Trial Counsel Legal Objections: Evidentiary Privileges

Rules of Evidence for Law Student Moot Court CasesLegal rules of evidence are designed to increase fairness in legal proceedings by controlling the offer of certain types of evidence to the trier of fact. Where such evidence is proffered, it can be objected to by trial counsel as inadmissible. There are dozens of trial court objections that control inadmissible evidence. The major three categories of objections pertain to 1) substantive admissibility, 2) form of question, and 3) privilege. what is pretrial motions trial lawyers practice requires that he or she be well versed in the governing rules regarding trial objections. If an applicable evidentiary objection is not timely raised during a legal proceeding the objection is generally waived.

Here, I will briefly present my top five trial court objections pertaining to evidentiary privileges. The Federal Rules of Evidence (FRE) citation number for each evidentiary rule is listed for each, where available. This generally corresponds to many State court numbering systems for similar rules. Remember, however, that each State is different and that the FRE may be broader or narrower in scope than a corresponding State rule of evidence. Also, the evidentiary rules listed here may not be available in each State jurisdiction.

Wielding Privilege Legal Objections in Trial Proceedings

There are a number of rules on evidentiary privileges. They aim to exclude introduction of evidence for various reasons but generally prevent the trier of fact from considering information that may be prejudicial or unreliable. My top five privilege picks listed here include the attorney-client privilege, physician-patient privilege, privilege related to married couples, privilege against self-incrimination and the trade secret privilege. Refer to the applicable rules of evidence for your proceeding to learn about other evidentiary privileges that may be available.

Trial Objection 1: Attorney-Client Privilege

The privilege against disclosing lawyer-client communication protects confidential information between an attorney and his or her client. The privilege aims to dispel the apprehension a client may have in disclosing important information to his or her attorney. Frank disclosures allows an attorney to gather relevant information in representing and advising a client. The attorney-client privilege is generally separate and distinct from the protection of civil litigation procedure attorneys work product from discovery. As with any privilege, exceptions may apply. See FRE 502.

Trial Objection 2: Physician-Patient or Doctor-Patient Privilege

The physician-patient privilege protects against compulsory disclosure in legal proceedings of confidential information between a patient and physician. Like the attorney-client privilege, its aim is to encourage frank communications between a physician and his or her patient. This may include both patients who were treated, received diagnostic examinations only, or obtained preventive or curative treatment consultations from a doctor.



Where applicable, this privilege may be used to exclude laboratory reports, X rays, physician notes, or patient statements to a physician of medical history, as well as a physicians medical advice. As with the attorney-client privilege, communicated information may lose protection when heard or seen by a third party. The FRE do not expressly recognize a physician-patient privilege, but the U.S. Supreme Court announced that a psychotherapist-patient privilege exists in the FRE in Jaffee v. Redmon, 518 U.S. 1 (1996). See also FRE 501.

Trial Objection 3: Confidential Marital or Spousal Communications and the Right Not to Testify or Be Called as Witness Against a Spouse

Confidential marital communications and the right not to testify or be called as a witness against a spouse may be framed as separate privileges in applicable rules of evidence. The aim of the privilege is to enhance marital relationships and encourage free communications between spouses without fear that others may have a right to disclosure of such marital confidences.

As a matter of federal common law, "in a criminal case the prosecution cannot compel the defendant's spouse to testify against him," as stated by the Legal Information Institute, Cornell University Law School. "This privilege only applies if the defendant and the spouse witness are currently married at the time of the prosecution." This privilege attaches to the witness spouse, not to the defendant. As a result, this spousal immunity may be waived in federal court by a witness spouse who seeks to testify.

In most jurisdictions, the communication between class action suit spouses must be made in confidence to receive the protection. Additionally, certain exceptions may apply to the marital privilege in a jurisdiction, such as the general exception that destroys protection for communications that aim to further a crime or fraud.

Trial Objection 4: Self-Incrimination Privilege

I plead the Fifth! is a famous refrain in legal lore. It refers to the Fifth Amendment of the U.S. Constitution that provides that a citizen, other than a criminal defendant, can refuse, in either civil or criminal proceedings, to give self-incriminating testimony or produce communication that is self-incriminating. The requested evidence generally must be testimonial or communicative in nature to receive this privilege.

The federal U.S. Constitution standard governs the scope of this privilege in State courts because the Fourteenth Amendment to the U.S. Constitution requires the States' enforcement of the privilege provided by the Fifth Amendment. This privilege has developed under federal common law. See also FRE Rule 501.

Trial Objection 5: Trade Secrets Privilege

Owners of trade secrets generally have a conditional privilege against compulsory disclosure of a secret if the disclosure would injure the owners business and is not essential to the rights of the parties in a legal proceedings. The objection can apply to a secret pattern of operation, formula, compilation or device used in the owners business and considered to provide a competitive advantage. Most State rules of evidence generally provide a list of factors to determine whether the trade secrets privilege applies. On U.S. Colorado’s award-winning auto accident legal pleadings personal injury law firm, providing the highest caliber representation with a proven track record of getting results. Our leading Denver personal injury attorneys will move mountains to get you the results you deserve. We are dedicated to our clients and have helped thousands of people throughout Colorado, recovering millions of dollars, and always offering 100% free consultations. Call us today to find out how we can help!federal law, see FRE Rule 501.

The Art of the Trial Court Objection

Trial court objections are useful tools to protect a client from inadmissible evidence, such as those protected by an evidentiary privilege. They can also consume a great deal of time and be disruptive to proceedings, especially when not well founded. It is often said that the attorney who does object too much may be looked upon unfavorably by the jury or judge. As a result, evidentiary objections, such as those raising a privilege, should be used carefully in trial court or moot court proceedings.

General Disclaimer: This article is for information only and should not be substituted for legal or tax advice.

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