Privileges

Question 1

How doe the Federal Rules approach privileges?

Answer 1

The Federal Rules have no specific privilege provisions but instead defer to common-law privileges, except in diversity cases, when state rules generally apply. A claim of privilege applies at all stages of a case or proceedings.

Question 2

What are the general privileges?

Answer 2

1. Confidential Communication
2. Spousal
3. Attorney-Client
4. Psychotherapist-Patient Privilege
5. Physician-Patient
6. Self-incrimination
7. Clergy-penitent
8. Accountant-Client
9. Professional Journalist
10. Governmental

Question 3

What is the confidential communications privilege?

Answer 3

For a privilege to apply there must be a confidential communication, so it is generally destroyed if overheard by a third party.

Question 4

When will the confidential communication privilege NOT be broken even though it’s been overheard?

Answer 4

The presence of a third party does not destroy the privilege if:

1. The first two parties do not know that the third party is present (so, an unknown evesdropper); OR
2. The third party is necessary to assist in the communicatin (like a translator)

Question 5

When can the confidential communication privilege be waived?

Answer 5

A privileged may be waived by the person who holds the privilege:

1. fails to assert the privilege in a timely manner (so no objection when the testimony is offered)
2. voluntarily discloses, or allows another to disclose, a substantial portion of the communication to a third party, unless the disclosure is privileged; or:
3. contractually waives the privilege in advance.

A wrongful disclosure without the privilege-holder’s consent does not constitute a waiver.

Question 6

What is the general spousal immunity privilege?

Answer 6

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 a grand jury proceeding, regardless of who is the Defendant.

Question 7

What are the two privileges within spousal privilege?

Answer 7

1. spousal immunity and

2. confidential martial communication

Question 8

Who is the holder of the spousal immunity privilege?

Answer 8

Federal Courts: in the federal courts and most states, the witness spouse holds the privilege and may choose to testify but cannot be compelled to do so

State Courts: In a minority of jurisdictions, the party spouse holds the privilege an may prevent the witness spouse from testifying , even if the witness DOES want to.

Question 9

What is the time period to which the spousal immunity applies?

Answer 9

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

Question 10

What is the time limit on asserting the spousal immunity privilege?

Answer 10

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

Question 11

What is the confidential marital communications privilege?

Answer 11

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

Question 12

Who wolds the confidential marital communications privilege?

Answer 12

The majority view is that the privilege is held by both spouses; however, a minority of courts have held that only the communicating spouse can assert the privilege.

Question 13

What is the scope of the confidential marital communications privilege?

Answer 13

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

Question 14

What is the time frame for asserting the confidential marital communications privilege?

Answer 14

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

Question 15

What are the exceptions to the confidential marital communications privilege?

Answer 15

Neither of the spousal privileges applies in which 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 16

What is the attorney-client privilege?

Answer 16

A confidential communication between a client and an attorney for the purpose of seeking legal advice or representation is privilege.

Question 17

What are the elements of the attorney-client privilege?

Answer 17

1. confidential: no third parties unless a representative of the client or attorney
2. communication: must be for purpose of seeking legal advice or representation, but no actual advice given or representation is necessary.
3. Client Holds the privilege and is the only one who may waive it. The attorney must exert it on the client’s behalf to protect the client’s interest.

Question 18

How long does the attorney-client privilege last?

Answer 18

Until waived, and survives death.

Question 19

What are the exceptions to attorney-client privilege?

Answer 19

1. statements made to an attorney that are not about legal advice or services sought (including ID and employment, and fee arrangements)
2. Disclosure of underlying facts (something she generally knew but happened to also tell attorney)
3. Communications relevant to a dispute between parties who claim through the same deceased client
4. Communications between former co-clients who are now adverse to each other
5. Work product documents:
6. When attorney is not acting as an attorney, such as tax preparer or witness to a will
7. Communications made to enable or aid the commission of what the client knew or should have known was a crime or fraud
8. communications relevant to a dispute between attorney and client (like a malpractice allegation)

Question 20

When are work product documents exempt from attorney-client privilege?

