Privileges and Other Policy Exclusions

Question 1

Privileges and Other Policy Exclusions

Spousal Immunity and Marital Communications

Answer 1

The Spousal Testimonial Privilege applies in criminal cases only and provides that a witness-spouse cannot be forced to testify against a defendant-spouse in a criminal case as to any communications made between the two during or before their marriage. The spouse being called to testify may waive this privilege and testify anyway if they want. The Marital Communications Privilege applies in criminal and civil cases and says that one spouse may not, even if they want to, testify to any confidential communications between the couple during a valid marriage unless the other spouse waives the privilege.

Question 2

Privileges and Other Policy Exclusions

Attorney-Client and Work Product

Answer 2

The attorney-client privilege applies to confidential communications (written or oral) between an attorney and a client (or either’s agent) or prospective client made for the purpose of obtaining legal advice. The Work Product Doctrine provides that material prepared in anticipation of litigation may not be discovered absent a showing of a “subsantial need” and “undue hardship.”

Question 3

Privileges and Other Policy Exclusions

Physician/Psychotherapist-Patient

Answer 3

Confidential communicatoins between a patient and a doctor for the purpose of diagnosis or treatment are protected.

Question 4

Privileges and Other Policy Exclusions

Other Privileges

Answer 4

Journalists do not have the ability to protect their sources, there is no parent-child privilege to not incriminate your own child, there is no accountant-client privilege, and confidential spiritual communications are protected.

Question 5

Privileges and Other Policy Exclusions

Insurance Coverage

Answer 5

Insurance coverage is inadmissible to prove negligence, but may be used for other purposes (to show agency, ownership, control, or bias).

Question 6

Privileges and Other Policy Exclusions

Remedial Measures

Answer 6

Evidence of repairs or other precautionary measures made following an injury is inadmissible to prove either negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction. Rule 407 of the FRE provides that when measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence. Evidence of such measures may, however, be admissible when offered to impeach, or as proof on controverted issues of ownership, control, or feasibility of precautionary matters.

Question 7

Privileges and Other Policy Exclusions

Compromise, Payment of Medical Expenses, and Plea Negotiations

Answer 7

First, an offer to settle a disputed claim and statements made during negotiations are inadmissible, unless they being offered to impeach with bias or to negate an accusation that a party was delaying the cause. Second, an offer to pay medical bills is inadmissible to prove liability. Finally, a guilty plea is admissible, but an offer to plead guilty, a guilty plea later withdrawn, a no contest plea, and statements made during negotiations that did not result in a guilty plea are inadmissible.

Question 8

Privileges and Other Policy Exclusions

Past Sexual Conduct of a Victim (Rape Shield Doctrine)

Answer 8

In criminal cases, specific instances can be offered to prove the source of semen, injury, or other physical evidence, consent, or when excluding it would violate the defendant’s Const. rights. In a civil case, evidence is not admissible unless the probative value substantially outweighs the danger of harm or unfair prejudice (defendant must make a motion within 15 days of trial accopmanied by a written offer of proof for a hearing). The court may admit reputation evidence only if the victim places it in controversy.