Legal Three

Federal Rules of Evidence – Scientific Evidence & Privileges Intro

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Federal Rules of Evidence Law School Supplements

Federal Rules of Evidence Law School Supplements

 

Reliability Standard for Scientific And Other Technical Evidence

 

1. Defining a Standard:

  • American courts used to require that evidence offered as science satisfy a special standard needed to be “generally accepted” in the pertinent scientific community
  • Daubert Case comes along and changes this then FRE 702 was amended in response and so “it formally requires expert testimony to rest on sufficient facts or data, reflect reliable principles and methods, and reliably apply these principles and methods.”
  • Daubert v. Merrel Dow Pharmaceuticals (US Supreme Court, 1993):
    • Facts:
      • Child have birth defects and parents sue D arguing that mother’s ingestion of their anti-nausea drug caused birth defects in children
      • D moved for SJ and submitted expert affidavit that said he’s studied 30 studies and non found drug to cause birth defects
      • P submitted counter affidavit from it’s expert but TC granted SJ on grounds that scientific evidence is admissible only if principle on which it is based is “sufficiently established to have general acceptance in the field to which it belongs”
        • Court didn’t think P’s evidence met this standard
    • Legal Issue:
      • What is the standard for admitting expert scientific testimony in a federal trial? General acceptance is NOT a necessary precondition to admissibility of scientific evidence under FRE, but trial judge must ensure that expert’s testimony rests on reliable foundation and is relavant
    • Holding/Rationale:
      • Rule 702:
        • Rule provides “if scientific, technical or other specialized knowledge will assist trier of fact to understand evidence or determine fact in issue, a witness qualified as an expert by knowledge, skill…may testify in form of an opinion.”
        • Nothing in rule establishes “general acceptance” as an absolute prerequisite to admissibility
      • Limitations of FRE:
        • Witness must have knowledge—not to certainty—that is derived from scientific method
        • 702 also requires that evidence or testimony “assist the trier of fact to understand the evidence or determine fact in issue” this goes to relevancy
      • Considerations to Admissibility of Expert Scientific Testimony:
        • Trial judge must determine, pursuant to FRE 104(a), whether the expert is proposing to testify to:
          • 1) scientific knowledge that
          • 2) will assist the trier of fact to understand or determine a fact in issue
        • This requires looking at whether expert applied scientific method to reaching conclusion publication is also a good sign b/c it permits flaws to be detected by scientific community
    • Class Notes:
      • NO longer are punting this to general scientific community
      • Must be relevant and reliable and TC must make that determination
      • Court doesn’t think there is anything in 702 that mandates general acceptance but that doesn’t mean there aren’t limits on admissibility of scientific evidence
      • You still need:
        • 1) Scientific evidence must rest on a reliable foundation (i.e. it must be based upon sufficient facts or data and be the product of “reliable” or “trustworthy” principles and methods)
        • 2) The scientific evidence must be relevant to the task at hand (i.e. it will assist the trier of fact to understand or determine a fact in issue); and the witness must apply the principles and methods reliably to the facts of the present case
        • 3) The proffered scientific evidence remains subject to scrutiny under FRE 403 and 703
      • Daubert sets standard for all expert testimony in federal courts and many factors bear on reliability (not limited to these):
        • 1) whether theory is generally accepted in scientific community
        • 2) whether proposed theory can/has been tested
        • 3) whether the theory/subject has been the subject to peer review and publication
          • Mere publication doesn’t show reliability
          • It must be peer-reviewed publishing where people in industry review it before it gets officially published
        • 4) the known or potential rate of error of technique or theory when applied
        • 5) the existence and maintenance of standards and controls
      • Daubert Challenge:
        • Evidence must be reliable and relevant BUT this doesn’t mean you have to prove your case twice
        • LOTS of challenges and approximate 42% excluded testimony in part
  • Kumho Tire Company, Ltd v. Carmichael (US Supreme Court, 1998):
    • Facts:
      • P (Charmichael) sues tire maker after tire blew out and caused accident that killed one of the passengers
      • P gets expert that finds blowout was caused by defect not inadequately repaired tread punctures
      • TC ruled that the expert testimony was inadmissible b/c methodology failed realibility requirement of FRE 702 and Daubert
        • P appealed contending that Daubert applies to scientific evidence NOT expert testimony generally
    • Legal Issue:
      • Does Daubert apply to scientific evidence only and not expert testimony in general?
      • Does ruling apply to only “scientific” testimony or all expert testimony? ALL EXPERT TESTIMONY
    • Holding/Rationale:
      • Daubert:
        • Court held that FRE 702 imposes special obligation upon trial judge to “ensure that any and all scientific testimony, is not only relevant, but reliable.”
        • Daubert referred only to “scientific” knowledge BUT FRE 702 and 703 grant expert witnesses testimonial latitude on assumption that expert’s opinion will have reliable basis in knowledge and experience of his discipline
        • “In Daubert this Court focused upon the admissibility of scientific expert testimony. It pointed out that such testimony is admissible only if it is both relevant and reliable”
        • 104(a) determination
      • Factors:
        • P wanted judge to consider non-Daubert factors that might bear on judge’s gatekeeping determination:
          • 1) Whether a theory or technique can be tested
          • 2) Whether it has been subjected to peer review and publication
          • 3) Whether, in respect to a particular technique, there is a high “known or potential rate of error” and whether there are “standards controlling the technique’s operation”, AND
          • 4) Whether the theory or technique enjoys “general acceptance” within a “relevant scientific community”
        • Court thinks Daubert factors are not exhaustive
      • Application:
        • Even though court considers other factors that would make P’s expert’s testimony reliable they don’t think it was reliable based on these factors and uphold TC determination
    • Takeaway Principles:
      • Rule 702 grants the district judge the discretionary authority, reviewable for its abuse, to determine reliability in light of the particular facts and circumstances of the particular case
    • Standard:
      • The appropriate standard an appellate court should apply in reviewing a trial court’s decision to admit or exclude expert testimony is the abuse of discretion standard.
  • NEW RULE:
    • You used to be able to discover communications between expert and attorney
    • Drafters of the rules changed discovery to shield these improper communications
      • Rule 26 of FRCP will be amended Dec. 1 to protect this information
      • Amendments purport to apply work product protection to expert and lawyer communications as well as draft reports with exceptions
        • Be CAREFUL though, because under rules it seems some could still be produceable
        • Rules make it clear that you may still discover all documents expert created
  • Novel Approach:
    • Expert hot-tubbing
      • Both experts are sworn simultaneously and they briefly give opinions and then they have dialogue in front of jury
      • Maybe this means they’ll be less likely to take extreme positions