Answer 20

Documents prepared by an attorney for his own use in connection with the client’s case are not covered by the attorney-client privilege because they are not communications. However, such documents are protected under the ‘work product’ doctrine and are not subject to discovery unless the party seeking disclosure unless the party seeking disclosure:

1. Demonstrates a substantial need for the information, and
2. cannot obtain the information by any other means without undue hardship

Question 21

What is the comment and inference doctrine of the 5 amendment?

Answer 21

In a CRIM 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.

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 22

How do immunity deals work with the 5th?

Answer 22

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. Transactional immunity is protection against prosecution for the entire transaction about which he was testifying; instead, the government is constitutionally required to offer mere ‘use’ immunity, which prohibits only the use of compelled testimony against the witness.

Question 23

What happens if the government prosecutes a witness after granting him use immunity?

Answer 23

the government has the burden to show that the compelled testimony did not provide an investigatory lead that was helpful to the prosecution.

Question 24

When may a witness lose their 5 amend privileges

Answer 24

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 revoked.

Question 25

What is the clergy-penitent privilege?

Answer 25

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 26

What is the accountant-client privilege?

Answer 26

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 27

What is the professional journalist privilege?

Answer 27

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

Question 28

What are governmental privileges?

Answer 28

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

1. the ID of an informant in a crim case
2. 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 29

What is the subsequent remedial measures doctrine?

Answer 29

the subsequent remedial actions doctrine is a public policy exclusion that holds: when measures are taken that would have made an earlier injury or harm less likely to occur (like repairs), evidence of the subsequent measures is NOT admissible to prove

1. negligent, culpable conduct,
2. a defective product or design, or
3. the need for a warning or instruction

Question 30

When subsequent remedial measures are taken, what is that evidence admissible to show?

Answer 30

Evidence of subsequent remedial measures may be admissible for other purposes, such as:

1. impeachment
2. ownership
3. feasibility of precautionary measures

Question 31

How does product liability interact with the subsequent remedial measures doctrine?

Answer 31

The exclusion of evidence of a subsequent remedial measure applies to product liability actions based on negligence and those based on strict liability. To be excluded, the remedial measure must be undertaken AFTER the plaintiff is injured; a remedial measure made after a product was manufactured but BEFORE the plaintiff was injured is NOT subject to exclusion under this rule.

Question 32

What are the public policy exclusions?

Answer 32

1. Subsequent remedial meaures

2. Compromise offers and Negotiations

Question 33

What is always exempt from discovery due to the work product doctrine?

Answer 33

Mental impressions, conclusions, and trial tactics of an attorney are always protected from discovery.

Question 34

Is attorney-client privilege (and work product) waived when the information is inadvertently shared during a federal proceeding?

Answer 34

No—when made during a federal proceeding, the inadvertent disclosure of privilege communication or information does not waive the privilege IF the holder of the privilege:

1. Took reasonable steps to prevent disclosure, AND
2. Promptly took reasonable steps to rectify the error

When assessing reasonable steps, consider the number of documents, time available for production and an efficient records-management system.

Question 35

Is attorney-client privilege (and work product) waived when the information is intentionally shared

Answer 35

When made during a federal proceeding, the intentional disclosure of privileged material operates as a waiver of the attorney client privilege. The waiver extends to undisclosed information only in those unusual situations in which

1. The disclosed and undisclosed material concern the same subject matter, and
2. Fairness requires the disclosure of related information because a party has disclosed information in a selective misleading, and unfair manner.

Question 36

What is the effect on attorney-client privilege when information is disclosed in a state proceeding

Answer 36

When privileged material is disclosed in a state proceeding and the state and federal laws are in conflict as to the effect of the disclosure, the disclosure does not operate as a waiver in a subsequent federal proceeding if the disclosure:

1. Would not be a waiver had it been made in a federal court proceeding, or
2. Is not a disclosure under the law of the state where it was made. In other words, the federal court must apply the law that is most protective of the privilege. This rule does not apply if the state court has issued an order concerning the effect of the disclosure. In such a case the state-court order would be controlling.

