Privileges and Other Policy Exclusives

Question 1

How are communications confidential?

Answer 1

They need a privilege to apply

Question 2

What if a confidential communication is overheard?

Answer 2

Privilege is destroyed UNLESS
-> No knowledge of third parties’ presence
OR third party is necessary to assist in communication (example given a translator)

Question 3

When is confidential communication privilege waived?

Answer 3

If privilege holder
-> Fails to timely assert it
-> Voluntarily discloses communication
OR
-> Contractually waives it in advance

Question 4

What is spousal immunity?

Answer 4

Married person cannot be compelled testify against his spouse in any criminal preceding regardless of who D is

Question 5

Who holds spousal immunity between a witness-spouse and a party spouse?

Answer 5

Majority rule:
In federal courts and a majority of states, the witness spouse holds the privilege and may choose to testify but cannot be compelled to do so.

Minority rule:
In a minority of jurisdictions, the party spouse (as opposed to witness-spouse) holds the privilege and may prevent the witness-spouse from testifying even if the witness-spouse wants to testify.

Question 6

What testimony does spousal immunity apply to?

When does the spousal immunity privilege expire?

Answer 6

Applies to testimony about events before and during marriage.

Privilege expires upon divorce and annulment.

Question 7

What are confidential marital communications?

Answer 7

They are spousal communications during marriage which are privileged.

Question 8

What is the majority view regarding confidential marital communications?

Answer 8

Both spouses hold the privilege in civil and criminal cases, and either spouse may assert the privilege and refuse to testify about the communication OR prevent the other spouse from testifying.

Question 9

When does the confidential marital communications privilege start and end?

Answer 9

Privilege begins with marriage, and continues indefinitely.

Question 10

In which situation does neither spousal privilege apply?

Answer 10

Neither spousal privilege applies when one spouse sues another or spouse is charged with a crime against the other or the children of either.

Question 11

What is an attorney-client privilege?

Answer 11

Confidential communication between client (who holds privilege) and attorney for the purpose of obtaining or providing legal advice or representation (attorney doesn’t need to give advice or agree to representation).

Question 12

Does the attorney-client privilege cover material said in the presence of a third-party?

Answer 12

Generally no, unless the third-party is actually a
-> co-client
-> attorney’s agent (e.g. attorney’s assistant, secretary, or consultant)

Question 13

How long does the attorney-client privilege exist?

Answer 13

Privilege exists until waived by the client (or the client’s guardian or successor in interest). The privilege can survive termination of the attorney-client relationship and even the client’s death.

Question 14

How does the attorney-client privilege relate to communications by non-control-group employee?

Answer 14

Federal law extends privilege to communications by a non-control-group employee
-> about matters within the employees’ corporate duties
-> made for the purpose of securing legal advice for corporation client

Question 15

What are the exceptions for communications under the attorney-client privilege?

Answer 15

Exceptions for communications:
-> made to enable or aid commission of what client knew or should have known was crime/fraud
-> relevant to dispute between attorney and client or former client
-> relevant to dispute between parties who claim through the same deceased client
-> between former co-clients who are now adverse to each other

Question 16

What are work product documents?

Answer 16

Work product documents are prepared or compiled in anticipation of litigation and are protected unless party seeking disclosure demonstrates a substantial need, AND cannot obtain the information by any other means without undue hardship.

Question 17

What exception is work product subjective to?

Answer 17

It’s subject to the crime-fraud exception.

Question 18

Who holds the privilege in a physician-patient privilege, and how does the privilege work?

Answer 18

Patient holds privilege, which means that only the patient can waive the privilege.

Privilege covers statements so long as made for the purpose of obtaining medical treatment.

Question 19

When does the physician-patient privilege not exist?

Answer 19

Privilege does not exist if:
-> Information acquired for reasons other than treatment
-> Patients’ physical conditions is at issue
-> Statement is part of crime
-> Dispute exists between physical and patient
-> Patient contractually waives privilege
-> Federal question case

Question 20

What is psychotherapist-patient privilege?

Answer 20

Patients holds privilege, but privilege doesn’t exist if patients’ mental condition is at issue, statement was result a state order exam or case is a commitment proceeding against the patient.

Question 21

What does Fifth Amendment protect from?

Answer 21

The Fifth Amendment protection allowing witness to refuse to give testimony that may tend to incriminate himself (self-incrimination):
-> Covers only current statements
-> Does not apply physical characteristics or mannerisms
-> Does not apply to corporations or other organizations

Question 22

What are four other types of privileges?

