Journalists 48.4
      • 4. Interpretation of Privilege by California Supreme Court 48.5
    • B. Constitutional and Statutory Sources for California's Immunity From Contempt 48.6
      • 1. Requirements
        • a. Who Is Considered a "Journalist"? 48.7
        • b. Information Covered by Immunity 48.8
        • c. When Immunity May Be Claimed 48.9
      • 2. Scope of Immunity
        • a. Civil Trials 48.10
        • b. Criminal Trials 48.11
  • II. ASSERTION OF PRIVILEGE OR CLAIM OF IMMUNITY 48.12
    • A. Civil Trials 48.13
    • B. Criminal Trials
      • 1. Triggering Delaney Protection 48.14
      • 2. Applying Delaney Balancing Test 48.15
      • 3. [Deleted] 48.16
  • III. WAIVER 48.17
  • IV. STATING THE OBJECTION 48.18
  • V. RESPONSE IF JOURNALIST IS CITED FOR CONTEMPT 48.19
  • VI. CALIFORNIA CONSTITUTION; STATUTE 48.20

49

Voter's Privilege

  • I. NATURE AND PURPOSE 49.1
  • II. REQUIREMENTS
    • A. Public Election; Secret Ballot 49.2
    • B. Tenor of Vote Permitted 49.3
  • III. WHO CAN CLAIM? 49.4
  • IV. EXCEPTION FOR ILLEGAL VOTE 49.5
  • V. WAIVER THROUGH DISCLOSURE 49.6
  • VI. RULING ON PRIVILEGE
    • A. Procedure 49.7
    • B. Burden of Proof 49.8
  • VII. STATUTE 49.9
  • VIII. ILLUSTRATIONS OF PRIVILEGE 49.10
  • IX. STATING CLAIM OF PRIVILEGE
    • A. By Witness 49.11
    • B. By Trial Counsel 49.12

50

Penitent's Privilege

  • I. NATURE OF PRIVILEGE 50.1
  • II. REQUIREMENTS
    • A. Cleric 50.2
    • B. Penitent 50.3
    • C. Communication 50.4
    • D. Confidentiality 50.5
  • III. WHO CAN CLAIM? 50.6
  • IV. TERMINATION AND WAIVER
    • A. Death of Penitent 50.7
    • B. Waiver 50.8
  • V. RULING ON PRIVILEGE
    • A. Procedure 50.9
    • B. Burden of Proof 50.10
  • VI. STATUTE 50.11
  • VII. ILLUSTRATIONS OF PRIVILEGE 50.12
  • VIII. STATING CLAIM OF PRIVILEGE
    • A. By Witness 50.13
    • B. By Trial Counsel 50.14

51

Cleric's Privilege

  • I. NATURE OF PRIVILEGE 51.1
  • II. REQUIREMENTS
    • A. Cleric 51.2
    • B. Penitent 51.3
    • C. Communication 51.4
    • D. Confidentiality 51.5
  • III. WHO CAN CLAIM? 51.6
  • IV. TERMINATION AND WAIVER
    • A. Death of Cleric 51.7
    • B. Waiver 51.8
  • V. RULING ON PRIVILEGE
    • A. Procedure 51.9
    • B. Burden of Proof 51.10
  • VI. STATUTE 51.11
  • VII. ILLUSTRATIONS OF PRIVILEGE 51.12
  • VIII. STATING CLAIM OF PRIVILEGE
    • A. By Witness 51.13
    • B. By Trial Counsel 51.14

