RELEVANCE

401 Definition of Relevance

Relevant evidence means evidence having any
tendency to make the existence of any fact of
consequence to determination of the action more
or less probable then w/out the evidence
403 Exclusion of Relevant Evidence
Evidence must be excluded if its probative value
is substantially outweighed by the evidences
Danger of unfair prejudice
Confusion of issues
Misleading the jury
Undue delay / waste of time
Presentation of cumulative evidence
*rule is favor of admissibility
Will a Limiting Instruction work?
Are there Alternate means of proof available
104 Preliminary Questions
(a) Court must decide on preliminary questions
about whether a witness is qualified, a privilege
exists, or evidence is admissible. In so deciding,
court is not bound by evidence rules except
those on privilege.
(b) Relevance That Depends on a Fact: When
the relevance of evidence depends on whether a
fact exists, proof must be introduced sufficient
to support a finding that the fact does exist. The
court may admit the proposed evidence on the
condition that the proof be introduced later.
(a) cuts the jury out, (b) cuts the judge out
Judge cannot rule based on credibility
purely for jury decide if a witness is credible
105 Limited Admissibility
When evidence is admissible for a single party
or purpose and it is admitted, the court, upon
request shall instruct the jury to limit
consideration of the evidence only to its proper
scope
o
You have to request this

RELEVANT, BUT INADMISSIBLE

407 Subsequent Remedial Measures (pure policy
rule)
When measures are taken that would have made
an earlier injury or harm less likely to occur,
evidence of the subsequent measures is not
admissible to prove negligence, culpable
conduct, defect in product or design, or a need
for warning or instruction
Measures taken before the accident are
admissible only protecting measures taken
post-accident
Admissible for impeachment such as (not
exclusive)(if disputed) proving ownership,

control, or feasibility of precautionary measures,

subject to a 403 evaluation
408 Compromise & Offers to Compromise
Evidence of the following is not admissible (for
either party) to prove / disprove the validity or
amount of a disputed claim (must be a dispute)
or to impeach by a prior inconsistent statement
or a contradiction:
(1) Furnishing, promising, or offeringor
accepting, promising to accept, or offering to
accepta valuable consideration in
compromising or attempting to compromise the
claim
(2) Conduct or a statement made during
compromise negotiations about the claim
except when offered in a criminal case and when
the negotiations related to a claim by a public
office in the exercise of its regulatory,
investigative, or enforcement authority
Exceptions: The court may admit this evidence
for another purpose, such as proving a witnesss
bias or prejudice, negating a contention of undue
delay, or proving an effort to obstruct a criminal
investigation or prosecution.
Shields evidence about settlements or offered
settlements and evidence about conduct or
statements and admissions made in
compromise negotiations
Must be in course of settlement negotiations, if
they do not know they are in negotiations then it
is not protected
Does not bar evidence that is otherwise
obtainable through discovery, even if idea to
pursue it is spawned in settlement
Cannot immunize information from trial merely
by bringing it up in settlement
Admissible for other purposes subject to 403
Statements are admissible to prove bias; witness
already settled and now testifies for D.
409 - Offer of Payment Medical Expenses
Evidence of furnishing, promising to pay, or
offering to pay medical, hospital, or similar
expenses resulting from an injury is not
admissible to prove liability for the injury.
Includes transportation to hospital
Protection of 409 does not extend to actions or
statements not directly involved in the
furnishing of medical care or expenses
Admissible for other issues subject to 403
410- Inadmissibility of Pleas & Related Discourse
All statements made in plea bargaining sessions
or related to plea bargaining made to
PROSECUTORS ONLY will not be
admissible
Nolo contendere like a guilty plea but cant
be used against the person in a civil suit
Rule of Completeness 106 if another part of
the statement is admissible and to understand it,
it is necessary to admit this part then it will be
admitted
Admissible for prosecutions concerning perjury

Breaking a plea deal renders it all admissible

411 Liability Insurance
Evidence that party was or was not covered by
liability insurance is not admissible to prove
whether the person acted negligently or
otherwise wrongfully
Admissible for ownership (why insure it if you
dont own it?), agency, control, or proving
witness bias or prejudice
Applies only to liability; no other insurance
Moss says that even raising liability insurance in
a trial will result in an immediate mistrial

