Privileges and Other Policy Exclusions Flashcards
Attorney/Client Privilege
1) there must be a relationship (reasonably believed)
2) applies to ANYONE who works for the attorney
3) lasts FOREVER
4) communications must be CONFIDENTIAL
Privilege is only held by..
CLIENT
Work Product
Generally protected by Attorney/ Client Privilege
Attorney/Client Privilege EXCEPTIONS
- getting advice on how to commit a crime
- dispute between Attorney & Client
Doctor/Patient Privilege
- statements about treatment or diagnosis (only about them)
- others can be present to assist doctor OR patient
Exception to Doctor/Patient Privilege
- patient puts his condition at issue or
- there’s a dispute between doctor and patient
Spousal Communication Privilege
protects confidential information disclosed during marriage
When does Communication Privilege Apply?
- applies to either civil or criminal case
- must be married when communicated but it survives divorce
- either spouse may exert privilege (refuse to disclose OR prevent the other one from disclosing)
- if waiving privilege, both spouses must waive together
Spousal Testimonial Privilege
when one spouse is called to testify
When does Testimonial Privilege apply?
- CRIMINAL case only
- must be legally married at trial
- covers events before/during marriage
- ENDS with divorce
- only the witness-spouse holds the privilege
Spousal Privilege EXCEPTIONS
- statements about future crimes
- statements about child or spousal abuse
Judicial Notice
Judge can take any judicial notice about any evidence not subject to dispute (opinion)
i.e. day of the week
When to take Judicial Notice
Judge MAY: whether or not requested
Judge MUST: if requested by a party
Judicial Notice of Law
Must: federal or state law
May: foreign law or municipal ordinance
Jury Instructions for Judicial Notice
Civil case: jury MUST accept as conclusive
Criminal case: jury MAY accept as conclusive
Subsequent Remedial Measure
- evidence that I was fixing something
- NOT ADMISSIBLE to show I was negligent
- public policy rule: encourage to fix
Subsequent Remedial Measure EXCEPTION
it IS admissible to show ownership/control
(i.e. it was his land)
Liability Insurance
- Having liability insurance is not admissible to show negligence
- MAY be admissible to show some sort of bias
Offer to Compromise/Settle
- Statement that I made that I’m offering to settle are not admissible
- NOT admissible
- public policy
- there has to be a dispute between parties for this rule to apply
Offer to Compromise + Admission
WHOLE statement is NOT admissible
Offer to Pay Medical Expense
NOT admissible for public policy
Offer to pay Medical Expense + Admission
ONLY ADMISSION is admissible
Plea Negotiations
- plea statements during negotiations
- NOT admissible UNLESS it’s coupled with admissible statement + fair to admit the whole thing
Past Sexual Conduct of Victim
NOT admissible to show other sexual behavior or sexual predisposition
[Criminal] Past Sexual Conduct of Victim EXCEPTION
1) shows consent
2) protects defendant’s constitutional rights
3) someone other than the defendant was the source of any physical evidence
[Civil] Past Sexual Conduct of Victim EXCEPTION
ONLY if it passes the balancing test (probative value outweighs the prejudicial effect)
