PRIVILEGES AND OTHER POLICY EXCLUSIONS Flashcards
Attny/client privilege reqs:
1) There must be a RELATIONSHIP
2) Applies to ANYONE who works for the
attorney
3) Lasts FOREVER
4) Communication must be CONFIDENTIAL
who holds the priv in attny/client priv?
The client
what is work product?
anything prepared by the attorney in anticipation of litigation
is work product protected?
yes, by attny client priv.
Attorney/Client Privilege does not exist for:
- Getting advice on how to commit a crime
- Dispute between Attorney & Client
Doctor/Patient Priv
statements about:
- treatment or
- diagnosis
does another’s presence interrupt doc/pat priv?
others can be present if they are assisting the doctor or the patient without breaking the confidentiality
Doctor/Patient Privilege does not apply when:
1) Patient puts his condition at issue
2) Dispute between Doctor & Patient
Spousal Communication Privilege:
- Protects confidential information disclosed during marriage
when does the spousal Communication Privilege Apply?
- Civil or Criminal
- Survives divorce
which spouse may exert privilege?
either spouse may exert privilege
how to waive spousal communication priv?
both spouses MUST waive
Spousal Testimonial Privilege:
- Prevents a spouse from testifying
when does spousal Testimonial Privilege Apply?
- Criminal cases only
AND - Must be legally married at trial
What events does the Testimonial Privilege of spouses cover?
Covers events before/during marriage and ENDs with divorce
Who holds spousal testimonial priv?
Witness-spouse holds the priv
Exceptions to statements covered by the spousal priv?
1) Statements about future crimes
2) Statements about child or spousal abuse
What is Judicial Notice
Judicial notice is a method used by a court when it declares a fact presented as evidence as true without a formal presentation of evidence.
ie: any evidence not subject to dispute, no opinions at all
what are some examples of judicial notice?
o Day of the week
o It is sunny outside
When to take judicial notice?
- Judge MAY – whether requested or not * Judge MUST – if requested by a party
Judicial Notice of Law
- MUST – for federal or state law
- MAY – for foreign law or municipal ordinance
Jury Instructions for Judicial Notice
- in a Civil Case: Jury MUST accept as conclusive
vs. - in a Criminal Case: Jury MAY accept as conclusive
subsequent remedial measures
- Evidence that something was fixed after an accident
- NOT ADMISSIBLE to show negligence
- Public policy rule
Exception for admissibility – Subsequent Remedial Measures
- are ADMISSIBLE to show ownership/control
Liability Insurance when admissible and when not?
- NOT admissible to show negligence
- MAY be admissible to show bias
Offer to Compromise/Settle, admissible?
- NOT admissible to show liability quia that would violate public policy
- Must be a dispute between parties in the first place for this even to apply
Offer to Compromise + Admission: admissible?
- The WHOLE statement is NOT admissible
Offer to Pay Medical Expenses: admissible?
NOT admissible to show liability quia would violate public policy
Offer to Pay Medical Expenses + Admission: admissible?
Only the ADMISSION is admissible
Plea Negotiations, admissible?
- NOT admissible quia would be against public policy
Examples of plea negotiations
o No contest
o Guilty plea later withdrawn
o Any statement about guilty plea
Exception to Plea Negotiations being inadmissible
could be ADMISSIBLE because:
1. the plea is coupled with an admissible statement
AND
2. it is FAIR
Past Sexual Conduct of Victim: admissible?
- generally is NOT admissible to show other sexual behavior or sexual predisposition
Exception – Past Sexual Conduct of Victim: Criminal Cases
In a CRIMINAL Case:
1) goes to show consent occurred,
2) if the introduction of the past conduct protects defendant’s constitutional rights,
OR
3) shows someone other than the D was the source of any physical evidence
Exception – Past Sexual Conduct of Victim: Civil Cases
In a CIVIL Case:
* ONLY if the probative value outweighs the prejudicial effect