Question 37

What is the controlling effect of a federal confidentiality order

Answer 37

A federal court may order that the privilege or protection is not always waived by a disclosure connected with the pending litigation (like a confidentiality order). In such a case, the disclosure does not constitute a waiver in any other federal or state proceeding.

Question 38

What is the effect of a parties’ agreement on attorney-client privilege?

Answer 38

An agreement between the parties regarding the effect of a disclosure binds only the parties unless the agreement is incorporated into a court order.

Question 39

What is the physician-patient privilege?

Answer 39

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

Question 40

Who holds the physician-patient privilege?

Answer 40

The patient holds the privilege and only they can decide whether to waive it.

Question 41

What are the exceptions to the physician-patient privilege?

Answer 41

1. The information was a acquired for reasons other than treatment.
2. The patient’s physical condition is at issue;
3. The communication was made as part of the commission of a crime or tort
4. A dispute exists between the physician and the patient
5. The patient contractually agreed to waive the privilege
6. A case is brought in federal court and state law does not apply (so most cases that involve a federal question)

Question 42

What is the psychotherapist-Patient privilege?

Answer 42

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

Question 43

What are the exceptions to the psychotherapist-patient privilege

Answer 43

1. The patient’s mental condition is at issue,
2. The communication was a result of a court-ordered exam, or
3. The case is a commitment proceeding against the patient

Question 44

What is the general privilege against self-incrimination?

Answer 44

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.

Question 45

What is exempt from the 5th amendment protection against self-incrimination?

Answer 45

• Prior statements; only applies to current statements its fruits
• Statements from corporations; only applies to human beings
• Foreign prosecutions; the 5th only protects against domestic prosecutions.

Question 46

What is the Compromise Offers and Negotiations exclusion?

Answer 46

Compromise offers made by any party, as well as any conduct or statements made during compromise negotiations, are not admissible to prove or disprove the validity or amount of a disputed claim, nor may they be admitted for impeachment by prior inconsistent statement or negotiation.

Question 47

When it comes to the Compromise Offers and Negotiations public policy exclusion, what happens if there is no dispute?

Answer 47

if a party admits to both its validity and amount, so there is no dispute, then a statement made in connection with an offer to settle for a lesser amount is admissible.

Question 48

What are the exceptions to the compromise offers and negotiations public policy exclusion?

Answer 48

1. Negotiation with a Government Agency: a person’s conduct or statements made during compromise negotiations with a governmental agency (such as the IRS) during the exercise of it’s regulatory, investigative or enforcement authority may be introduced in a subsequent case against the person.
2. Admissibility for other reasons: Evidence of settlement offers and negotiations is admissible to prove bias or prejudice of a witness, or to negate a claim of undue delay, or to prove obstruction of a criminal investigation or prosecution.

Question 49

Does the Compromise Offers and Negotiations public policy exception to admissibility immunize all related evidence?

Answer 49

No; evidence may be admissible through means other than as an admission made during compromise negotiations. A party does not immunize (i.e. protect from admission) evidence simply by discussing it during compromise negotiations.

Question 50

Is the Compromise Offers and Negotiation Public Policy Exception a prohibition on all parties?

Answer 50

Yes; Compromise 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. Also, when there are more than two parties, a settlement agreement entered into by a party with an adverse party cannot by used by a remaining party to prove or disprove the validity or amount of unsettled claims.

Question 51

Are Offers to Pay Medical Expenses admissible to prove liability for an injury?

Answer 51

No; Evidence of the payment, offer to pay, or promise to pay medical or other similar expenses resulting from an injury is NOT admissible to prove liability for the injury.

COMPARED TO COMPROMISE: Unlike a compromise negotiation, any conduct or statement that accompanies the payment, offer to pay, or promise to pay medical expenses is admissible.

Question 52

Are plea negotiations admissible?

