Privileges and other policy exclusions

Question 1

Third parties that destroy confidentiality

Answer 1

Generally, if the communication is overheard by a third party, the privilege is destroyed. However, the presence of the third party does not destroy the privilege if:

i) The first two parties do not know that the third party is present (e.g., an unknown eavesdropper); or
ii) The third party is necessary to assist in the communication (e.g., a translator).

Question 2

Waiving a privilege

Answer 2

A privilege may be waived if the person who holds the privilege:

i) Fails to assert the privilege in a timely manner (i.e., when the testimony is offered);
ii) Voluntarily discloses, or allows another to disclose, a substantial portion of the communication to a third party, unless the disclosure is privileged; or
iii) Contractually waives the privilege in advance.

Question 3

Spousal immunity

Answer 3

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.

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

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

Question 4

Confidential marital communications

Answer 4

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

The majority view, which is followed by most federal courts, is that the privilege is held by both spouses.

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

Question 5

Attorney Client Privilege

Answer 5

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

Question 6

Confidential- A/C privilege

Answer 6

The communication must be intended to be confidential in order to be privileged. A communication made in the presence of a third party generally is not privileged, but the presence of, or communication by or through, a representative of the client or the attorney does not destroy the attorney-client privilege.

Question 7

Communication A/C privilege

Answer 7

The communication must be for the purpose of seeking legal advice or representation, but the attorney does not need to give advice or agree to the representation for the privilege to exist.

Question 8

The attorney-client privilege does not protect confidential communications when:

Answer 8

i) Communications made to enable or aid the commission of what the client knew or should have known was a crime or fraud;
ii) Communications relevant to a dispute between attorney and client (e.g., a malpractice allegation);
iii) Communications relevant to a dispute between parties who claim through the same deceased client; and
iv) Communications between former co-clients who are now adverse to each other.

Question 9

Work product documents

Answer 9

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 (i) demonstrates a substantial need for the information, and (ii) cannot obtain the information by any other means without undue hardship. The mental impressions, conclusions, and trial tactics of an attorney are always protected from discovery

Question 10

Subsequent remedial measures

Answer 10

When measures are taken that would have made an earlier injury or harm less likely to occur (e.g., repairing an area where a customer slipped), evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defective product or design, or the need for a warning or instruction.

However, evidence of subsequent remedial measures may be admissible for other purposes, such as impeachment or—if disputed—ownership or control of the cause of the harm (e.g., a car) or the feasibility of precautionary measures

Question 11

Compromise Offers and Negotiations

Answer 11

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 contradiction.

Evidence of settlement offers and negotiations is admissible to prove bias or prejudice of a witness, to negate a claim of undue delay, or to prove obstruction of a criminal investigation or prosecution.

Question 12

Negotiation with a governmental agency

Answer 12

A person’s conduct or statements made during compromise negotiations with a governmental agency (e.g., the IRS) during the exercise of its regulatory, investigative, or enforcement authority may be introduced in a subsequent criminal case against the person.

Question 13

Compromise Offers and Negotiations and all parties involved

Answer 13

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. Moreover, when there are more than two parties, a settlement agreement entered into by a party with an adverse party cannot be used by a remaining adverse party to prove or disprove the validity or amount of an unsettled claim.

Question 14

Offers to Pay Medical Expenses

Answer 14

Evidence of the payment, offer to pay, or promise to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.

Question 15

Plea Negotiation

Answer 15

In a civil or criminal case, evidence of the following is generally not admissible against the defendant who made the plea or participated in the plea discussions:

i) Withdrawn guilty pleas;
ii) Pleas of no contest (i.e., a nolo contendere plea);
iii) Statements made while negotiating a plea with a prosecutor (e.g., an offer to plead guilty); and
iv) Statements made during a plea proceeding (e.g., a Rule 11 proceeding under the Federal Rules of Criminal Procedure).

Question 16

Plea Negotiation- Exceptions

Answer 16

Statements made during pleas or negotiations are admissible, however, if another statement made during the same plea or negotiation has already been admitted, and fairness requires that the statement in question also be admitted. Such statements also are admissible in a subsequent perjury prosecution if they were false statements made under oath, on the record, and with counsel present

A defendant may waive the protection of Rule 410 if the waiver is knowing and voluntary

Question 17

Liability Insurance

Answer 17

Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. However, such evidence may be admissible for another purpose, such as to prove agency, ownership, or control, or to prove a witness’s bias or prejudice.