5 - Privileges and Other Policy Exclusions

Question 1

What are the specific privilege provisions in the Federal Rules? So? Except? FRE?

Answer 1

The Federal Rules of Evidence have no specific privilege provisions, but instead defer to common law privileges, except in diversity cases, when state rules apply. Fed. R. Evid. 501.

Question 2

What stages of actions, cases, and proceedings (to which the federal rules apply) does a claim of privilege apply? FRE?

Answer 2

A claim of privilege applies at all stages of all actions, cases, and proceedings to which the Federal Rules apply. Fed. R. Evid. 1101(c).

Question 3

In order for a privilege to apply, what must there be?

Answer 3

a confidential communication

Question 4

What about privileges overheard by a third party? An eavesdropper?

Answer 4

In order for a privilege to apply, there must be a confidential communication. Generally, if the communication is overheard by a third party, the privilege is destroyed. However, in the case of an unknown eavesdropper, or if a third party’s presence is necessary to assist in the communication, the privilege is not destroyed.

Question 5

How may a privilege be waived? (3)

Answer 5

Privileges may be waived if the person who holds the privilege:

i) Fails to assert the privilege in a timely manner (i.e., when the testimony is offered);
ii) Voluntarily discloses, or allows another to disclose a substantial portion of the communication to someone not protected by any privilege (a wrongful disclosure without the privilege holder’s consent does not constitute a waiver); or
iii) Contractually waives the privilege in advance.

Question 6

What two distinct privileges is “spousal privilege comprised of?

Answer 6

1. spousal immunity

2. confidential marital communications

Question 7

What is the general spousal immunity rule? (2)

Answer 7

The general rule is that the spouse of a criminal defendant may not be called as a witness by the prosecution. Nor may a married person be compelled to testify against his spouse in any criminal proceeding, including grand jury proceedings, regardless of who is the defendant.

Question 8

Who holds the spousal immunity privilege in federal courts?

Answer 8

In federal courts (and a minority of states) the witness spouse holds the privilege and may choose to testify, but cannot be compelled to do so.

Question 9

Who holds the spousal immunity privilege in state courts?

Answer 9

In many jurisdictions, the party spouse (as opposed to the witness spouse) holds the privilege, and may prevent the witness spouse from testifying, even if the witness spouse wants to testify.

Question 10

What period of events does the spousal immunity privilege apply to? (between: before, during, after marriage)

Answer 10

The spousal immunity privilege applies to testimony about events that
occurred before and during the marriage.

Question 11

What is the time limit to assert a spousal privilege?

Answer 11

The spousal immunity privilege can be asserted only during a valid marriage. The right to assert the privilege expires upon divorce or annulment.

Question 12

When are marital communications confidential? (2)

Answer 12

Communication made between spouses while they were married is privileged if the communication was made in reliance on the sanctity of marriage.

Question 13

Who holds the privilege of confidential marital communications?

Answer 13

The majority view is that the privilege is heid by both spouses. Some courts, however, have taken the position that only the communicating spouse can assert the privilege.

Question 14

What is the scope of the privilege of confidential marital communications? (between: before, during, after marriage, criminal, civil)

Answer 14

This privilege applies only to communications made during marriage. This privilege applies to both civil and criminal cases.

Question 15

What is the time limit on the privilege of confidential marital communications?

Answer 15

The time for asserting this privilege extends beyond the termination of the marriage. Thus, either party may assert the privilege—by refusing to testify or preventing the other from doing so—at any time, even after divorce or the death of one spouse.

Question 16

What are the exceptions to both spousal privileges? (3)

Answer 16

Neither of the spousal privileges applies in cases when one spouse is suing the other, or when one spouse is charged with a crime against the other spouse or the children of either.

Question 17

What is the general rule on attorney-client privilege?

Answer 17

A confidential communication between a client and an attorney is privileged.

Question 18

What about “confidential” and attorney-client privilege?

Answer 18

The communication must be intended to be confidential in order to be privileged. Communication made in the knowing presence of a third party generally destroys privilege. However, the presence of, or communication by or through, a representative of the client or the attorney does not destroy the attorney-client privilege.

Question 19

What about “communication” and attorney-client privilege? (2)

Answer 19

The communication must be for the purpose of seeking legal advice or representation, but the attorney does not need to give advice or agree to the representation for the privilege to exist. Statements made to an attorney that are not about the legal advice or services sought by the client are not privileged. These include information regarding the fact of employment, the identity of the client, and the fee arrangements for the representation. If providing such information would divulge a confidential communication or incriminate the client, it may be protected.
Communications are also not privileged when they are made to an attorney who is acting in a capacity other than as an attorney, such as a tax preparer, business partner, or witness to a will.

