Privileges & Other Policy Exclusions

Question 1

Attorney-Client Privilege

Answer 1

= a confidential communication b/t client & his attorney for purpose of obtaining or providing legal assistance to the client

1. there must be a RELATIONSHIP (i.e., client believes someone was his attorney)
2. communication must be b/t CL & Attorney -OR- b/t CL & someone who’s providing legal/professional services on that Attorney’s behalf
3. communication must be intended to be CONFIDENTIAL (e.g., in private office - NOT at a stadium)

*the CLIENT holds this privilege *client can WAIVE Atty-CL Privilege

*this privilege LASTS FOREVER(even after termination of representation & death)

*see next flashcard for Exceptions

Question 2

Exceptions to Attorney-Client Privilege

Answer 2

1. Client seeks advice on how to commit a crime (in the future – NOT CL saying he committed a crime in the past)
2. dispute b/t Attorney & Client (e.g., former CL sues Atty for malpractice; or Atty sues former CL b/c CL hasn’t paid bill)

Question 3

Work Product doctrine

Answer 3

= docs an attorney creates for his own use as part of client’s case → ARE privileged (despite not being “communications” under Atty-CL Priv.)

*Attorney’s mental impressions, conclusions, and trial tactics are ALWAYS protected – BUT other docs ARE discoverable IF: (1) opposing party demonstrates substantial need for that info, AND (2) cannot obtain that info by any other means without undue hardship

Question 4

Doctor-Patient Privilege

Answer 4

= statements re: Patient’s treatment or diagnosis of current medical problem

*Dr-PT Privilege covers other people who were present AND assisting the Doctor / Patient (e.g., nurses/x-ray tech assisting Dr -OR- patient’s mom who was there to help keep patient calm)

EXCEPTIONS: (1) Patient puts his condition at issue (2) dispute b/t Dr & Patient

Question 5

Spousal Communication Privilege

Answer 5

= protects confidential info spouses disclosed to e/o during marriage (while they were legally married)

*applies in both Civil & Criminal cases

*survives divorce

*EITHER Spouse may assert this privilege to (1) refuse to disclose info OR (2) prevent the other Spouse from disclosing info

*can only be waived if BOTH Spouses agree to waive it

EXCEPTIONS: (1) conversations re: future crimes (2) conversations re: child / spousal abuse

Question 6

Spousal Testimonial Privilege

Answer 6

= when one spouse is called to testify against their spouse

*ONLY applies in Criminal cases

*must be legally married at time of trial – divorce ends this privilege

*ONLY covers events before / during marriage

*the Witness-Spouse HOLDS the privilege – i.e., Spouse who’s called to testify gets to decide if s/he asserts this privilege

EXCEPTIONS: (1) conversations re: future crimes (2) conversations re: child / spousal abuse

Question 7

Judicial Notice

(And when may / must a judge take Judicial Notice?)

Answer 7

= Judge accepting a fact without requiring formal proof b/c it’s a fact that’s not subject to dispute / opinion

–WHEN JUDGE May / Must TAKE JUDICIAL NOTICE…

– Judge MAY… → regardless of whether a party requested it…

→ OR it’s about a Municipal Ordinance / Foreign law

– Judge MUST… → if a party requests it…

→ OR it’s about a Federal / State law

• Judge COULD take judicial notice of, e.g.*: day of the week; weather is sunny
• Judge could NOT take judicial notice of, e.g.*: weather forecast for tomorrow (b/c that’s an opinion)

Question 8

If a Judge takes judicial notice of a fact, how does that affect Jury Instructions?

Answer 8

–if it’s a Civil case → Jury MUST accept the fact as conclusive

–if it’s a Criminal case → Jury MAY accept the fact as conclusive

*TIP: for a Q, just connect dots b/t “Civil”–“must” or b/t “Criminal”–“may”

Question 9

Subsequent Remedial Measures

Answer 9

= evidence that Party fixed / repaired something after an accident

→ is NOT admissible to show Party was negligent

*this is a “Public Policy” exclusion

EXCEPTION:ISadmissibleto show Party hadownership/control

Question 10

Liability Insurance

Answer 10

→ evidence that Party had liability insurance is NOT admissible to show Party was negligent

EXCEPTION: MAY be admissible to show Party was biased

Question 11

Offer to Compromise / Settle

Answer 11

→ evidence re: a Party’s offer to compromise / settle is NOT admissible

*a dispute b/t the Parties must have EXISTED at time Party made the offer

E.g., Jon gets into car accident. He gets out of car immediately and offers $10k to other driver to make it go away. Does this rule apply? → NO, b/c Jon made the settlement offer when there was no dispute b/t him & other driver

Question 12

Offer to Compromise + Admission

Answer 12

= a Party’s statement where he offered to settle/compromise AND admitted fault → the WHOLE statement is NOT admissible

*a dispute b/t the Parties must have EXISTED at time Party made the offer

Question 13

Offer to pay Medical Expenses

Answer 13

→ is NOT admissible (b/c Public Policy)

*BUT if it’s Offer AND Admission → ONLY the Admission IS admissible

Question 14

Offer to pay Medical Expenses + Admission

Answer 14

if it’s Offer AND Admission → ONLY the Admission IS admissible

Question 15

Plea Negotiations

Answer 15

→ generally, a statement made during plea negotiation is NOT admissible (e.g., plea of No Contest, Guilty Plea that’s later withdrawn, any statement re: Guilty Plea)

EXCEPTION: if Defendant’s plea negotiation statement is COUPLED WITH an admissible statement AND it’s FAIR to admit the whole statement

Question 16

Victim’s Past Sexual Conduct

Answer 16

= generally, evidence of Victim’s past sexual conduct that’s used to show Victim’s sexual behavior OR sexual predisposition is NOT admissible

EXCEPTIONS:

…in a CRIMINAL case: (1) it shows Consent, (2) it protects Defendant’s Constitutional rights, OR (3) it shows someone other than the Defendant is the source of any physical evidence

…in a CIVIL case: ONLY IF the probative value OUTWEIGHS the prejudicial effect