Evidence _ Privileges

Question 1

Attorney/Client Privilege

Answer 1

1) There must be a RELATIONSHIP;
2) Applies to ANYONE who works for the attorney;
3) Lasts FOREVER;
4) Communication must be CONFIDENTIAL;

• Attorney billing is admissible and not attorney client privilege.
• Any communication to the attorney about hiring the attorney is privileged (there must be a relationship).
• As well as any communication that has any prof. services on behalf of the attorney.

Question 2

Privilege is Held by the CLIENT

Answer 2

• waived by the client done voluntarily.
• Time + Place statements are being made is supposed to be confidential. Look at the location.

Question 3

HYPO - Attorney/Client Privilege - 1) If Jon just runs into a law office and says “I just shot somebody where is my lawyer? Is that privileged?

Answer 3

Yes

Question 4

HYPO - Attorney/Client Privilege - 2) Jon is sitting with his lawyer at a concert with 50000 people and Jon screams he chopped two people up. Is that privileged?

Answer 4

No.

Question 5

HYPO - Attorney/Client Privilege - 3) Jon is sitting in the luxury suite at a basketball game with his attorney. The door is closed. Jon tells his lawyer that he killed two guys yesterday. If someone hears the conversation outside is the conversation privileged?

Answer 5

Yes, eavesdropping in this case doesn’t destroy it.

Question 6

Work Product

Answer 6

• Generally protected by Attorney/Client Privilege

Question 7

Exceptions to Attorney/Client Privilege

Answer 7

• Getting advice on how to commit a crime;
• Dispute between Attorney & Client;
  *privilege doesn’t apply on how to commit a crime

Question 8

Doctor/Patient Privilege

Answer 8

• Statements about treatment or diagnosis;
• Others can be present to assist doctor/patient;
• Privilege applies to therapists too

Question 9

“HYPO - Doctor/Patient Privilege

Jon is in the hospital getting stitches from a gunshot wound to his right leg.

1) What will be privileged?

2) The doctor asks Jon what happened to his ankle and he says ‘That was from the baseball bat from the robbery two weeks ago.’ Is that privileged?

Answer 9

• Saying something unrelated to wound = not privileged;
• if it’s for a bullet wound and doc is suturing it up - it’s about treatments = privileged;
• if you’re just asking about it but not seeking treatment = not privileged.”

Question 10

Exceptions to Doctor/Patient Privilege

Answer 10

1) Patient puts his condition at issue;
2) Dispute between Doctor & Patient

Question 11

Spousal Communication Privilege (what does it protect)

Answer 11

• Protects confidential information disclosed during marriage

Question 12

Spousal Communication Privilege Applies (when, how long, who exerts it, how to waive):

Answer 12

• Civil or Criminal;
• Survives divorce;
• Either spouse may exert privilege;
• Both spouses must waive.
• NOTE: they must be legally married at the time of the communication itself.

Question 13

Spousal Testimonial Privilege

Answer 13

• Prevents a spouse from testifying

Question 14

Testimonial Privilege Applies:

Answer 14

• CRIMINAL case only;
• Must be legally married at trial;
• Covers events before/during marriage;
• ENDS with divorce;
• Witness-spouse holds the privilege

Question 15

Exceptions to Spousal Privileges

Answer 15

1) Statements about future crimes (both of the spouses wanting or talking about committing a future crime);
2) Statements about child or spousal abuse

Question 16

Judicial Notice (Definition)

Answer 16

• Any evidence not subject to dispute;
• No opinions;
  **Example: Judicial Notice: **
  Day of the week, It is sunny outside;
  **Not Judicial Notice: **
  Weather forecast for tomorrow

Question 17

When to Take Judicial Note (Judge)

Answer 17

Judge MAY - whether requested or not;
Judge MUST - if requested by party.

Question 18

Judicial Notice of Law (think federal/state/foreign/municipal)

Answer 18

MUST - federal or state law;
MAY - foreign law or municipal ordinance.

Question 19

Jury Instructions for Judicial Notice

Answer 19

Civil Case: Jury MUST accept as conclusive
vs.
Criminal Case: Jury MAY accept as conclusive;

CIVIL = MUST; CRIM = MAY

Question 20

Subsequent Remedial Measures (Public Policy Exclusions)

Answer 20

• Evidence that something was fixed after an accident;
  *NOT ADMISSIBLE to show negligence;
• statements made/actions made after the accident that proves guilt/liability = not admissible to prove negligence.

Question 21

Exception – Subsequent Remedial Measures

Answer 21

ADMISSIBLE to show ownership/control

Question 22

Liability Insurance

Answer 22

• NOT admissible to show negligence;
• MAY be admissible to show bias

Question 23

Offer to Compromise/Settle

Answer 23

• NOT admissible for public policy;
• Must be a dispute between parties;
  *Note: make sure there’s a dispute/accident and now making an offer to compromise = not admissible

Question 24

Offer to Compromise + Admission

Answer 24

The WHOLE statement is NOT admissible

Question 25

Offer to Pay Medical Expenses

Answer 25

• NOT admissible for public policy

Question 26

Offer to Pay Medical Expenses + Admission

Answer 26

Only the ADMISSION is admissible

Question 27

Plea Negotiations

Answer 27

• NOT admissible;
• But ADMISSIBLE with an admissible statement + FAIR;
• Example: No contest, Guilty plea later withdrawn, Any statement about guilty plea.

Question 28

Past Sexual Conduct of Victim

Answer 28

• NOT admissible to show other sexual behavior or sexual predisposition;
• D cannot bring in the victim’s conduct that shows predisposition = NOT admissible.

Question 29

Exception – Past Sexual Conduct of Victim - CRIMINAL CASE

Answer 29

1) Shows consent;
2) protects defendant’s constitutional rights, or
3) source of any physical evidence.

Question 30

Exception – Past Sexual Conduct of Victim - CIVIL CASE

Answer 30

Only if the probative value outweighs the prejudicial effect (balancing test)