Privileges and Other Policy Exclusions Flashcards
What is the legal standard of admissibility for evidence of liability insurance?
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
*excluding evidence of liability insurance to prove fault is the result of a public policy that encourages ppl to carry liability insurance
When are subsequent remedial measures ADMISSIBLE and INADMISSIBLE?
ADMISSIBLE - to show ownership or control, to rebut a claim of infeasibility, or to prove that evidence was destroyed
INADMISSIBLE - to show negligence, culpable conduct, the existence of a product or design defect, or the need for a warning
*public policy encouraging people to make repairs and improvements for safety
Is evidence of a rape victim’s character admissible?
NO.
*exceptions include suing a victim’s prior sexual history to prove the source of physical evidence or prior consensual acts between ∆ and victim
What is a “testimonial privilege”?
Allows someone to refuse to disclose or precent someone else from disclosing confidential info, in the interest of protecting a specific relationship or interest
*the FRE do NOT contain a specific provision on privileges; rather, federal courts apply common law privilege rules
What are the 5 common law privileges recognized in federal courts?
- attorney-client
- spousal immunity
- confidential marital communications
- psychotherapist/social worker-client
- clergy-penitent
*there is no doctor-patient privilege in federal courts (unless applying state law while sitting in diversity)
What is the “attorney-client privilege”?
Means the client (or their rep) 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
*this privilege does not apply to objects or preexisting documents
When does the AC prove apply to client corporations?
when the client is a corp, the privilege protects statements made by ANY officials or employees who work for the corp IF they were authorized or directed by the corp to make those statements
What is the three part legal standard for the physician-patient privilege?
Allows a patient to refuse to disclose and prevent their physician from disclosing:
- confidential info exchanged while the physician was attending to the patient
- while the physician was acting in a professional capacity IF
- the info was necessary for medical treatment
*this privilege applies indefinitely
What are the 2 primary exceptions to the privileges based on marital relationship?
Immunity will NOT apply, based on the existence of a marital relationship in cases involving:
- crimes against the testifying spouse or spouse’s children (eg, assault, battery, incest, child abuse) OR
- communication in furtherance of joint crime/fraud
What is the legal standard for “spousal immunity”?
In FEDERAL CRIMINAL cases - “spousal immunity” allows a married person to choose whether or not to testify as a witness against they spouse, the accused
-the privilege belongs ONLY to the witness-spouse, which is why the ∆-spouse may NOT compel or prohibit testimony from the witness-spouse
*this privilege does not survive divorce or annulment, although it covers events that predate the marriage
What is the legal standard for the “confidential marital communications privilege”?
Two married spouses Amy 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
*divorce does NOT terminate the privilege retroactively, although the privilege does not protect communications exchanged post-divorce
Who may assert a testimonial privilege?
Only the person who holds the privilege (ie, whose interest is protected) may assert
*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
What are the 4 ways a testimonial privilege may be waived?
A person may waive his privilege by:
- voluntarily disclosing the privileged info (unless disclosure is also privileged)
- contractually agreed to waive the privilege
- failing to object when privileged testimony is offered
- failing to invoke the privilege (if invocation is required)
*if an eavesdropper overhears privileged information, the testimonial privilege will remain intact
When does the attorney-client privilege apply to an agent acting on behalf of the client?
the communication through an agent is protected if it is necessary to change information between the attorney and client
*this may include communications w/ a secretary, the client’s accountant, or an interpreter
When does the attorney-client privilege apply to joint client representation?
-when an attorney represents 2 parties in a transaction, if one or both of the parties has a later dispute w/ a third party, the privilege will apply
-HOWEVER - if a dispute later arises between the jointly-represented parties, the privilege will NOT apply
*policy seeks to ensure that multiple parties can expect confidentiality between them (as the clients) and other people
What is the duration of the AC privilege?
Applies indefinitely, including after the AC relationship ends and beyond death of the client
What are the 4 exceptions to attorney-client privilege?