 

Introduction to Privileges—Attorney Client Privileges:

  • Introduction:
    • Privileges protect certain relationships and values even if such protection imposes significant costs on the litigation process
    • Congress had trouble agreeing on privilege rules (13 they drafted) so instead adopted FRE 501, under which privileges are matters of common law developed in light of “reason and experience” BUT congress barred the Court from adopting privilege rules on its own

Attorney-Client Privilege:

  • Reasons for the Privilege/Other Notes:
    • If the attorney were able to or had to disclose everything said by the client there would be no confidence placed in information told to the attorney
    • Compulsory process clause of 6th Amendment provides that D in criminal case has right to “compulsory process for obtaining witness in his favor”
      • This clause, along with confrontation clause, create a constitutional right to present a defense
    • Attorney Client privilege survives death of client
  • Professional Services:
    • Privilege applies only to confidential communications made for purpose of rendering professional legal services to the client often however, attorneys are consulted for other advice in addition to legal advice
    • Taxes: Accounts are not covered by privilege in preparing tax returns, so it makes little sense to let taxpayer invoke privilege merely b/c he hired attorney—according to Court
  • 501:
    • Says privileges will be defined by common law
  • Class Notes on Attorney-Client Privilege:
    • Duty to maintain confidentiality
    • Attorney-client relationship is consensual
    • Relationship formed when client reasonably believes the relationship is formed
    • Attorney Client Privilege v. Duty of Confidentiality:
      • If for example you find through your investigation that your client is being sued in negligent auto case has in fact been convicted of child molestation in the past (through public records) You CANNOT go around and talk about that
      • That’s because duty of confidentiality is much broader than attorney-client privilege which wouldn’t prohibit you from giving out that information
      • Duty of confidentiality mandates that attorney not relay info (even perhaps public info) about client
      • Attorney Client Privilege:
        • Even if someone isn’t attorney but you speak to them believing they are an attorney the privilege still exists
        • However even if someone is attorney that doesn’t mean that every conversation they have is privileged
      • Who Holds the Privilege?
        • If you represent the company, the company holds the privilege
      • Applies only to confidential communications between lawyer and client but can be broader to include paralegal and other assistants
    • Problem 12-B:
      • No privilege applies to discussion of trial date
      • Lawyer is not providing legal services but merely acting as conduit for transmission of information
    • Problem 12-C:
      • Most courts would say that this isn’t legal services so the attorney would have to testify
        • Client walked in, he was clearly drunken, when he leaves the attorney witnesses him crashing into another car. The atty/client is to protect “communications” NOT “observations”
        • BUT could an Atty be forced to testify on the mental capacity of a Criminal Case Defendant? Prob not, this is a conclusion based on the entire representation of his client
    • Records:
      • If you bundle records and hand them to lawyer that doesn’t make them privilege can’t make otherwise nonprivileged documents privilege
  • People v. Meredith (Supreme Court of CA, 1981):
    • Facts:
      • Ds Scott and Meredith appeal from murder conviction and robbery of Wade M’s conviction rests on eyewitness testimony that he shot and killed W
      • S’s conviction = based on conspiracy w/ M and O prosecution sought to show place where victim’s wallet was found to support this theory
      • S had told 1st attorney about how he collected wallet and attorney gets it attorney is subpoenaed and says where he got wallet but says other info is privileged communication
      • It was unethical to get the wallet, because the Client Never said go get the wallet. Attorney should have ASKED the client before going to get the wallet.
      • What are Client Decisions vs Attorney Decisions? Rules are kinda BS…ALWAYS check with your client before you do things
    • Legal Issue:
      • Was attorney’s disclosure appropriate?
      • Does the privilege encompass a case in which the defense, by removing or altering evidence, interferes w/ the prosecution’s opportunity to discover the evidence? NO NOT PRIVLEGED TC did not err in admitting investigator’s testimony concerning location of wallet sergeant
    • Holding/Rationale:
      • Section 954 of Evidence Code:
        • Provides that “the client has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer.”
        • Attorney’s disclosure to investigator he hired to find wallet wasn’t waiver of privilege b/c it was “reasonably necessary” to transmit info to perform services for client
      • Removing/Altering Evidence:
        • In doing so, defense effectively deprives P opportunity to protect privilege in this instance would encourage hiding of evidence
        • Courts must therefore craft exception to protection extended by attorney-client privilege in cases in which counsel has removed or altered evidence
        • THEREFORE: whenever defense counsel removes or alters evidence, the statutory privilege does not bar revelation of original location or condition of evidence in question
    • Class Notes:
      • Would be classified if attorney hadn’t touched wallet
      • There could only be one reason to go and dig up the knife under the willow tree: If you think its evidence that will help your client, if youre just doing it to confirm that your client did it, that is just dumb (that is what happened above)
  • Required Confidentiality:
    • United States v. Kovel (US Court of Appeal for 2nd Circuit, 1961)
      • Facts: WHAT???
        • Appeal from sentence for criminal contempt for refusing to answer question asked in course of inquiry by grand jury
        • Kovel = former IRS agent w/ accounting skills now employed by law firm specializing in tax law govt was investigating tax violation by firm’s client and K was subpoenaed
      • Legal Issue:
        • How does the attorney-client privilege apply to a non-lawyer employed by law firm? Privilege extends (for the most part)
      • Holding/Rationale:
        • Extension of Privilege:
          • “The assistance of agents being indispensable to his work and the communications of the client being often necessarily committed to them by attorney or by client himself, the privilege must include all persons who act as attorney’s agent”
          • Non-lawyer w/ accounting skills might be necessary to proper representation of client b/c attorney may not have any knowledge/expertise in accounting this shouldn’t destroy privilege
        • Rule:
          • What is vital to privilege is that communication be made in confidence for purpose of obtaining legal advice from lawyer
      • Class Notes:
        • Sometimes the lawyer needs help so privilege isn’t so narrow-minded that it only includes lawyer
        • What if a lawyer destroys and conceals evidence? That lawyer should be punished!
  • Joint Clients and Pooled Defenses:
    • If 2+ clients retain or consult the same attorney w/ respect to matters of common interest, the communications made between the joint clients and the attorney are privileged w/ respect to outsiders
      • THEREFORE joint client can communicate w/ an attorney in presence of another joint client w/out destroying confidentiality
    • In representing multiple clients on single matter, lawyer shall provide “explanations of the implications of the common representations and the advantages and risks.”
  • Pooled Defense Arrangement:
    • L1 is representing A and L2 is representing B
    • Can A and B get in room with L1 and L2 and have conversation that is still privilege?
      • Yes, this is known as pooled defense.
      • Don’t do this unless you have pooled defense agreement that stated that everyone would comply
  • Problem 12-D:
    • 1) NO less protection because attorney is representing joint clients
    • 2) Privilege is lost when joint clients have falling out and engage in lititgation against each other
    • 3) Sustained, common interest would prevail and hold it to be privileged
  • Client Identity:
    • Generally not privileged
    • Paying IRS case = client identity was confidential
      • Client is attempting to rent confidentiality from lawyer
  • Surburban Sew ‘N Sweep v. Swiss Bernina (1981):
    • Facts:
      • Sewing machine retailers sue manufacturer Swiss (D) alleging antitrust violations
      • To make case P searches dumpster outside D’s office and finds drafts of confidential letters from president of company to lawyer
      • DC said property in garbage isn’t protected by 4th amendment
    • Legal Issue:
      • Were letters protected by privilege?
    • Holding/Rationale:
      • Traditional Rule v. Modern Approach:
        • Old Rule = Placed near absolute responsibility for maintaining confidentiality on parties to communication
        • New Rule = Client must take all possible precautions to insure confidentiality
      • Application:
        • This case lies between the inadvertent disclosure cases where info transmitted in public or otherwise clearly not adequately safeguarded, and involuntary disclosure cases, where info is acquired by 3rd parties in spite of all possible precautions
      • Adequacy of Precautions Taken:
        • In determining whether precautions taken were adequate, there are 2 considerations:
          • 1) The effect on uninhibited consultation between attorney and client of not allowing the privilege in these circumstances; and
          • 2) The ability of the parties to the communication to protect against the disclosures
        • Application If parties were really concerned w/ confidentiality they should have taken SOME precaution but they took NONE
          • Documents are NOT protected by attorney-client privilege
    • Class Notes:
      • Court finds that D didn’t take enough precautions to get rid of documents and therefore waived privilege
  • The Corporate Client:
    • Class Notes:
      • Used to be control group rule
    • Can you represent two parties? Yes, as long as they are not adverse
      • If they do become adverse privilege is lost
      • Yes, the two parties can talk if they have a Joint Defense Agreement
    • Upjohn Co. v. United States (United States Supreme Court, 1981):
      • Facts:
        • Independent accountants conducting audit of one of Upjohn’s subsidiaries discovered that they’d made payments to foreign govt for procurement of govt business
        • General Counsel for P sends out questionnaire to managers/staff and then submits report to IRS IRS then demands responses to questionnaires
        • Company declined to produce docs on grounds that they were protected by attorney-client privilege and constituted work product of attorneys prepared in anticipation of litigation
          • DC said summons applied
      • Legal Issue:
        • What is the scope of the attorney-client privilege in the corporate context and what is the applicability of the work-product doctrine in proceedings to enforce tax summonses?
      • Holding:
        • Court concludes that the attorney-client privilege protects the communications involved in this case from compelled disclosure and that the work-product doctrine does apply in tax summons enforcement proceedings
      • Rationale:
        • Extent of Attorney Client Privilege:
          • Applies to giving of professional advice and giving of info to lawyer to enable him to give sound advice
          • Court previously said in corporate context privilege would apply to only senior management this threatens to limit efforts of counsel
          • Court THEREFORE extends privilege to questionnaires
        • Attorney Memos/Notes from Interviews Work-Product Doctrine:
          • FRCP Rule 26(b)(3) codifies work product doctrine
          • Work product cannot be disclosed simply on showing of substantial need and inability to obtain the equivalent w/out undue hardship Need FAR stronger showing
      • Person claiming privilege has to satisfy the burden
      • Privilege Log:
        • For withholding documents, describes who document was to and from and why it’s privileged Federal Law
      • CA Law:
        • Party asking for privilege only has to give facts supporting prima facie case of privilege
        • If this is done then party opposing burden must bear burden showing that claimed privilege doesn’t exist
        • Standard of Review: Lower court REALLY has discretion
      • In Camera Inspection:
        • Ask trial judge or special master to review documents outside of presence of parties to see if they’re privilege
    • You don’t have to have confidential communications containing confidential information
    • Drafts of Documents:
      • Just because you file and make public final document, doesn’t mean you waive privilege of other drafts
    • CA continues to protect confidential communications after death
    • Problem 12-E:
      • Can appeal privilege decision through writ of mandamus and defendant will be Superior Court
  • Exceptions to Coverage:
    • General Notes:
      • Exceptions:
        • 1)Suits between client and lawyer if client sues for malpractice, she cannot invoke privilege to keep lawyer from proving whatever was said on either side (and vice versa)
        • 2) Lawyer who acts as attesting witness on document executed by client
        • 3) Name of client/attorney and whereabouts
        • 4) Communication in furtherance of crime or fraud
    • In Re Osterhoudt (US Court of Appeals for Nonth Circuit, 1983):
      • Fact:
        • Govt subpoenaes info about legal fees Phaksuan paid to his attorney (Osterhoudt) Phaksuan moves to quash and appeals denied motion
      • Legal Issue:
        • Did the communications fall within an exception to the general rule barring disclosure where “a strong public policy exists that disclosure of such info would implicate that client in the very criminal activity for which legal advice was sought?” NO
      • Holding/Rationale:
        • General Rule:
          • Identity of attorney’s clients and nature of his fee arrangements w/ his clients are not confidential communications protected by attorney client privilege