Question 20

Who holds the attorney-client privilege (i.e., who can waive it)?

Answer 20

The client holds the privilege, and is the oniy one who may waive it. The attorney, however, must assert the privilege on the client’s behalf to protect the client’s interests. The privilege exists until it is waived, and can survive the client’s death.

Question 21

What are the three exceptions to the attorney-client privilege?

Answer 21

1. Work product doctrine
2. Future crime
3. Disputes between attorney and client

Question 22

What is the “work product doctrine”? (2) FRE?

Answer 22

Documents prepared by an attorney for his own use in connection with a client’s case are protected under the “work product” doctrine, and are not subject to discovery unless the party seeking disclosure (i) demonstrates a substantial need for the information, and (ii) cannot obtain the information by any other means without undue hardship. Fed, R. Civ. P. 26(b)(3).

Question 23

Are the mental impressions, conclusions, and trial tactics of an attorney protected from discovery?

Answer 23

Yes; the mental impressions, conclusions, and trial tactics of an attorney are always protected from discovery. They are not covered by the attorney- ciient privilege because they are not communications.

Question 24

What is the future crime exception to the attorney-client privilege?

Answer 24

There is no privilege if the communication relates to the future commission of what the client knew or should have known was a crime or fraud.

Question 25

What about disputes between client and attorney or co-clients and the attorney-client privilege?

Answer 25

A dispute between attorney and client (e.g., malpractice allegation) or between co-clients who are now adverse to each other allows for the disclosure of confidential communications relevant to the dispute.

Question 26

What does FR 502 do?

Answer 26

Federal Rule 502 applies to the disclosure of information covered by the attorney-client privilege or work product doctrine. Rule 502 does not impact when the attorney-client privilege or work product protection applies in the first place. Instead, it is narrowly targeted to address the question of when specified kinds of litigation-related disclosures do or do not operate as a waiver of the protection that would otherwise apply

Question 27

Is the entire subject matter of a communication waived? FRE? What if the disclosure waives attorney client privilege? (3)

Answer 27

Federal Rule 502(a) limits waiver of the attorney-client privilege to the communication or materials disclosed, not to the entire subject matter of the communication. If the disclosure of a protected communication is made In a federal proceeding and that disclosure waives the attorney-client privilege or work product protection, the waiver will extend to undisclosed information in a federal or state proceeding only if:

i) The waiver is intentional;
ii) The disclosed and undisclosed information concern the same subject matter; and
iii) They ought in fairness to be considered together.

Question 28

When does the disclosure of protected communication not operate as a waiver? (3) FRE?

Answer 28

When made in a federal proceeding or to a federal office or agency, the disclosure of a protected communication does not operate as a waiver if (i) the disclosure was inadvertent, (ii) the holder of the privilege took reasonable steps to prevent disclosure, and (iii) the holder promptly took reasonable steps to rectify the error. Fed. R. Evid. 502(b).

Question 29

What about disclosure of a protected communication in made in a state proceeding not the subject of a state court order concerning waiver, with respect to federal court? (2) FRE? In other words?

Answer 29

When the disclosure of a protected communication is made in a state proceeding and is not the subject of a state court order concerning waiver, the disclosure does not operate as a waiver in a federal proceeding if the disclosure (i) would not be a waiver if it had been made in a federal proceeding or (ii) is not a waiver under the law of the state in which the disclosure occurred. Fed. R. Evid. 502(c).

In other words, the federal or state law that furnishes the greatest protection to the privilege and work product will apply.

Question 30

What about when a federal court orders a disclosure not to be a waiver? FRE?

Answer 30

A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court, in which case the disciosure is also not a waiver in any other federal or state proceeding. Fed. R. Evid. 502(d).

Question 31

What about the physician-patient privilege generally? Federal rules, common law? For what purpose? Who holds the privilege?

Answer 31

Although there is no common-law privilege covering statements made by a patient to a doctor, many states protect such communications by statute, so long as the communications were made for the purpose of obtaining medical treatment. The patient holds the privilege.

Question 32

When does the physician-patient privilege not exist? (6)

Answer 32

The privilege does not exist if:

i) The information was acquired for reasons other than treatment;
ii) The patient’s physical condition is at issue;
iii) The communication was made as part of the commission of a crime or tort;
iv) A dispute exists between the physician and patient;
v) The patient contractually agreed to waive the privilege; or
vi) A case is brought in federal court and state law does not apply (e.g., most cases that involve a federal question).

Question 33

What if If an attorney requests that a physician consult with his client?

