Privileges and Other Policy Exclusions

Question 1

What is the legal standard of admissibility for evidence of liability insurance?

Answer 1

Evidence that a person has liability insurance is admissible to show ownership, control, or for impeachment, but
inadmissible to show negligence or the ability to pay a judgment.

AdaptiTip: Excluding evidence of liability insurance to prove fault is the result of a public policy that encourages
people to carry liability insurance.

Question 2

When are subsequent remedial measures ADMISSIBLE and INADMISSIBLE?

Answer 2

Subsequent remedial measures are:

ADMISSIBLE to show ownership or control, to rebut a claim of infeasibility, or to prove that evidence was
destroyed; and

INADMISSIBLE to show negligence, culpable conduct, the existence of a product or design defect, or the need
for a warning.

AdaptiTip: This is based on public policy encouraging people to make repairs and improvements for safety.

Question 3

Is evidence of a rape victim’s character admissible?

Answer 3

No. Evidence of a rape victim’s character (e.g., victim’s past sexual conduct with other partners) is generally
inadmissible. This is often referred to as “rape shield” laws.
AdaptiTip: Exceptions include using a victim’s prior sexual history to prove the source of physical evidence or
prior consensual acts between the defendant and victim.

Question 4

What is a “testimonial privilege”?

Answer 4

A “testimonial privilege” allows someone to refuse to disclose or prevent someone else from disclosing
confidential information in the interest of protecting a specific relationship or interest.

AdaptiTip: The FRE do not contain a specific provision on privileges; rather, federal courts apply common law
privilege rules.

Question 5

What are the five common law privileges recognized in federal courts?

Answer 5

The federal privileges include:

1. attorney-client;
2. spousal immunity;
3. confidential marital communications;
4. psychotherapist/social worker-client; AND
5. clergy-penitent.

AdaptiTip: There is no doctor-patient privilege in federal courts (unless applying state law while sitting in
diversity).

Question 6

What is the “attorney-client privilege”

Answer 6

The “attorney-client privilege” means the client (or their representative) has the privilege to refuse to disclose
and prevent their attorney (or the attorney’s representative) from disclosing confidential communications made
while seeking out or receiving legal services.

AdaptiTip: This privilege does not apply to objects or preexisting documents.

Question 7

When does the attorney-client privilege apply to client corporations?

Answer 7

When the client is a corporation, the privilege protects statements made by any officials or employees who work
for the corporation IF they were authorized or directed by the corporation to make those statements.

Question 8

What is the three-part legal standard for the physician-patient privilege?

Answer 8

The physician-patient privilege allows a patient to refuse to disclose and prevent their physician from disclosing:

1. confidential information exchanged while the physician was attending to the patient;
2. while the physician was acting in a professional capacity,
   IF
3. the information was necessary for medical treatment.
   AdaptiTip: This privilege applies indefinitely.

Question 9

What are the two primary exceptions to the privileges based on a marital relationship

Answer 9

Immunity will NOT apply, based on the existence of a marital relationship, in cases involving:

1. crimes against the testifying spouse or spouse’s children (e.g., assault, battery, incest, child abuse); OR
2. communications in furtherance of joint crime or fraud

Question 10

What is the legal standard for “spousal immunity”?

Answer 10

In federal criminal cases, “spousal immunity” allows a married person to choose whether or not to testify as a witness against their spouse, the accused.
The privilege belongs only to the witness-spouse, which is why the defendant-spouse may not compel or prohibit testimony from the witness-spouse.

AdaptiTip: This privilege does not survive divorce or annulment, although it covers events that predate the marriage

Question 11

What is the legal standard for the “confidential marital communications privilege”?

Answer 11

Under the “confidential marital communications privilege,” two married spouses may each refuse to disclose and prevent the other from disclosing confidential communications that occurred during the marriage IF those communications were made in reliance on the intimacy of the relationship.

AdaptiTip: Divorce does not terminate the privilege retroactively, although the privilege does not protect

Question 12

Who may assert a testimonial privilege?

Answer 12

Only the person who holds the privilege (i.e., whose interest is protected) may assert the privilege

AdaptiTip: For example, the client may assert the privilege in the attorney-client relationship, but a third party who was not part of the relationship may NOT assert the privilege on the client’s behalf.

Question 13

What are the four ways a testimonial privilege may be waived?

Answer 13

A person may waive his privilege by:

1. voluntarily disclosing the privileged information (unless disclosure is also privileged);
2. contractually agreeing to waive the privilege;
3. failing to object when privileged testimony is offered; AND/OR
4. failing to invoke the privilege (if invocation is required).

AdaptiTip: If an eavesdropper overhears privileged information, the testimonial privilege will remain intact.

Question 14

When does the attorney-client privilege apply to an agent acting on behalf of the client?

Answer 14

The communication through an agent is protected if it is necessary to exchange information between the attorney and client.

AdaptiTip: This may include communications with a secretary, the client’s ac

Question 15

When does the attorney-client privilege apply to joint-client representation?

Answer 15

When an attorney represents two parties in a transaction, if one or both of the parties has a later dispute with a third party, the privilege will apply.

However, if a dispute later arises between the jointly-represented parties, the privilege will NOT apply.

AdaptiTip: This policy seeks to ensure that multiple parties can expect confidentiality between them (as the
clients) and other people.

Question 16

What is the duration of the attorney-client privilege?

Answer 16

The privilege applies indefinitely, including after the attorney-client relationship ends and beyond the death of the client

Question 17

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

Answer 17

The attorney-client privilege does not apply in situations involving:

1. legal advice sought in furtherance of a future wrongdoing or crime (e.g., fraud);
2. disputes between the attorney and client (e.g., breach of duty or malpractice);
3. parties who have claims through the same deceased client; OR
4. legal advice put in issue by the client (e.g., client argues they are not liable because they followed the attorney’s advice).

