Privileges And Other Policy Exclusions

Front 1

Confidential Communications

Back 1

Necessary for a privilege to apply

-If overheard by a third party, the privilege is destroyed unless:

1. no knowledge of the third party's presence

2. third party is necessary to assist in communication (i.e. translator)

The privilege is waived if the privilege holder:

1. fails to timely assert it

2. voluntarily discloses communication OR

3. contractually waives it in advance.

Front 2

Spousal Immunity

Back 2

a married person cannot be compelled to testify against his spouse in any criminal proceeding regardless of who defendant is.

-witness spouse holds the privilege in Federal Court and in a majority of the states; party spouse holds privilege in minority.

-applies to testimony concerning events before/during marriage; privilege expires upon divorce or annulment.

Front 3

Confidential marital communications

Back 3

Spousal communication during marriage is privileged when made in reliance on the sanctity of marriage.

-Majority: both spouses hold privilege in civil and criminal cases.

-privilege begins with marriage and continues indefinitely

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

Front 4

Attorney/Client Privilege

Back 4

Confidential communications between client (who holds the privilege) and attorney for purpose of seeking legal advice or representation

-privilege exists until waived.

-Federal law extends privilege to communications by a non-control group employee: i) about matters within the employee's corporate duties ii.)made for the purpose of securing legal advice for the corporation client.

Front 5

Attorney/Client Privilege

(Exceptions)

Back 5

Exceptions for communications:

1. made to enable or aid the commission of what a client knew or should have known was crime or fraud.

2. relevant to dispute between attorney and client (ex: malpractice allegation)

3. relevant to dispute between parties who claim through the same deceased client.

4. Between former co-clients who are now adverse.

Front 6

Work Product

Back 6

not a communication but protected unless the party seeking disclosure:

1. demonstrates a substantial need

2. and cannot obtain the information by any other means without undue hardship.

Front 7

Physician-patient privilege

Back 7

The statement is privilege so long as it is made for the purpose of obtaining medical treatment.

-patient holds the privilege

The privilege does not exist if:

1. info acquired for other reasons other than treatment.

2. patient's physical condition is at issue

3. statement is part of crime

4. dispute exists between the patient and the physician

5. patient contractually waives privilege

6. federal question case

Front 8

Psychotherapist-patient privilege

Back 8

patient holds privilege, but doesn't exist if patient's mental condition is at issue, statement was a result of a state ordered exam, or case is commitment proceeding against patient

Front 9

Self-Incrimination

Back 9

Fifth amendment protection allowing witnesses to refuse to give testimony that may tend to incriminate him.

-Covers only current statements.

-Does not apply to physical characteristics or mannerisms

-Does not apply to corporations or other organizations.

Front 10

Other Privileges

Back 10

-Clergy/Penitent

-Accountant/client

-Professional journalist- no federal privilege regarding source

-governmental privilege- government privilege against disclosing an informant's identity in a criminal case and communication of official information by or to public officials.

Front 11

Subsequent Remedial Measures

Back 11

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

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

Front 12

Compromise Offers/Negotiations

Back 12

Not admissible by either party to prove/disprove validity or amount of disputed claim, or for impeachment by prior inconsistent statement or contradiction.

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

-admissible in a subsequent criminal case if made during compromise negotiations with governmental agency during its regulatory, investigative, or enforcement authority.

Front 13

Evidence of Payment or Offers to Pay Medical Expenses

Back 13

Not admissible to prove liability for the injury, but statements that accompany the payment, offer or promise to pay are admissible.

Front 14

Plea Negotiations

Back 14

withdrawn guilty pleas, pleas of no contest, and statements made while negotiating plea bargain or during plea proceeding are not admissible.

Exception: another statement made during the same plea or negotiation has already been admitted and fairness requires that the statement in question also be admitted;

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

Front 15

Liability Insurance

Back 15

-not admissible to prove whether person acted negligently or wrongfully

-admissible to prove agency, ownership/control, or witness bias/prejudice.

Front 16

Sexual Conduct (of Victim)

Back 16

Rape Shield- evidence of sexual behavior/predisposition generally not admissible in any proceeding involving sexual misconduct.

-Specific acts are admissible to prove that the Defendant IS NOT the source of physical evidence in the criminal case.

-Sexual behavior/predisposition is admissible in civil case if probative value substantially outweighs unfair prejudice.

-reputation is only admissible if placed in controversy by the victim.

Front 17

Defendant's Sexual Conduct

Back 17

Evidence of sexual assault in a criminal/civil case is admissible to prove any relevant matter but is limited to convictions.