52

Motion to Strike

  • I. NATURE AND PURPOSE 52.1
  • II. WHO CAN MAKE MOTION TO STRIKE? USES OF MOTION 52.2
  • III. WHEN MOTION TO STRIKE IS PROPER
    • A. Nonresponsive Answer to Proper Question 52.3
    • B. Improper Question Answered Too Quickly for Objection 52.4
    • C. Failure to Prove Foundation for Conditionally Admitted Evidence 52.5
    • D. Admissible Evidence That Becomes Inadmissible 52.6
  • IV. HOW MOTION MUST BE MADE
    • A. Timeliness; Request for Admonition 52.7
    • B. Specification of Particular Evidence to Be Stricken 52.8
    • C. Specification of Grounds 52.9
    • D. Striking by Judge on Own Motion 52.10
  • V. POSSIBLE SANCTIONS: ADMONITION, MISCONDUCT, MISTRIAL 52.11
  • VI. EFFECT ON TRIAL RECORD OF STRIKING EVIDENCE 52.12
  • VII. FORFEITURE
    • A. Failure to Make Proper Motion 52.13
    • B. Failure to Obtain Ruling 52.14
  • VIII. DECIDING WHETHER TO MAKE MOTION
    • A. Tactical Advantages and Disadvantages 52.15
    • B. Alternatives to Motion to Strike 52.16
  • IX. EFFECT AT TRIAL OF FAILURE TO OBJECT TO NONRESPONSIVE ANSWER GIVEN DURING DEPOSITION 52.17
  • X. STATING MOTION AND REQUEST FOR ADMONITION 52.18

53

Jury Admonitions

  • I. ADMONITIONS
    • A. During Trial 53.1
    • B. As Part of Jury Instructions 53.2
  • II. COMMON USE OF ADMONITIONS
    • A. Misconduct 53.3
    • B. Stricken or Excluded Evidence 53.4
    • C. Evidence Admitted for Limited Purpose
      • 1. Counsel's Request for Limiting Admonition or Instruction 53.5
      • 2. Sample Limiting Instructions 53.6
    • D. Exercise of Privilege 53.7

54

Motion for Continuance

  • I. INTRODUCTION 54.1
  • II. GOOD CAUSE REQUIRED
    • A. Civil Trials 54.2
    • B. Criminal Trials 54.3
  • III. CONTINUANCE BASED ON SURPRISE EVIDENCE
    • A. Surprise Must Be Genuine 54.4
    • B. Relevant Opposing Evidence Must Be Available 54.5
    • C. Opposing Evidence Must Be Disputed 54.6
  • IV. PROCEDURE
    • A. Civil Cases
      • 1. Request for Continuance 54.7
      • 2. Stipulation to Avoid Continuance 54.8
      • 3. Factors Considered by Judge in Ruling on Continuance Motion 54.9
      • 4. Allowing Depositions 54.10
      • 5. Awarding Costs 54.11
      • 6. Jury Fees 54.12
      • 7. Consideration of Ruling on Appeal 54.13
      • 8. Effect of Failure to Make Motion for Continuance on Motion for New Trial 54.14
    • B. Criminal Cases 54.15
      • 1. Conditional Examination of Witnesses 54.16
      • 2. Writ Review 54.17

55

Extraordinary Writs

  • I. INTRODUCTION 55.1
  • II. USUALLY NOT OBTAINABLE TO CORRECT RULINGS ON EVIDENCE 55.2
  • III. WHEN OBTAINABLE
    • A. To Enforce Privilege 55.3
    • B. To Protect Right to Privacy 55.4
    • C. To Stay Contempt Order 55.5
    • D. To Overcome Shield Law Order 55.6
  • IV. OTHER EXCEPTIONS 55.7

56

Motion for Mistrial

  • I. INTRODUCTION 56.1
  • II. GROUNDS
    • A. Irreparable Prejudicial Incident 56.2
    • B. Irregularity in Proceedings 56.3
  • III. TRIAL JUDGE'S DISCRETION 56.4
  • IV. TACTICAL CONSIDERATIONS 56.5
  • V. PROCEDURE
    • A. Irreparable Prejudicial Incident
      • 1. Incident Constituting Misconduct 56.6
      • 2. Incident Not Constituting Misconduct 56.7
    • B. Irregularity in Proceedings 56.8

57

Contempt

  • I. INTRODUCTION 57.1
  • II. DEFINITION 57.2
  • III. TYPES OF CONTEMPT
    • A. Direct, Indirect, and Hybrid Contempt 57.3
    • B. Civil and Criminal Contempt 57.3A
  • IV. COMMON EXAMPLES OF CONTEMPTUOUS TRIAL CONDUCT 57.4
  • V. PROCEDURE
    • A. Who Can Bring and Punish Contempt? 57.5
    • B. Procedures Under CCP §1209
      • 1. Direct Contempt 57.6
      • 2. Indirect Contempt 57.7
      • 3. Hybrid Contempt 57.8
      • 4. Sentence 57.9
    • C. Procedures Under Pen C §166 57.10
    • D. Stay of Contempt Sentence 57.11
  • VI. REVIEW BY APPELLATE COURT 57.12