Answer 22

1. Clergy-penitent;
2. Accountant-client;
3. Professional journalist - no federal privilege regarding source (only some states recognize this privilege);
4. Government privilege - government privilege against disclosing informants’ identity in a criminal case and communication of official information by or to public officials.

Question 23

What are subsequent remedial measures?

Answer 23

When measures are taken that would have made an earlier injury or harm less likely to acquire (example given repairing an area where a customer tripped)

Question 24

When is subsequent remedial measures admissible?

When are they not admissible?

Answer 24

Admissible for other purposes such as: impeachment, ownership/control, or feasibility of precautionary measures.

Not admissible to prove negligence, culpable conduct, defective product/design, or need for warning/instruction.

Question 25

Does the subsequent remedial measures rule apply to measures taken prior to an injury?

Answer 25

This exclusion does not apply to remedial actions taken before the plaintiff was injured.

Question 26

What are compromise offers and negotiations, and when are they not admissible?

Answer 26

Compromise offers made or accepted by any party, as well as any conduct or statement made during compromise negotiations, are not admissible to prove or disprove the validity or amount of a disputed claim.

In addition, compromise offers may not be admitted for impeachment by prior inconsistent statement or contradiction.

Question 27

When are compromise offers and negotiations admissible?

Answer 27

Admissible to prove bias or prejudice of witness, negate claim of undue delay, or prove obstruction of criminal investigation/prosecution.

Question 28

When are compromise offers and negotiations admissible in a subsequent criminal case?

Answer 28

A person’s conduct or statement made during compromised negotiations with a governmental agency is admissible and a subsequent criminal case if made during comprised negotiations with governmental agency during its regulatory, investigative, or enforcement authority.

Question 29

When are compromise offers and negotiations not admissible in a suit relating to the original claim?

Answer 29

Settlement agreements not admissible in suits on the original claim to prove validity of claim, or by third parties to prove/disprove validity or amount of a disputed claim that the third person has asserted against the party involved.

Question 30

Is evidence of payment, offers, or promise to pay medical expenses admissible to prove liability for the injury?

Answer 30

Evidence of payment, offers, or promise to pay medical expense not admissible to prove liability for the injury but statements that accompany the payment, offer, or promise to pay are admissible.

Question 31

Are plea negotiations admissible?

Answer 31

Withdrawn guilty pleas, pleas of no contest, and statements made while negotiating plea bargains with a prosecutor or during plea proceedings are not admissible.

Question 32

What are the exceptions to the inadmissibility of plea negotiations?

Answer 32

Statements made during pleas or negotiations are admissible. However, if another statement is made during the same plea or negotiation has already been admitted, fairness requires that the statement in question also be admitted.

Such statements are also admissible in a subsequent perjury prosecution if they were false statements made under oath, on the record, and with counsel present.

Question 33

When is liability insurance not admissible and when is it admissible?

Answer 33

Not admissible to prove whether a person acted negligently or wrongfully.

Admissible to prove agency, ownership/control, or witnesses’ bias/prejudice.

Question 34

What is the rape shield rule?

Answer 34

Under the rape shield rule, evidence offered to prove the sexual behavior, or sexual predisposition of a victim (or alleged victim) generally is not admissible in any civil OR criminal proceeding involving sexual misconduct.

Question 35

When is evidence of specific incidences of a victim’s sexual behavior admissible in a criminal case?

Answer 35

Specific acts admissible to prove D not source of physical evidence in criminal case.

Question 36

When is a victim’s sexual behavior / predisposition admissible in a civil case?

Answer 36

Sexual behavior/ predisposition of victim admissible in civil case IF probative value substantially outweighs unfair prejudice.

Question 37

When is victim’s sexual reputation admissible in civil cases?

Answer 37

Reputation admissible only if placed in controversy by victim.

Question 38

When is defendant’s sexual assault conduct admissible evidence?

Answer 38

In a criminal or civil case, in which a defendant is accused of sexual assault, attempted sexual assault, or conspiracy to commit sexual assault, evidence that the defendant committed any other sexual assault is admissible to prove any relevant matter.

Question 39

How does the federal inadvertent-waiver rule?

Answer 39

The federal inadvertent-waiver rule applies to
-> (1) communications covered by the attorney-client privilege
AND
-> (2) materials protected under the attorney work-product doctrine.

Under this rule, disclosure of a communication protected by the attorney-client privilege or material that qualifies as attorney work product does not operate as a waiver in a federal or state proceeding if:
-> the disclosure was made in a federal proceeding or to a federal agency
-> the disclosure was inadvertent
-> the privilege holder had taken reasonable steps to prevent disclosure
AND
-> the privilege holder promptly took reasonable steps to rectify the error.