        • Possibility of Exception:
          • Court thinks info falls outside scope of privilege b/c info ordinarily reveals no confidential communication btwn attorney and client NOT b/c info may not be incriminating
          • “The name of the client will be considered privileged matter where the circumstances of the case are such that the name of the client is material only for the purpose of showing an acknowledgement of guilt on the part of such client of the very offense on account of which attorney is employed NOT B/C INFO is incriminating
        • Application:
          • Info in this case might be incriminating but it was NOT acknowledge of guilt on part of client for offense for which attorney was employed
    • Other Examples:
      • 1) Lawyer returns stolen property on behalf of unnamed client
        • Attorney-client privilege inapplicable to identity of client who hired attorney to return stolen typewriter
      • 2) Lawyer reports illegal misdeeds or misconduct by some 3rd person on behalf of an anonymous client
        • Privilege applies
      • 3) Lawyers represents person charged w/ crime but is hired and paid by anonymous 3rd party
        • Privilege denied No contention that fee payer was current or former client
    • United States v. Zolin (Unted States Supreme Court, 1989):
      • Facts:
        • IRS investigates Ron Hubbard and seeks documents filed under seal n LA court un unrelated church litigation IRS brings suit against court clerk (Zolin) to get material
        • Church/Hubbard claim material is privileged IRS claims crime-fraud exception applied to tapes they wanted
      • Legal Issue:
        • What type of evidence may be used to make ultimate showing of crime-fraud exception?
        • Can the DC, at the request of the party opposing the privilege, review allegedly privileged communications in camera to determine whether the crime-fraud exception applies? YES
        • If such camera review is permitted, the 2nd question is whether some threshold evidentiary showing is needed before DC court may undertake requested review?
      • Holding/Rationale:
        • Material OK to Make Showing:
          • Rule 104(a): “Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by court…In making its determination it is not bound by rules of evidence except those w/ respect to privileges.”
          • Old interpretation was that possibly privileged material couldn’t be reviewed b/c it was privileged
          • Now court says that Rule 104(a) does NOT say that all material as to which a claim of privilege is made must be excluded from consideration therefore in camera review OK
        • Does party seeking in camera review need to make threshold showing?
          • There are burdens on court associated w/ in camera review therefore some showing necessary
          • Standard = Before engaging in in camera review to determine the applicability of crime-fraud exception, the judge should require a showing of a factual basis adequate to support a good faith belief by a reasonable person that in camera review of materials may reveal evidence to establish the claim that the crime-fraud exception applies. then court has discretion
    • NOTE on CA Evidence Code:
      • “The presiding officer may NOT require disclosure of information claimed to be privileged under this division in order to rule on the claim of privilege.”
  • Assertion and Waiver:
    • General Notes:
      • Client must claim privilege at the right moment or risk losing its protection
      • Attorney cannot claim privilege if client wants to disclose
    • Asserting the Privilege:
      • Client decides and may claim privilege independently or through lawyer who will then be required to assert on client’s behalf unless she waives privilege
      • Privilege claimant bears burden on establishing entitlement
        • Court should resolved this problem under 104(a)
    • Appellate Review of Privileges:
      • Sometimes party can intervene to say that have privilege (because generally they might not be indicted yet)
      • Ordinarily rules on evidence issues are interlocutory and cannot be reviewed until final judgment BUT sometimes possible when dealing w/ attorney client privilege
    • Waiver:
      • Rule = generally privilege is waived if its holder “voluntarily discloses or consents to disclosure of any significant part of the matter or communication,” except that a privilege is NOT waived if “the disclosure is itself” privileged
        • Privilege NOT waived if lawyer discloses info w/out client’s consent
        • 502(a) deals with intentional disclosure
        • 502(b) deals with inadvertent disclosure
    • Rule 502 Deals with Waiver:
      • Resolves some disagreements about inadvertent disclosure
      • New rule doesn’t alter federal or state law about whether matter is protected by attorney client privilege