About the Authors

Edwin A. Heafey, Jr. was a Director in the California firm of Crosby, Heafey, Roach & May, with offices in Oakland, San Francisco, and Los Angeles, where he specialized in civil litigation in both state and federal courts. He was a graduate of Stanford Law School. Mr. Heafey was a member of the American College of Trial Lawyers, a member and past president of the American Board of Trial Advocates, and a member of the International Society of Barristers. He taught trial practice at University of California, Berkeley, School of Law, for 17 years. Mr. Heafey had been listed in The Best Lawyers in America (Woodward/White, 1987–2000).

Stephen G. Blitch was a partner in Crosby, Heafey, Roach & May (where the late Ed Heafey was his esteemed colleague and good friend) and later Reed Smith LLP. He tried dozens of civil cases in state and federal courts throughout California and in several other states. Mr. Blitch lectured frequently on the subjects of trial evidence and trial practice, and taught at the National Institute for Trial Advocacy (NITA). He left his active law practice in 2010 and practiced mediation until 2016 with ADR Services, Inc. He is a graduate of the University of California, Berkeley, College of Environmental Design (Architecture) and the University of California, Berkeley, School of Law. Mr. Blitch was a Fellow of the American College of Trial Lawyers and a member of the American Board of Trial Advocates (ABOTA), the Association of Business Trial Lawyers, a member of the Alameda County Bar Association and past chair of its Trial Practice Section, a member of the Litigation Section of the California State Bar Association, and a member of the Bar Association of San Francisco.

Marshall C. Wallace is a partner in the firm of Allen Matkins Leck Gamble Mallory & Natsis LLP. He is a civil trial lawyer, focusing on complex business cases, including business tort, unfair competition, real estate, financial services, insurance, and land use litigation. He has handled dozens of jury trials, bench trials, arbitrations, expedited injunction proceedings and class actions. He graduated from the University of California, Berkeley, in 1986, receiving a J.D. degree from the School of Law and an M.B.A. degree from the School of Business. He graduated summa cum laude and Phi Beta Kappa from Princeton University's School of Engineering and Applied Science in 1981. Mr. Wallace is a member of the Association of Business Trial Lawyers, the Trial Practice Section of the Alameda County Bar Association, and the Litigation Section of the California State Bar Association.

Keith D. Yandell is the General Counsel at DoorDash, Inc., in San Francisco. He co-founded the litigation group at Uber Technologies, Inc., where he worked as Director of Litigation. Prior to that, Mr. Yandell was a partner at the firm of Allen Matkins Leck Gamble Mallory & Natsis LLP, in the firm's Litigation Department. He earned a degree in political science (with Highest Honors) from the University of California, Davis, and his law degree from the University of California, Los Angeles, School of Law. Mr. Yandell has lectured on a wide variety of topics including the Truth in Lending Act, RESPA, California's Unfair Competition Law, and certification of class actions. Mr. Yandell's extensive courtroom experience includes a five-week trial in which he obtained a jury verdict in his clients' favor and a seven-figure damages award, including an award of punitive damages.

Selected Developments

June 2017

Attorney-Client Communications

In In re Grand Jury Subpoena (9th Cir 2016) 828 F3d 1083, the Ninth Circuit held that a state official in his personal capacity may not claim the attorney-client privilege as to communications with state attorneys on issues of potential conflicts of interest; only the state may claim that privilege. See §34.11.

In the first case to consider the exception to the attorney-client privilege for communications relevant to an issue between parties claiming through the same deceased client under Evid C §957, the court held that the exception does not apply in a "hybrid situation" involving claims both through and against the deceased client and his estate. DP Pham LLC v Cheadle (2016) 246 CA4th 653. The court in DP Pham also found that the trial court failed to follow the rule that courts may not review the contents of a communication to determine whether the attorney-client privilege protects that communication. See §§34.18, 34.23.

The court in Catalina Island Yacht Club v Superior Court (2015) 242 CA4th 1116 held that a court confronted with a privilege log that does not include the necessary information to rule on attorney-client and work product objections may order the responding party to provide a further privilege log but it may not order the privileges waived based on serving a deficient privilege log. See §33.9, 34.22A.