Answer 33

If an attorney requests that a physician consult with his client, the physician-patient privilege only applies if treatment is contemplated during the consult.

Question 34

What about the psychotherapist-patient privilege generally? When does it not exist? (3)

Answer 34

The federal courts and most states recognize a privilege for confidential communications made between a psychiatrist, psychologist, or licensed social worker and patient. The patient holds the privilege, but the psychotherapist must assert the privilege in the patient’s absence.
The privilege does not exist if (i) the patient’s mental condition is at issue, (ii) the communication was a result of a court-ordered exam, or (iii) the case is a commitment proceeding against the patient.

Question 35

Compare the Psychotherapist-Patient with the Physician-Patient Privilege.

Answer 35

The psychotherapist-patient privilege is more widely recognized than the traditional physician-patient privilege.

Question 36

What about self-incrimination in general? (5)

Answer 36

The Fifth Amendment protection against self-incrimination allows a witness in any proceeding to refuse to give testimony that may tend to incriminate the witness. The protection covers only current (not prior) statements, and does not apply to physical characteristics or mannerisms. The privilege belongs only to human beings. A corporation or other organization is not able to assert the privilege.

Question 37

What about comment and inference because of pleading the fifth? (2)

Answer 37

In a criminal case, a prosecutor may not comment on the defendant’s failure to take the stand and may not argue that the jury should draw a negative inference from the assertion of the privilege. Griffin v. California, 380 U.S. 609 (1965).
In a civil case, however, it is proper for the opposing party to ask the jury to draw an adverse inference from a witness’s claim of privilege.

Question 38

What about immunity and self-incrimination? (i.e. the difference between “transactional” immunity and “use” immunity) (3)

Answer 38

A witness may be compelled to provide incriminating testimony if the government grants him immunity from prosecution. The witness is not entitled to “transactional” immunity, i.e., protection against prosecution for the entire transaction about which he was testifying; instead, the government is constitutionally required to offer mere “use” immunity, which only prohibits the use of the compelled testimony against the witness.

If the government does prosecute the witness in such a case, the government has the burden to show that the compelled testimony did not provide an investigatory lead that was helpful to the prosecution.

A witness may lose the right to invoke the privilege if the danger of incrimination has been removed through acquittal or conviction of the underlying charge. If the questioning about the adjudicated crime can lead to prosecution for other crimes, however, the privilege can be invoked.

Question 39

What about the clergy-penitent privilege? Who holds the privilege?

Answer 39

In some jurisdictions, a confidential communication made by a penitent to a member of the clergy is privileged. The penitent holds the privilege, but the clergy member must assert the privilege on the penitent’s behalf.

Question 40

What about the Accountant-client privilege?

Answer 40

Although not available at common law, many jurisdictions recognize a privilege for confidential communications made by a client to his accountant. The privilege operates similarly to the attorney-client privilege.

Question 41

What about the professional journalist privilege?

Answer 41

There is no federal privilege protecting a journalist’s source of information, but some states have enacted statutes extending some protection to journalists.

Question 42

What about governmental privileges? (2)

Answer 42

The government, at all levels, is privileged against disclosing:

i) The identity of an informant in a criminal case; and
ii) The communication of official information (i.e., information that relates to the internal affairs of the government and is not open to the public) by or to public officials.

Question 43

What are four “other” privileges?

Answer 43

1. Clergy-penitent
2. Accountant-client
3. Professional journalist
4. Governmental (informant and official info)

Question 44

What are the six areas of public policy exclusion?

Answer 44

1. Liability insurance
2. Subsequent Remedial Measures
3. Offers to Pay Medical Expenses
4. Settlement Offers or Negotiations
5. Plea Negotiations
6. Past Sexual Conduct

Question 45

What about liability insurance? (3) FRE?

Answer 45

Evidence that a person was or was not insured against liability is not admissible to prove (or disprove) negligence or wrongdoing. However, evidence of insurance coverage is admissible to prove ownership or control or to show the bias or prejudice of a witness. Fed. R. Evid. 411.

Question 46

What about subsequent remedial measures? Yes? (3) No? (4) FRE?

Answer 46

Evidence of repairs made or other remedial measures taken after an injury to the plaintiff is not admissible to prove negligence, culpable conduct, defective product or design, or the need for a warning. However, evidence of subsequent remedial measures is admissible to prove ownership or control, to prove that the defendant destroyed or concealed evidence, or to rebut evidence of the safety of a condition. Fed. R. Evid. 407.

Question 47

What about offers to pay medical expenses? (2) FRE?