Problems

  • 12-B:
    • In furtherance of crime so attorney must talk
  • 12-C:
  • 12-D:
    • 1) Joint clients, information is privileged
      • Clients should have a Joint Defense Agreement
      • Privilege is lost when clients have a falling out and become adverse
    • 2) 503(d)(5) would say privileged and so would most courts
    • 3) No privilege because information was said to Thomas not Ullman
  • Jaffey:
    • Facts:
      • Police officer is being sued for wrongful death she shot guy that had butcher knife who didn’t put weapon down
        • Other story is that he was unarmed
      • She goes to see licensed social worker
      • P’s lawyer seeks information TC judge gives adverse inferences saying that jury is to presume that information in documents damaging
    • Legal Issue:
      • Was the information relayed to social worker privileged?
    • Holding/Rationale:
      • Court finds that privilege should be extended to social worker
      • Dissent-Scalia has problem with the fact that they extend it to social worker and not just therapist
  • Spousal Privileges:
    • 1) Confidential Communications
      • Must be married at time of communication, must be private communication and applies in criminal and civil cases
    • 2) Privilege for Spousal Testimony:
      • Reason for this is to preserve marital relationship and foster family peace
      • In most jurisdictions this applies only in criminal cases and allows spouse of accused to waive privilege
  • Trammel v. United States (United States Supreme Court, 1980):
    • Facts:
      • Trammel was inducted for importing heroin into US and his wife was also indicted as co-conspirator
      • During flight back w/ drugs wife was searched and drugs were found on her she cooperates w/ DEA in return for leniency
    • Holding/Rationale:
      • Wife has opportunity to waive privilege and testify
      • Testifying spouse holds privilege
      • Must have valid, non-sham marriage at time testimony is sought
        • Then even if spouse perceived these events before marriage, privilege still exists
  • Can you ever destroy docs? Yes sometimes, but never destroy crucial documents, eg drafts notes etc could probably be tossed out.
    • Big case, Prof had people going through the trash at the firm looking for old docs
    • Get a good shredder! Diamond cut :))
  • pg 774 Suburban Sow N Sweet
    • Opposition would regularly dumpster dive
  • Privileges DO apply to corporate clients
    • Keep a privilege log, you have the burden of persuasion to show that there is a privilege.

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