Crime-Fraud Exception ACpriv ceases to operate when the desired advice refers – but to (Zolin) Does not extend to not to prior wrongdoing, future wrongdoing – advice for the commission of a crime or fraud review to determine presence of privilege may be triggered on good In camera faith showing Corporate Clients Employees acting at the direction of their superiors (or acting within the scope of corporate duties) may be considered clients of corporate in-house counsel (UpJohn) Work Product Privilege Documents prepared in contemplation of litigation Unless there is a showing of substantial need and inability to procure the same info without undue hardship Trial Mechanics Witness Competence Relevance Physical Evidence Hearsay/Nonhearsay Confrontation Not Hearsay OPS, PIS, PCS, PI – Hearsay Exceptions PSI, EU, State of Mind, Injury Report, Recorded Recollection – Hearsay Exceptions Business Record, Public Record – Hearsay Exceptions Witness Unavailable, Prior Testimony – Exceptions Dying Declaration, Statement against Interest, Forfeiture by – Exceptions Residual Exception, Due Process – Character Evidence Impeachment Rehabilitation Forbidden Inferences Experts/Opinion Evidence Scientific Evidence Statistics – Scientific Evidence Experts – TRIAL MECHANICS FRE 104(a) Court decides any about whether preliminary question – A witness is qualified, privilege exists, evidence is admissible And in deciding, except for is not bound by evidence rules, privilege Standard is preponderance of the evidence FRE 103 When objection is preserved (admitted: timely, stating grounds; correct – excluded: offering proof of substance) Abuse of discretion; otherwise Plain error FRE 611
Crime-Fraud Exception – ACpriv ceases to operate when the desired advice refers not to prior wrongdoing, but to future wrongdoing (Zolin) – Does not extend to advice for the commission of a crime or fraud In camera review to determine presence of privilege may be triggered on good faith showing Corporate Clients Employees acting at the direction of their superiors (or acting within the scope of corporate duties) may be considered clients of corporate in-house counsel (UpJohn) Work Product Privilege Documents prepared in contemplation of litigation Unless there is a showing of substantial need and inability to procure the same info without undue hardship Trial Mechanics Witness Competence Relevance Physical Evidence Hearsay/Nonhearsay Confrontation Not Hearsay – OPS, PIS, PCS, PI Hearsay Exceptions – PSI, EU, State of Mind, Injury Report, Recorded Recollection Hearsay Exceptions – Business Record, Public Record Hearsay Exceptions – Witness Unavailable, Prior Testimony Exceptions – Dying Declaration, Statement against Interest, Forfeiture by Exceptions – Residual Exception, Due Process Character Evidence Impeachment Rehabilitation Forbidden Inferences Experts/Opinion Evidence Scientific Evidence – Statistics Scientific Evidence – Experts TRIAL MECHANICS FRE 104(a) – Court decides any preliminary question about whether A witness is qualified, privilege exists, evidence is admissible And in deciding, is not bound by evidence rules, except for privilege Standard is preponderance of the evidence FRE 103 – When objection is preserved (admitted: timely, stating correct grounds; excluded: offering proof of substance) Abuse of discretion; otherwise Plain error FRE 611
Evidence%20Murphy%20Fall%202013.docx