Evidence Rules 5

  1. Spousal privileges
    Spousal immunity:

    • Spouse of criminal defendent cannot be compelled to testify against spouse
    • Applies to events occurring before and during marriage
    • Valid only during marriage
    • NY Rule: no spousal immunity, except in adultery actions (tho spouse may testify to prove marrriage, disprove adulter, or disprove a defense), no testifying as to nonaccess during wedlock to show illigitimacy of child except in parternity proceedings or child support enforcement proceedings

    Confidential marital communications:

    • Covers communications during marriage in reliance on the sanctity of marriage
    • Held by BOTH spouses (criminal defendent may block spouse from testifying)
    • Extends beyond termination of marriage, but only covers communications from during marriage
    • Doesn't cover: jointly committed crimes, communications made in course of spouse abuse, or communications about ordinary business matters
  2. Attorney-client
    • Must be intended to be confidential
    • Must be communicated for the purpose of seeking legal advice or representation
    • Client holds the privilege, attorney must assert it on client's behalf.


    • Work product doctrine - generally unobtainable. But may be upon showing of substantial need and undue hardship in obtaining it otherwise.
    • Doesn't cover info relating to future crimes.
    • Disputes between attorney and client
  3. Other Privileges
    • Doctor-patient - only for info conveyed for reasons of treatment and not where patient's physical condition is at issue. In NY, does not cover info relating to mental or physical condition of deceased patient, unless the info would disgrace memory of decedent.
    • Psychotherapist-patient - NY: pyschiatrist may testify about defendant's menta; condition, but may not disclose specific statements made by defendant during examination.
    • Self-incrimination
    • Clergy-penitent - if communication was made in confidence for the purpose of obtaining spiritual guidance.
    • Social worker-client
    • Rape counselor-client
    • Parent-child
    • Wire communication (obtained by illegal eavesdropping.
  4. Public policy exclusions
    Liability insurance not admisible to prove negligence or wrongdoing, but admissible to show ownership, control, or bias.

    Subsequent remedial measures admissible to prove ownership, control, or concealment of evidence, but not to show negligence or culpable conduct. NY: exclusion not applicable in strict liability cases to show manufacturing defect.

    Settlement offers not admissible to prove liability or as a prior inconsistent statement.. But offer to settle for less than undisputed liability amount is admissible.

    Plea negotiations generally inadmissble.

    Victim's past sexual conduct inadmissible except:

    • Criminal trial - to show defendant not source of semen, past relations with defendant to show consen, or when constitutional rights of defendant demand it.
    • Civil cases - if probative value substantially outweighs prejudicial effect and harm to victim.
    • NY: may show victim was convicted of prostitution within three years of the alleged sexual offense; and defense may introduce evidence to rebut evidence of alleged victim's virginity.
Card Set
Evidence Rules 5