Confrontation

The California Supreme Court applied the U.S. Supreme Court decision in Crawford v Washington (2004) 541 US 36, 59, 124 S Ct 1354, to determine that a police report and STEP notice were testimonial. People v Sanchez (2016) 63 C4th 665. See §19.9B.

Expert Witnesses

The California Supreme Court has held that, although an expert may rely on hearsay in forming an opinion, an expert cannot "relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." People v Sanchez (2016) 63 C4th 665. The court explained that a limiting instruction requiring the jury not to consider such testimony for its truth would not avoid hearsay problems, because the jury must consider expert basis testimony for its truth to evaluate the opinion. See §20.9.

Hearsay Exceptions; Admissions

The California Supreme Court in People v Clark (2016) 63 C4th 522 held that defendant forfeited his claim that insufficient evidence was presented to support a prima facie case of the existence of a conspiracy under the exception to the hearsay rule for the admissions of co-conspirators in Evid §1223 because he failed to raise it at trial. See §19.16.

In Transbay Auto Serv. v Chevron USA (9th Cir 2015) 807 F3d 1113, the court held that a party acting in conformity with the contents of a document constitutes adoption of the statements in that document even if the party never reviewed them. See §19.14.

The court in In re Auto. Antitrust Cases I & II (2016) 1 CA5th 127 found that meeting minutes were a "textbook example" of an adoptive admission; by engaging in the review and revision process, the party clearly manifested belief in the accuracy of the records. See §19.14.

Misconduct

In Bigler-Engler v Breg, Inc. (2016) 4 CA5th 1031, plaintiff's counsel committed several acts that constituted misconduct but some were forfeited for failure to timely object and the others were not sufficiently egregious to cause prejudice. See §§29.9, 29.11.

Lay Opinion

A lay witness may recount his impressions and conclusions based on participation in meeting as a percipient witness. See In re Auto Antitrust Cases I & II (2016) 1 CA5th 127 in §20.4.

A trial court permitted lay opinion on the appearance of hay bales but properly excluded such testimony on where the bales came from because plaintiff could not show that her opinions on the appearance of hay bales had any rational basis. Osborne v Todd Farm Servs. (2016) 247 CA4th 43. See §§20.4.

Psychotherapist-Patient Privilege

As part of its investigation of defendant psychiatrist, the Medical Board sought patient records. The court found that those records were protected by the psychotherapist-patient privilege and the exception for breach of psychotherapist-patient duty was inapplicable because the patient did not complain of her treatment by defendant and expressly asserted the privilege. Kirchmeyer v Phillips (2016) 245 CA4th 1394. See §37.12.

Unduly Prejudicial Evidence

In People v Snyder (2016) 1 CA5th 622, defense counsel's failure to specify at trial which exhibits should and should not have been admitted precluded the trial court from weighing the probative and prejudicial values of the exhibits. As a result, counsel forfeited his argument based on the existence of an evidentiary alternative. See §31.8, 31.17.

If a party believes that the trial court misunderstands the nature of the theory on the evidence and thus cannot appreciate the potential for undue prejudice in admitting the evidence, that party must alert the trial court to this error in reasoning; the determination of whether the trial court abused its discretion is based on what the court was made aware of at the time it ruled on the motion. People v Fruits (2016) 247 CA4th 188. See §31.16.

Evidence of prior misconduct involving domestic violence was improperly allowed to be used in a way that "was highly inflammatory and was not specifically relevant to the purpose for which the past incident of domestic violence was admitted. See People v Disa (2016) 1 CA5th 654 in §32.7.

Work Product Doctrine

The court in Catalina Island Yacht Club v Superior Court (2015) 242 CA4th 1116 held that a court confronted with a privilege log that does not include the necessary information to rule on attorney-client and work product objections may order the responding party to provide a further privilege log but it may not order the privileges waived based on serving of a deficient privilege log. See §35.8.

Products specifications
PRACTICE AREA Civil Litigation & Torts
PRACTICE AREA Evidence
PRODUCT GROUP Publication
Products specifications
PRACTICE AREA Civil Litigation & Torts
PRACTICE AREA Evidence
PRODUCT GROUP Publication