Privileges and Other Policy Exclusions

Privileges

1. Confidential communications—necessary for privilege to apply

• If overheard, privilege destroyed unless (1) no knowledge of third party’s presence or (2) third party is necessary to assist in communication (e.g., translator)

• Privilege waived if privilege holder (1) fails to timely assert it, (2) voluntarily discloses communication, or (3) contractually waives it in advance

Spousal privilege

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

o DE Point of Law—privilege also does not apply in any proceeding in which spouses' interests are adverse

Spousal immunity

• Married person cannot be compelled to testify against his spouse in any criminal proceeding regardless of who defendant is

• Witness-spouse holds privilege in federal court and majority of states; party spouse holds privilege in minority of states

• Applies to testimony about events before and during marriage; privilege expires upon divorce or annulment

Confidential marital communications

o Confidential spousal communication during marriage is privileged

o Majority view (and most federal courts)—both spouses hold privilege in civil and criminal cases; either spouse may assert privilege and refuse to testify about communication or prevent other spouse from testifying

o Privilege begins with marriage and continues indefinitely

o DE Point of Law—waived if communication is later disclosed to a third party by its maker

Attorney-client privilege

• Confidential communication between client (who holds privilege) and attorney for obtaining or providing legal advice or representation (attorney does not need to give advice or agree to representation)

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

  • Federal law extends privilege to communications by a non-control-group employee (1) about matters within employee’s corporate duties (2) made for securing legal advice for corporation client

Attorney-client privilege - Exceptions for communications:

o Made to enable or aid commission of what client knew or should have known was crime or fraud

o Relevant to dispute between attorney and client or former client

o Relevant to dispute between parties who claim through same deceased client

o Between former co-clients who are now adverse to each other

Attorney Work product

—documents prepared or compiled in anticipation of litigation protected unless party seeking disclosure (1) demonstrates substantial need and (2) cannot obtain information by any other means without undue hardship

• Subject to crime-fraud exception

Physician-patient privilege

• Statement privileged if made for obtaining medical treatment

• Patient holds privilege

• Privilege does not exist if:

  • information acquired for reasons other than treatment

  • Patient’s physical condition is at issue

  • Statement is part of crime

  • Dispute exists between patient and physician

  • Patient contractually waives privilege or

  • Federal question case.

Psychotherapist-patient privilege

—patient holds privilege, but privilege does not exist if patient’s mental condition is at issue, statement was result of state-ordered exam, or case is commitment proceeding against patient

Self-incrimination

—Fifth Amendment protection allows witness to refuse to give testimony that may incriminate witness

• Covers only current statements

• Does not apply to physical characteristics or mannerisms

• Does not apply to corporations or other organizations

Clergy-penitent

• DE Point of Law—applies to communication between individual and cleric serving as individual's spiritual advisor

Accountant-client

DE Distinction—not recognized in DE

Professional journalist—no federal privilege regarding source

• DE Point of Law—limited privilege; nonadjudicative proceedings: journalists may decline to testify about source or content of information obtained in scope of professional activities; adjudicative proceedings: journalists may only decline if reporter states under oath that disclosure (1) would violate express or implied agreement of source confidentiality and (2) would substantially hinder reporter's source relationships

Government privilege

—government privileged against disclosing informant’s identity in criminal case and communication of official information by or to public officials

DE Point of Law

—political and informant privileges also recognized

DE Point of Law—waiver - Intentional disclosure

Intentional disclosure—privilege or protection waived by intentionally disclosing (or consenting to disclosure of) any significant part of protected privilege

DE Point of Law—waiver - Waiver scope

Waiver scope—waiver extends to undisclosed information if (1) waiver intentional, (2) disclosed or undisclosed information concerns same subject matter, and (3) in fairness, they should be considered together

DE Point of Law—waiver - Inadvertent disclosure

Inadvertent disclosure—no waiver if (1) disclosure inadvertent, (2) holder took reasonable steps to prevent disclosure, and (3) holder promptly took reasonable steps to rectify

Public-policy exclusions - Subsequent remedial measures

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

• Admissible for other purposes such as impeachment, ownership or control, or feasibility of precautionary measures

Public-policy exclusions - Compromise offers and negotiations

• Not admissible by either party to prove or 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 claim of undue delay, or prove obstruction of criminal investigation or prosecution

• Admissible in subsequent criminal case if made during compromise negotiations with government agency during its regulatory, investigative, or enforcement authority

• Settlement agreements not admissible in suit on original claim to prove validity of claim, or by third parties to prove or disprove validity or amount of disputed claim that third person has asserted against party involved

Public-policy exclusions - Evidence of payment, offers, or promise to pay medical expenses

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

Public-policy exclusions - Plea negotiation

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

Public-policy exclusions - Plea negotiation Exceptions

—another statement made during same plea or negotiation has already been admitted, and fairness requires statement in question also be admitted; also admissible in subsequent perjury prosecution if they were false statements made under oath, on record, and with counsel present

Public-policy exclusions - Liability insurance

• Not admissible to prove whether person acted negligently or wrongfully

• Admissible to prove agency, ownership or control, or witness’s bias or prejudice

• DE Distinction—in civil trial, failure to wear seatbelt (or other occupant protection) is inadmissible as evidence

Public-policy exclusions - Sexual conduct - Victim’s conduct

o Rape shield—evidence of sexual behavior or predisposition generally not admissible in any proceeding involving sexual misconduct

• DE Distinction—opinion, reputation, or specific instances of conduct not admissible to prove consent; rule does not apply to evidence of victim's sexual conduct with defendant

o Specific acts admissible to prove defendant not source of physical evidence in criminal case

o Sexual behavior or predisposition of victim admissible in civil case if probative value substantially outweighs unfair prejudice

o Reputation admissible only if placed in controversy by victim

Public-policy exclusions - Sexual conduct - Defendant’s conduct

—evidence of sexual assault in criminal or civil case admissible to prove any relevant matter (not limited to convictions)

• DE Distinction—DE has not adopted federal rules regarding admissibility of similar crimes evidence in sexual assault and child molestation cases