Question 18

What does the psychotherapist/social worker-client privilege cover?

Answer 18

A patient may refuse to disclose and prevent a psychotherapist/social worker from disclosing any confidential information exchanged during diagnosis or treatment of mental or emotional conditions.

AdaptiTip: This privilege is recognized in federal courts, while the physician-patient privilege is not.

Question 19

What are the four exceptions to the physician-patient privilege?

Answer 19

The physician-patient privilege does NOT apply when:

1. the patient puts their physical condition in issue;
2. the patient sought the medical services in furtherance of a future wrongdoing or crime (e.g., fraud);
3. a legal dispute arises between the physician and patient; OR
4. the patient contractually agreed to waive the privilege.

AdaptiTip: Because the FRE does not contain a physician-patient privilege, it does not apply in federal courts.

Question 20

What are the four differences between the “confidential marital communications privilege” and “spousal immunity”?

Answer 20

In contrast to spousal immunity, the confidential marital communications privilege

1. belongs to both spouses (spousal immunity only belongs to the spouse-witness);
2. does NOT cover events predating the marriage (spousal immunity does);
3. survives divorce and death (spousal immunity does not); AND
4. applies to BOTH civil and criminal cases (spousal immunity only applies to criminal cases).

Question 21

What does the privilege for the identity of police informants cover?

Answer 21

Both law enforcement and the prosecution have the privilege to refuse to disclose the identity of confidential informants who have given information to aid in the investigation and/or prosecution of crimes.

AdaptiTip: The privilege does not apply if the informer’s identity is voluntarily disclosed, if the informant is a witness in the case, or if their testimony would be necessary to a fair determination of guilt or innocence.

Question 22

When will an offer to settle or compromise be admissible?

Answer 22

If there is an implied or express indication that a party will bring a claim disputing liability or amount, evidence of offers to compromise or settle are inadmissible to prove (or disprove) the amount of a disputed claim or to impeach via prior inconsistent statement.

AdaptiTip: Excluding evidence of offers to settle or compromise is based on public policy encouraging people to settle rather than proceed with litigation

Question 23

Are statements of fact made during settlement negotiations admissible?

Answer 23

No. Any conduct or statements made during compromise or settlement negotiations are inadmissible, including any admissions of fact.

AdaptiTip: Compare to offers to pay medical expenses, where admissions of fact are admissible.

Question 24

When is an offer to pay medical expenses admissible?

Answer 24

An offer to pay (or actual payment) of a person’s medical expenses is INADMISSIBLE to prove liability for the injury.

AdaptiTip: This is true regardless of whether there is a claim or threat of litigation.

Question 25

Are statements of fact made during an offer to pay medical expenses admissible?

Answer 25

Yes. If someone is offering to pay an injured party’s medical expenses, although the offer to pay is inadmissible, the offeror’s admissions of fact ARE admissible.

AdaptiTip: Compare to offers to compromise, where admissions of fact are inadmissible.

Question 26

When are withdrawn guilty pleas or offers to plead guilty admissible?

Answer 26

NEVER. Withdrawn guilty pleas or offers to plead guilty (and any statements made during plea negotiations) are NEVER admissible because any evidentiary value is outweighed by the prejudicial effect.

AdaptiTip: This exclusion applies in both criminal and civil cases.
Source: Fed. R. Evid. 410

Question 27

Does the physician-patient privilege apply in criminal proceedings?

Answer 27

No. Most states do NOT allow the physician-patient privilege in criminal proceedings, only civil.

AdaptiTip: The FRE does NOT contain a physician-patient privilege, but most individual states have codified it by statute.

Question 28

What are the two privileges based on the marital relationship?

Answer 28

A valid marriage may establish two potential types of immunity, including:
1. “spousal immunity”; OR
2. the “confidential marriage communications privilege.”

Question 29

Who may invoke the spousal immunity privilege in federal court?

Answer 29

In federal court, the ONLY person who may invoke the spousal immunity privilege is a spouse being called as a witness, who may refuse to testify if they so choose.

Question 30

Who is the holder of the attorney-client privilege?

Answer 30

The client is the holder of the privilege. Disclosure is not permissible unless the privilege is waived by the client or an exception applies.

Question 31

When is evidence of liability insurance inadmissible?

Answer 31

Evidence of liability insurance is inadmissible to prove fault or a party’s ability to pay damages.

Question 32

When is evidence of liability insurance admissible?

Answer 32

Evidence of liability insurance is admissible:

1. to show ownership or control;
2. for impeachment purposes; OR
3. as part of an admission.

Question 33

What are “subsequent remedial measures”?

Answer 33

“Subsequent remedial measures” are evidence of safety measures, or repairs performed after an accident.

Question 34

Which spouse is the holder of “spousal immunity”?

Answer 34

The witness spouse is the holder of the privilege.

Question 35

What is the duration of the communications that can be privileged under spousal immunity?

Answer 35

Spousal immunity can only be claimed during the marriage, but covers information learned prior to the marriage.

AdaptiTip: Spousal immunity terminates upon divorce or annulment.

Question 36

Which spouse is the holder of the marital communications privilege?

Answer 36

Both spouses jointly hold this privilege. They may both assert the privilege not to disclose or prevent the other spouse from disclosing

Question 37

What is the duration of the communication that can be claimed under the marital communications privilege?

Answer 37

The marital communications privilege survives the marriage, but only covers statements made during the marriage.

Question 38

What is the effect of one spouse communicating to a third party a marital communication?

Answer 38

If one spouse knowingly communicates to a third party a martial communication, the communicating spouse loses the privilege by breaking confidentiality.