CHARACTER & CREDIBILITY

404(A) Character Generally
Character is not admissible to prove action in
conformity therewith NO PROPENSITY
USE
404(a)(1) Character of Accused
Does not apply in civil cases
Can offer evidence of a pertinent trait of
character, but NOT admissible to prove
conformity therewith
Once the door is open the prosecution may
introduce evidence to rebut that trait of character
404(a)(2) Character of Alleged Victim
Does not apply to civil cases
Reputation or Opinion evidence concerning a
pertinent trait of character of the victim
Prosecution may respond to rebut the same once
door is opened or introduce evidence of D
having same trait of character, @ end of (a)( 1)
In homicide case D claim victim is 1st aggressor,
prosecution may introduce evidence of
peacefulness of victim or against D
404(a)(3) Character of Witness
Available in Civil & Criminal trials
Addressed in 607, 608, 609
404(b) Other Crimes or Acts
Not admissible to prove criminal disposition or
propensity
Admissible to prove (not exclusive): Motive,
malice, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, guilty
state of mind.
Requires notice be given of general nature of
extrinsic acts sought to be introduced pre-trial
criminal trials only
Must establish reasonable belief the acts
actually occurred prior to introduction.
Statute of limitations is not a bar to introduction
405 Methods of Proving Character
Only if character evidence is admissible under
404 do you apply 405
405(a) Reputation or Opinion
Reputation or Opinion testimony will always be
admissible if allowed to come in under 404.
405(b) Specific Instances of Conduct

Only admissible when character trait is an

essential element of the claim or defense
Also allowed under cross examination in a
limited way 607, 608
Allows the admission of extrinsic proof
406 Habit; Routine Practice
Evidence of habit or routine practice will be
admissible to prove conformity therewith
Allowed to establish by reputation/opinion or
specific instances sufficient to establish conduct
Judge must be persuaded that the conduct in
question is virtually automatic and has been
repeated many times in the past
Regular Response to Specific Situation
Advisory Committee notes indicate the
drunkenness and fighting are not acceptable
under 406 as habit
412 Rape Shield Laws (Texas version of 412
applies only to civil cases)
Character evidence concerning the victims
sexual disposition is never admissible trumps
404(a)
Character evidence usually allows no specific
instances, but 412 exceptions only allows
specific instances
Criminal cases Character evidence proved
under 405(b) is admissible to prove :
A person other than the accused was the
source of physical evidence (she had sex
with someone else prior)
To prove specific instances of sexual
behavior between D and victim to establish
consent (she and D had sex a lot
consensually)
Civil Cases Sexual predisposition never
admissible; other evidence admissible as above
if the probative value substantially outweighs
danger of harm to victim or unfair prejudice to
any party; Evidence of alleged victims
reputation admissible only if placed in
controversy by the victim (Im not that kind of
girl)(Reverse 403 balancing)(favors
exclusion over admission) FINAL doublecheck on exam what test he puts in
413 Evidence of Similar Crimes Sexual Assault
Admissible (even in prosecutors case in chief)
Prosecution must disclose its intent to use the
conviction 15 days before trial or on good cause
414 Evidence of Similar Crimes Child
Molestation
Admissible (even in prosecutors case in chief)
Prosecution must disclose its intent to use the
conviction 15 days before trial or on good cause
415 Civil Cases Concerning Child Molestation or
Sexual Abuse
Civil case with claim for damages predicated on
the alleged act Evidence of prior similar
crimes Admissible

IMPEACHMENT
607 Who May Impeach
Credibility of the witness may be attacked by
any party, including the party who called the
witness
May not call a witness solely to impeach, if your
purpose is to proffer otherwise inadmissible
evidence.
608(a) Character & Conduct of Witness
Reputation and Opinion
Evidence of witnesses character for truth &
veracity only
Evidence of truthful character is admissible only
after character for truthfulness has been attacked
608(b) Character & Conduct of Witness
Specific Instances of Conduct
Probative Specific Instances concerning the
witness truthfulness or veracity can be probed
on cross-examination no extrinsic evidence is
permitted; must stick with witness answer
May also question a character witness on
cross-examination with specific instance of
conduct concerning the testifying witness
character for truth and veracity
EXTRINSIC EVIDENCE IS

PERMITTED ON CROSS TO PROVE:

BIAS, INTEREST, PREJUDICE, OR
CORRUPTION
609 Impeachment by Evidence of Conviction
609 (a) 609(a)(1) Felony or 609(a)(2) any
crime involving dishonest or false statement
609(a)(1)(B) is REVERSE 403 BALANCING
Evidence of felony conviction not related to
truth or dishonesty are subject to 403
Accused probative value outweighing
prejudicial effect Applies to defendant
Other Witness; prejudice substantially
outweighs probative value
609(B) not admissible if 10 years since the
conviction or release from confinement
could be allowed if probative value
substantially outweighs prejudicial effect
(REVERSE 403)
But more then 10 years old only admissible
if proponent gives adverse party advance
notice
609(b) does not apply to 609(a)(2) crimes
613 Prior Statement of Witnesses
May question witness concerning prior
statement inconsistent w/ testimony, and
proponent does not need to disclose to the
witness

EXTRINSIC EVIDENCE OF
INCONSISTENT PRIOR STATEMENT
WILL ONLY BE ADMISSIBLE IF
WITNESS IS AFFORDED AN
OPPORTUNITY TO EXPLAIN OR DENY
THE STATEMENT
The admissibility is 401/403 question for
determination by the court there is not set rule
Collateral extrinsic evidence is only permitted
on cross-examination
Prior Consistent Statements are admissible
when inferences of improper motive or perjury
have been suggested.
Impeachment by Contradiction
Collateral Extrinsic Evidence is not permitted.
Extrinsic Evidence of contradiction will only be
admissible is it relevant to the trial regardless of
its impeachment use.
Impeachment by Contradiction can be done
with Collateral Evidence subject to limitations
of 608.

the jury to evaluate the expert substantially

outweighs their prejudicial effect reverse
403
If judge determines that the information relied
upon by the expert is incorrect, he may exclude
the evidence even if the type reasonably relied
upon. It would not assist the trier of fact under
702.
704 Opinion on Ultimate Issue
Experts may testify to an opinion concerning an
ultimate issue in the case except in one
circumstance
Experts may not testify to the mental state or
condition of a in a criminal case with an
opinion on the ultimate issue
705 Disclosure of Facts Underlying Opinion
Experts can proffer their opinion and inferences
w/out revealing the underlying data or facts,
however they may be questioned on crossexamination

607
see Impeachment
608

611 Mode & Order of Interrogation

Closed end, narrative questions allowed all the
time
Argumentative & Leading questions allowed
only on cross-examination and hostile witnesses
or adverse parties
Scope of Cross-examination is limited to the
subject matter of direct examination and matter
effecting the credibility of the witness 608(b)
612 Writing used to Refresh Memory
After viewing writing the witness memory gap
disappears the writing does not need to be
admissible b/c testimony is evidence not writing

WITNESS COMPETENCY

901 Requirement of Authentication

Generally requires authentication or
identification as a condition precedent to
admissibility is evidences sufficient to support
that the evidence is what it purports to be.
901(b)(1) Testimony of Witness w/ Knowledge
901(b)(2) Non-Expert Opinion on Handwriting
based on familiarity not acquired for litigation
901(b)(3) Comparison by Trier of F or Expert W
comparing handwritten to authenticated pieces
of writing
901(b)(4) Distinctive Characteristics only one
who knew, medallion fitting together
901(b)(5) Voice Identification can testify that
mechanical recording is voice of party, cannot
base voice identification on the voice IDing
himself
901(b)(6) Telephone Conversations by bill
with registered number from phone company
901(b)(8) Ancient documents 20 years
901(b)(9) Process or system computer
generated documents
The judge determines whether there is some
evidence from which the jury could reasonably
find that the item is what it is claimed to be.
The jury decides if the evidence is actually what
is claims to be
902 Self Authentication

EXPERT EVIDENCE
701 Opinion Testimony by Lay Witness

Opinions must be rationally based, helpful to

clear understanding, not based on knowledge
w/in scope of 702.
Competency rules apply
702 Testimony by Experts
Assist the trier of fact to understand the
evidence or to determine a fact in issue.
Experts can have scientific, technical, or other
specialized knowledge
Expert by: knowledge, skill experience,
education, training, or otherwise
If (1) the testimony is based upon sufficient
facts and data, (2) the testimony is the product
of reliable principles and Methods, and (3) the
witness has applied the principles and methods
reliably to the facts of the case
Anything admissible under 702 has to go
through Daubert, but relaxed application for
non-scientific experts
Daubert Factors:
Theory been tested
Peer review
Error rate know & applied
Degree of acceptance
Trial court has wide discretion to determine who
is an expert and when testimony is admissible
703 Bases of Opinion Testimony by Experts
The facts or data relied upon by expert in
formulating his opinion do not need to be
admissible in evidence if they are of the type
reasonably relied on by experts in that field
when forming opinions
Inadmissible facts or data used to form an
opinion should only be revealed to the jury if the
court decides the probative value in assisting