Answer 52

No; Plea Negotiations are a public policy exclusion to admissibility. In a civil OR crim case, the following evidence is not generally admissible against the D who made the plea or participated in the discussion:
1. withdrawn guilty please

2. pleas of no contest (nolo contendere)
3. Statements made while negotiating a plea with a prosecutor, even if it’s an offer to plead guilty
4. Statements made during a plea proceeding (such as a rule 11 proceeding)

Question 53

What are the exceptions to the plea negotiations public policy exception?

Answer 53

1. When another statement from the same plea or negotiation has already been admitted and fairness requires that the statement in question also be admitted. These statements are also admissible in a subsequent perjury prosecution if they were false statements made under oath, on the record and with counsel present.
2. Waiver: a D may waive this protection if it is knowing and voluntary.

Question 54

Is liability insurance admissible to show how a person acted?

Answer 54

No, liability insurance is not admissible on a public policy basis to show whether a person acted negligently or otherwise wrongfully. However it MAY be admissible for another purpose, like to prove agency, ownership, control, bias, or prejudice.

Question 55

When is a victim’s sexual conduct admissible?

Answer 55

Under the ‘rape shield’ rule evidence offered to prove the sexual behavior or sexual predisposition of a victim (or alleged victim) generally is not admissible in any civil or criminal proceeding involving sexual misconduct. The exclusion applies to the use of such evidence for impeachment as well as substantive purposes.

Sexual behavior includes not only sexual intercourse or contact but also activities that imply such sexual intercourse or contact, such as the use of contraceptives or the existence of a sexually transmitted disease. Sexual predisposition can include the victim’s mode of dress, speech or lifestyle.

Question 56

What are the exceptions to the ‘rape shield’ rule in criminal cases?

Answer 56

In a criminal case involving sexual misconduct, evidence of specific instances of a victim’s sexual behavior is admissible to prove that someone other than the defendant was the source of the semen, injury, or other physical evidence. In addition, evidence of sexual behavior with the person accused of sexual misconduct is admissible if offered by the D to prove consent or if offered by the prosecution.

NOTE: unlike generally, here reputation or opinion evidence of a victim’s sexual behavior or predisposition are not admissible.

Finally, any evidence whose exclusion would violate the D’s constitutional rights is admissible under Rule 412. (for example: under the 6th amend confrontation clause a D in a rape case must be allowed to cross an alleged victim to show that she’s only lying about the sex to protect another relationship.)

Question 57

What are the exceptions to the rape shield law in civil cases?

Answer 57

In a civil case, evidence offered to prove a victim’s sexual behavior or predisposition 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.

Question 58

In civil cases, when does the restriction on evidence of a victim’s sexual behavior or predisposition applies only when the party against whom the evidence is offered can be characterized as a victim of sexual misconduct.

Answer 58

No: P in a defamation action based on a statement about the P’s sexual behavior.

Yes: A P who brings who brings a Title VII sexual harassment action

Question 59

When there are exceptions to the rape shield rules, what is the procedure for admission?

Answer 59

In a criminal or civil case, the party intending to offer evidence of the victim’s sexual behavior or predisposition must file a motion describing the evidence and stating the purpose for its introduction. the motion must be filed at least 14 days before trial unless the court sets a different time. The motion must be served on all parties, and the victim must be notified. The court must conduct an in camera hearing and give the victim and the parties the right to attend and be heard. Unless the court orders otherwise the record of the hearing is sealed.

Question 60

In a criminal case in which a D is accused of sexual assault, attempted sexual assault, or conspiracy to commit sexual assault, when is evidence that the D committed any other sexual admissible?

Answer 60

Such evidence is admissible to prove any relevant matter. Same goes for a D accused of child molestation. (as contrasted to prior evidence of robbery or nonsexual crimes)

However, the court does have discretion to exclude such evidence under rule 403.

NOT limited to convictions; could be arrest or even testimony, and there is no time limit

Pretrial disclosure: The prosecutor or plaintiff who intends to bring such evidence must disclose it to the D at least 15 days before trial unless the court, for good cause, allows a later disclosure.