The AC privilege does not apply in situations involving:
- legal adivice sought in furtherance of a future wrongdoing or crime (fraud)
- disputes between the attorney and client (eg, breach of duty or malpractice)
- parties who have claims through the same deceased client OR
- legal advice put in issue by the client (eg, client argues they are not liable because they followed the attorney’s advice)
What are the 4 exceptions to they physician-patient privilege?
Does NOT apply when:
- the patient puts their physical condition in issue
- the patient sought the medical services in furtherance of a future wrongdoing or crime (eg, fraud)
- a legal dispute arises between the physician and patient; OR
- the patient contractually agreed to waive the privilege
*because FRE doesn’t contain a physician-patient privilege, it does NOT apply in federal courts
What does the psychotherapist/social worker-client privilege cover?
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
*this privilege is recognized in federal courts, while the phsycian-patient privilege is not
What are the 4 differences between the “confidential marital communications privilege” and “spousal immunity”?
In contrast to spousal immunity, the confidential marital communications privilege:
- belongs to BOTH spouses (spousal immunity only belongs to the spouse-witness)
- does NOT cover events predating the marriage (spousal immunity does)
- survives divorce and death (spousal immunity does not) AND
- applies to BOTH civil and criminal cases (spousal only applies to criminal cases)
What does the privilege for the identity of police informants cover?
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
*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
When will an offer to settle or compromise be admissible?
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
*excluding evidence of offers to settle or compromise is based on public policy encouraging people to settle rather than proceed w/ litigation
Are statements of fact made during settlement negotiations admissible?
NO.
Any conduct or statements made during compromise or settlement negotiations are inadmissible, including any admissions of fact
*compare to offers to pay medical expenses, where admissions of fact ARE admissible
When is an offer to pay medical expenses admissible?
An offer to pay (or actual payment) of a person’s medical expenses is INADMISSIBLE to prove liability for the injury
*this is true regardless of whether there is a claim or threat of litigation
Are statements of fact made during an offer to pay medical expenses admissible?
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
*compare to offers to compromise, where admissions of fact are inadmissible
When are withdrawn guilty pleas or offers to plead guilty admissible?
NEVER.
including any statements made during plea negotiations are NEVER admissible because any evidentiary value is outweighed by prejudicial effect
*this exclusion applies in BOTH CRIM AND CIVIL CASES
Does the physician-patient privilege apply in criminal proceedings?
NO.
Most states do NOT allow the physician-patient privilege in criminal proceedings ONLY CIVIL
*the FRE does NOT contain physician-patient privilege, but most individual states have codified it by statute
What are the 2 privileges based on marital relationship?
- spousal immunity
- the confidential marriage communications privilege
Who may invoke the spousal immunity privilege in federal court?
In fed court - ONLY person who may invoke the spousal immunity privilege is a spouse being called as a witness, who may refuse to testify they they so choose
Who is the holder of the attorney-client privilege?
the client
-disclosure is NOT permissible unless privilege is waived by the client or an exception applies
When is evidence of liability insurance inadmissible?
inadmissible to prove fault or a party’s ability to pay damages
When is evidence of liability insurance admissible?
Admissible:
- to show ownership or control
- for impeachment purposes
- as part of an admission
What are “subsequent remedial measures?
are evidence of safety measures, or repairs performed after an accident
Which spouse is the holder of “spousal immunity”?
witness spouse is the holder of the privilege
What is the duration of the communications that can be privileged under spousal immunity?
spousal immunity can only be claimed during the marriage, but covers info learned prior to the marriage
*terminates upon divorce/annulment
Which spouse is the holder of the marital communications privilege?
BOTH
They may both assert the privilege not to disclose or prevent the other spouse from disclosing
What is the duration of the communication that can be claimed under the marital communications privilege?
survives the marriage, but only covers statements made DURING the marriage
What is the effect of one spouse communicating to a 3rd party a marital communication?
if one spouse knowingly communicates to a third party a martial communication, the communicating spouse loses the privilege by breaking confidentiality