103 Rulings on Evidence

Error for Appeal must effect a substantial right
of the effected party.
Requires a timely objection on specific grounds
o
Or objection is waived
104 Preliminary Questions
Judge makes all determinations concerning the
admissibility of evidence and legal questions
concerning objections and rules of evidence
Jury decides conditional relevancy points
601 General Rule of Competency
Every person is competent to be a witness
except as otherwise provided
Insanity at time of event or trial
Children w/out sufficient intellectual capacity to
relate transaction ability to understand events
and vulnerability to adult suggestion 401/403
argument
Testators oral statements not allowed, unless
corroborated or called by adverse party
602 Lack of Personal Knowledge
May not testify to a matter unless evidence is
introduced sufficient to support that the witness
has personal knowledge.
Witness must have perceived something relevant
to the case at hand.
Can be proved by witness own statements
Does not address how witness obtained
knowledge.
603 Oath or Affirmation
610 Religious Beliefs or Opinions
Not admissible for purposes of showing that by
virtue of religion they are more or less
reliable/credible
605 Judge Cannot be Witness
606 Juror Cannot be Witness
Except testifying to outside influences on the
jury.

Can inquire about writing on cross and

introduce portions if desired. (adverse party)

EXHIBITS & AUTHENTICATION

No extrinsic proof of authenticity required for

admission
Domestic public Records under Seal
Domestic public records not under seal
Foreign Public Documents
Certified Copies of Public Records
Official Publications
Newspapers & Periodicals
Trade Inscriptions
Acknowledged Documents
Commercial Paper & Related Documents

903 Subscribing Witness Testimony Unnecessary

Testimony of a subscribing witness is
unnecessary to authenticate a writing unless
required by the laws of jurisdiction whose laws
govern the validity of the writing
1002 Requirement of Original
To prove the content of a writing, recording, or
photograph, the original is required
If witness has knowledge about the reality and
does not depend on the document, record, photo
for her testimony She is testifying to
personal knowledge and the original is not of
consequence.
If a party seeks to introduce testimony
specifically about what an item shows or says
then the original must be produced or somehow
authenticated w/in the rules
1001 Definitions
1001(3) Original the actual writing recording
or photo. Photo original negatives and any print
there from. All computer printouts are originals.
Counterparts are originals
1001(4) Duplicates counterpart produced by
same impression
Best evidence rule applies whenever writing,
record, or photo is necessary to or is used to
prove an element of the case, if only incidental
the best evidence rule does not apply. (1004)
1003 Admissibility of Duplicate
Admissibility of Duplicates a duplicate is
admissible to same extent as the original, unless
a genuine question as to authenticity of original
has been raised. And unfair to not require the
original
1004 Admissibility of Other Evidence of Content
Original is not required and other evidence of
the content is admissible if:
Originals lost or destroyed, but not in bad faith
Originals are not obtainable through the judicial
process or procedure
Originals are in possession of opponent who had
notice and failed to produce them
Collateral Matters the writing is closely
related to a controlling issue
1006 Summaries
Contents of voluminous writings, photos,
recordings may be summarized for the court

BURDENS OF PROOF SHORTCUTS

TO PROOF
301 Presumptions
Presumption require the party against whom it is
directed the burden to produce some evidence to
rebut or meet the presumption, but does not shift
any burden of persuasion or proof; which
remains throughout the trial on whom it was
originally cast
201 Judicial Notice of Adjudicative Facts
Only cover Adjudicative (rule upon judicially)
facts: those which normally go to the jury.

Facts not subject to reasonable dispute:

generally known territorially or capable of
accurate and ready determination by resort to
sources whose accuracy cannot be questioned
A court can take notice: by request or its own
action
A party is entitled to a timely hearing to
question the taking of notice on a disputed fact
Jury will take as undisputed in civil cases, not
required to do so in criminal cases.