Answer 47

Evidence that the defendant paid or offered to pay plaintiff’s medical bills is not admissible to prove liability for plaintiff’s injuries. However, unlike a settlement offer, any conduct or statement that accompanies the payment or offer to pay is admissible. Fed. R. Evid. 409.

Question 48

What about settlement offers or negotiations generally? (4) FRE?

Answer 48

A settlement offer made by any party is not admissible to prove liability for, invalidity of, or the amount of a disputed claim. A settlement offer also cannot be admitted as a prior inconsistent statement to impeach a party. Fed. R. Evid. 408.

Question 49

What if there is no dispute about liability or amount (in settlement offers or negotiations)?

Answer 49

If the claim is not disputed as to liability or amount (e.g., a party admits to both), a statement made in connection with an offer to settle for a lesser amount is admissible.

Question 50

What “other reasons” are there for admitting settlement and negotiation offers? (3)

Answer 50

Any conduct or statements made in the course of negotiating a compromise are also excluded. Evidence of settlement offers and negotiations is admissible to prove bias or prejudice of a witness, to negate a claim of undue delay, or to prove obstruction of a criminal investigation or prosecution.

Question 51

Can the settlement/negotiation offers rule be waived?

Answer 51

No; settlement evidence is not admissible on behalf of any party who participated in the compromise negotiations, even the party who made the settlement offer or statement. The protection of this rule cannot be waived unilaterally.

Question 52

What about plea negotiations? What kinds of such statements are inadmissible? (4) Are admissible? (2) FRE?

Answer 52

Withdrawn guilty pleas, pleas of no contest, offers to plead guilty, and evidence of statements made while negotiating a plea are not admissible in any proceeding. Statements made during pleas or negotiations are admissible, however, if another statement made during the same plea or negotiation has already been admitted and fairness requires that the statement in question also be admitted. Such statements are also admissible in a subsequent perjury prosecution if they were false statements made under oath, on the record, and in the presence of counsel. Fed. R. Evid. 410.

Question 53

What about a victim’s conduct and past sexual conduct privilege? FRE?

Answer 53

Evidence of a victim’s past sexual behavior or sexual predisposition generally is not admissible in any civil or criminal proceeding involving sexual misconduct. Fed. R. Evid. 412(a).

Question 54

What is there to know about victim’s conduct and exceptions to the past sexual conduct privilege? Procedurally? (2) FRE?

Answer 54

Separate in civil and criminal

Evidence of the victim’s sexual conduct is admissible under the following exceptions only upon written motion made 14 days or more before trial. The party intending to offer the evidence must present an offer of proof at a hearing in the judge’s chambers, at which the victim and the parties have a right to be present. Fed. R. Evid. 412(c).

Question 55

When is evidence of a victim’s past sexual conduct admissible, in a criminal case? (3) FRE?

Answer 55

In a criminal case, evidence of a victim’s past sexual conduct is admissible:
i) To show the victim’s past sexual behavior to prove whether the defendant was the source of semen or injury;
ii) To show the victim’s past sexual behavior with the defendant in order to prove consent; or
iii) When the constitutional rights of the defendant require admission of the evidence.
Fed. R. Evid. 412(b)(1).

Question 56

When is evidence of a victim’s past sexual conduct admissible, in a civil case? What about evidence a victim’s reputation? FRE?

Answer 56

In a civil case, evidence of the victim’s past sexual conduct is admissible if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of a victim’s reputation is admissible only when it has been placed in controversy by the victim. Fed. R. Evid. 412(b)(2).

Question 57

When is a defendant’s past sexual conduct admissible? Procedural? FRE? However?

Answer 57

In any case in which the defendant is accused of committing an act of sexual assault or child molestation, evidence of the defendant’s prior commission of sexual assault or child molestation is admissible to prove any relevant matter. Pretrial disclosure of such evidence to the defendant is usually required. Fed, R. Evid. 413—415.

However, most Courts of Appeal addressing the issue have ruled that the judge has discretion to exclude evidence of a prior act of sexual assault or child molestation if the probative value is substantially outweighed by the danger of unfair prejudice.

Question 58

What are some factors to consider when doing the 403 balancing test to prior offenses admissible under 414? (5)

Answer 58

These factors include the similarity of the prior offense and currently charged crime, the proximity in time between the two crimes, the frequency of the prior offense, the reliability of evidence of the past offense, and any relevant intervening facts or the absence thereof.

Question 59

Is past sexual conduct of D limited to convictions? Time limit? FRE?

Answer 59

Even if the defendant had not been previously convicted of the offense, an arrest or even testimony of an incident that was unreported to the authorities may be used as substantive evidence of the prior behavior. There is also no time limit on the use of such evidence. Fed. R. Evid. 414.