We know that logically and legally relevant should be admitted so as to assist the trier of fact in reaching a proper ruling or verdict. That being said we also know that there are times when even this logically and legally relevant evidence is precluded from the courtroom. The reasoning behind such exclusions typically boils down to policy reasons which the legislature believes are significant enough to justify the exclusion. Of course, there are exceptions to exceptions as we often see. We will explore some privileges here and the exceptions to those privileges.
The first privilege, which most lawyers will not typically be confronted with, is that of the privilege which protects military and state secrets. These secrets are considered to be absolute. This means that even with a showing by the discovering party that is a compelling need for this evidence it will still be excluded. The question then becomes what evidence falls within this protected class. There is no exact definition but generally such information as military combat operation plans, military capabilities of our own and potential enemy nations, existence and design of new weaponry and equipment, existence and location of clandestine intelligence operations, secret communication codes, and the like. The policy reason for excluding this evidence is commonsensical. Our military has a strong need to protect its secrets for the protection of the American people.
Now, beyond these military and state absolute privileges there are other similar governmental privileges which though protected do not receive the “absolute” privilege guaranteed to military and state secrets. We can call these secrets “minor” governmental privileges. This set of privileges does not protect the end result of decision making by governmental officials but rather protects the communications which lead up to any ultimate decisions. This is analogous to the prohibition which precludes settlement negotiations from the record, which we will dive into later. The idea here is that members of the government should be able to communicate amongst one another freely, without fear of criticism, in negotiating and reaching decisions. Thus any documents, data, testimony, and so forth which is used or entered in the decision making process is generally privileged. That being said, the ultimate decision is not privileged, unless of course it falls within a different privilege.
What makes this “predecisional, deliberative process privilege” minor as opposed to absolute as is the military and state absolute privilege is that the privilege can be overcome. To overcome the privilege the discovering party would need to show some overwhelming need. After such a showing the court must conduct a balancing test to determine if such evidence should be allowed in. If you are seeking to assert the privilege you will need to be able to make a foundational showing that you represent such a holder, a governmental agency. That such information is predicisional in nature, that the information has been kept confidential and that the government has a need for this type of information and more importantly a need for the free flow of this type of communication. The party seeking to overcome this privilege needs to make a showing that the information is highly relevant to the case and that there is no other reasonable source for the information. If you seek to establish this privilege or overcome this privilege in trial then you should probably do so your motion in limine.
Beyond these privileges there are some other governmental privileges which are worthy of being aware of. One of those is the privilege which protects the identity of an informant. The privilege not only protects the identity of the information but also the information supplied by that informant if the content of that information would indicate the identity of the revealing party. The policy reason behind this privilege is rather commonsensical. We want witnesses to feel safe in coming forward with secret information which can be used to prosecute criminals. This privilege, like the predicisional deliberative process privilege can be overcome by a sufficient showing from the discovering party. To overcome the privilege the party seeking such information should be able to demonstrate that the information is so important that it could determine the accused’s guilt or innocence in a criminal case. With a showing such as this the court will typically see through the privilege.
If you anticipate having to assert the privilege at trial or overcome an objection based on the privilege at trial then you need to be ready to voir dire the witness at trial. Of course, it is always wise to resolve issues such as this pre-trial. You do this for two reasons. For one, you want to be able to reasonably plan out your case as much as possible without having to think about various strategies you will employ depending on the outcome of an objection. The second reason is that often times once the questioning counsel has asked a potentially privileged question before the jurors the damage is done. The damage may be done before your witness supplies an answer even if your judge sustains your objection. Limiting instructions probably do more harm than good as it is not realistic to think that jurors can discard what they have already hears. Moreover, the limiting instruction just calls attention to the topic you wish to exclude one more time, this time by the judge. Thus resolve these potential issues pretrial to the extent possible.
An area of privilege that we will see more commonly in the civil arena is that of the privilege which protects against subsequent repairs by the defendant. The reason why remedial measures such as this are privileged is that the legislature wants to encourage such conduct. As soon as this type of conduct is discoverable such conduct may be hampered. That being said it is only inadmissible if the discovering party is seeking to use the conduct to establish negligence, culpability, product defect, or need for a warning. If the discovering party is smart enough to demonstrate an alternative need for the evidence then such conduct may be presented. Some of the other common basis for establishing this evidence may be to prove ownership, control, or to refute the defense that such remedial measures were not feasible. This is one of those areas where you are definitely going to want to resolve potential issues pretrial, if you are on the Defense. As a limiting instruction is not going to do you any good after the plaintiff has inquired on remedial measures before a jury. A smart plaintiff’s lawyer will find an alternative use for the remedial measures so as to get the evidence before the jurors as such evidence is powerful.
If the issue is not resolved by pretrial motion then the parties each need to be ready to lay a foundation by conducting a voir dire of the witness. The party seeking to exclude such evidence needs to demonstrate that the defendant took such remedial measures so as to provide greater safety and that the defendant took that action after the incident at issue in the case. The party seeking to get around the privilege by offering an alternate reason for the evidence will need to be ready to lay a sufficient offer of proof to the court. That offer of proof will need to consist of a showing as to what the witness will testify to and that such testimony is relevant to another issue of the case other than just negligence generally. Finally, the offer of proof should be that the issue which the evidence seeks to prove is actually in dispute.
If you are the party seeking to introduce subsequent remedial measures then you need to be careful about attempting to illicit this information at trail without a pretrial ruling on the issue. The reason is that many courts deem reference to remedial measures to be highly prejudicial. If the judge doesn’t by your alternate need offer of proof then you risk more than just a limiting instruction, which as stated before has no real impact on the moving party. If the defendant moves for a mistrial the judge may in fact grant it given the prejudicial effect of the statement.
Another more commonly encountered privilege is that of the privilege which prohibits settlement negotiations from entering the record. The policy reason for the privilege is that we want parties to settle cases. This is all the more important given the large volume of cases on each court’s docket today. If parties feel that they can communicate openly without fear of reprisal then it is thought that cases will settle more frequently. Like the remedial measures privilege the settlement negotiation privilege may be overcome if the moving party can show that the evidence goes to some other relevant issue other than the claims validity. One such alternative might be to establish witness bias for instance. If you seek to overcome the privilege you will need to be ready with an offer of proof for the court that establishes this alternative use of the evidence. This is again very sensitive information, such that a mistrial might be granted if the information is presented in trial without a pretrial order allowing for as much. Thus if you are seeking to overcome the privilege you ought to do so in your pre-trial motion in limine.
The above article reflects some evidentiary rules as promulgated by the Federal Rules of Evidence. Remember that states have their own rules of evidence which may or may not reflect the Federal Rules of Evidence. For more information on this topic I refer you to Edward Imwinkelried, (2012) Evidentiary Foundations. Evidentiary Foundations, is a superb publication providing valuable insight into this subject matter and it is the source of much of my own information on the subject, as outlined above. I, Eric Roy, am by no means an expert in this area of law. I write these blogs/articles solely for my own personal learning benefit. Rather than rely on my statements I would suggest you go directly to your local evidentiary rules.