HEARSAY BASIC RULE

Testimonial Infirmities
Perception
Memory
Sincerity
Narration/clarity
801(c) Hearsay
Hearsay is a statement, other than one made
while the declarant is testifying at trial or
hearing, offered in evidence to prove the truth of
the matter asserted
801(a) Statement an oral or written assertion
or non-verbal conduct of a person intended by
the person as an assertion
nothing is an assertion, unless intended to
be one
If statement is introduced for a reason other than
to prove the truth of the matter asserted, no
hearsay issue
No hearsay issue if statement introduced to
prove notice or awareness
Independent Legal Significance/Legally
Operative Conduct No Hearsay Problem
I accept your offer in Contract Case

I do at a wedding

Assertions of Gifts
State of Mind - the fact the statement is made is
not to prove its truth but to show the state of
mind. Not offered to prove external reality
NO Hearsay Actions speak louder than words.
Impeachment not hearsay
Effect on hearer
Machine Exception machine not declarants so
photos, readouts, videotapes; are not hearsay

801(d) STATMENT NOT HEARSAY

801(d)(1) Prior Statement by Witness
Witness must be on the stand and subject to
cross-examination
Prior Inconsistent Statement
Made out of court
Prior to testifying
Conflicts w/ testimony

Prior Inconsistent Statements made under oath

are admissible as proof of what it asserts
Consistent testimony to rebut accusations of
fabrication or improper motive are admissible as
long as the statement sought to be introduced
was made before the witness would have motive
to falsify his testimony not hearsay so can be
admitted for truth
801(d)(1)(C) Identifications out of court
are admissible
801(d)(2) Admission by Party Opponent
Must proffered against the party who made the
statement.
An exception to the general rule that witness
must testify from personal knowledge (via
adoption, belief).
801(d)(2)(A) personal admission is party
said it, its in. Admission by silence requires:
(1) party heard and understood the statement;
(2) party was able to reply; (3) a reasonable
person would have responded.
801(d)(2)(B) adoptive admission manifestly
adopted or asserted belief in its truth. Silence is
adoptive admission
801(d)(2)(C) Authorized admission made by
a party authorized (context matters a lot) to
represent the party
801(d)(2)(D) Vicarious Admission a
statement by the partys agent or employee
relevant to agency or employment & while in
the scope of agency or employment
801(d)(2)(E) Coconspirator during course
and in furtherance of the conspiracy statements
are excluded from the Hearsay Rule

803 HEARSAY EXCEPTIONS:

DECLARANTS AVAILABILITY
IMMATERIAL
803(1) Present Sense Impression
A statement describing or explaining an event
or condition made while declarant was
perceiving the event or immediately after
Statement must be contemporaneous w/ event
WATCH OUT FOR PAST TENSE
STATEMENTS
Must be made by one who perceived the event
Must describe or explain only this event
Can be an opinion of what declarant perceived
803(2) Excited Utterance
Statement relating to a startling event or
condition while the declarant was under the
stress of excitement caused by the event
Must be startling event
Can be used to corroborate the event actually
happening
Must still be under stress from event, or later
triggered
More liberal relation to event does not have to
be specifically related to startling event

803(3) Then-Existing Mental, Emotional, or

Physical Condition
Statement of existing state of mind, but not
statement of memory or belief to prove fact
remembered not backwards looking (even
part of the sentencecertain parts can be OK
and others notpage 311, problem 6)
I am going to statements & then did go
there
State of mind is not hearsay not offered to
prove external reality doesnt go past 801(c)
Statements of intent to do something or go
somewhere (Hillmon) of declarant only
(Pheaster)
Forward looking statements OK
Backward are not allowed
803(4) Statements for Medical
Diagnosis/Treatment
For treatment or medical history, past or present
symptoms, pain, sensations, general character
and cause of above reasonably pertinent to
diagnosis & treatment
Not necessary to expect treatmentdiagnosis
alone works
Statement to any person who may reasonably
provide treatment or diagnosis

Does not have to be made by injured person,

could be made for them
803(5) Recorded Recollection
Must be made at the time of the event by the
witness when the memory was fresh
Record or memorandum concerning a matter of
which the witness once had knowledge but now
has insufficient recollection to testify; if the
record was made by or adopted by the witness
when the matter was fresh in his mind it may be
read into the record.
Can be exhibit only if offered by an adverse
party
803(6) Records of Regularly Conducted Activity
Business or not purely personal
Records kept as regularly conduct activity
Regular practice
Made at or near the time of event
By or from custodian of the records or other
qualified witness
Johnson v. Lutz each person in the
report chain must have had a duty to make a
report or must fall under hearsay exception
o
So a police report with
eyewitness statements each
witnesses statement must fall
under hearsay exemption
803(7) Absence of Entry in Regularly Kept
Records
803(6) absence of entry can be used to prove
its non-occurrence
803(8) Public Records or Reports
Activities of Public Office/internal
Admissible by all parties in both civil &
criminal

 Matters observed pursuant to a legal duty by

NON-Law enforcement personnel
Admissible by all in both criminal & civil
Findings From Official investigations
Admissible in all civil cases, and only
admissible for D in criminal cases
Matters Observed & Reported pursuant to legal
duty Law Enforcement Personnel
admissible in civil but not admissible in
criminal cases.

804 HEARSAY EXCEPTIONS (rule

does not apply): DECLARANT
MUST BE UNAVAILABLE
804(a) Unavailability
804(a)(1) privilege
804(a)(2) contempt witness available but
chooses not to come
804(a)(3) Lack of Memory cannot remember
despite refresh / recorded recollection fits here
804(a)(4) death or physical infirmity
804(a)(5) if a party offer evidence of under
2,3,4 the party must first attempt to procure
testimony through other methods;

Best effort standard for 804(a)(5)

[804(b)(1) raises Confrontation Clause problems]
804(b)(1) Former Testimony
Testimony at a prior hearing
Party against whom the testimony is offered had
an opportunity and similar motive to develop
testimony and cross-examine
No grand jury no opportunity for cross
Witness should be under-oath
Analyze each issue and party

Motive party had adequate reason in earlier

action to examine the witness thoroughly

Opportunity

- had right to examine,

examination did not have to occur-- only right
matters
804(b)(2) Dying Declarations
Statement made under belief of impending death
Limited to the cause or circumstances of what
declarant believed to be impending death
Declarant does not actually have to die
804(b)(3) Statement Against Interest

Statement contrary to the declarants pecuniary,

proprietary, or penal interest or that so far tended
to subject the declarant to civil or criminal
liability or renders a claim invalid against
another
Reasonable person in declarants position would
not have made this unless it was true

Statements made to exculpate another of

liability will not be admissible w/out
corroboration to indicate trustworthiness
Introduced by any party
Against any party
804(b)(4) Statement of Personal or Family
History
Allowed regardless of personal knowledge
804(b)(6) Forfeiture by Wrongdoing
A statement offered against a party that has
engaged in wrongdoing that was intended to,
and did, procure the unavailability of the
declarant as witness
Forfeit your right to object on hearsay grounds if
wrongdoing to procure unavailability of
declarant
806 Attacking & Supporting Credibility of
Declarant
Impeach witness as if he were the declarant
If party against whom the hearsay statement is
admitted calls the declarant they may examine
as if it is cross examination.
807 Residual Exception

RELATIONAL PRVILEGES
HUSBAND/WIFE
Criminal trial defendant has right to keep spouse
from testifying
Privilege to keep spouse from disclosing
confidential marital communications
Lost if made before 3rd parties
Eavesdropper could testify
ATTORNEY/CLEINT
Confidentiality of communications if made in
the context of client lawyer relationship
o
Rendition of legal services
3rd party presence may destroy confidentiality
Except disputes b/w clients, attorneys,
Client waives privilege by testifying
Work product
PATIENTPHYSICIAN (PSYCHOTHERAPT)
No health information can be disclosed
Does not apply to malpractice cases nor
preparation for litigation
3rd party destroys confidentiality and privilege
can be waived by testifying to conversations
SELF-INCRIMNATING TESTIMONY
5th amendment criminal defendant may refuse
to testify, witness may refuse specific questions
only.
Protects an individual from being compelled to
give incriminating testimony, such as their
thoughts, recollections, intentions or actions.
Jury cannot draw inferences from defendants
silence.
COMMUNICATIONS TO CLERGYMEN
Only person can waive privilege
All confidential communication with clergy,
apply even if not about religion