3) privileges Flashcards
use of privileges in fed ct: 501
–only CL privileges recognized as interpreted by fed cts
if diversity/civil: state law (Erie)
if fed q/civil, or crime: privilege of wit is determined by CL
privileges at CL: general rule
no privilege to:
1) refuse to be a wit
2) refuse to disclose any matter
3) refuse to produce any object/writing
CL privileges recognized in fed ct: list
1) atty-C
2) psychotherapist/pt (NOT DR PT)
3) clergyman/penitent
4) spousal immunity + marital communication
privilege analysis: steps
1) protected rship
2) communication
3) confidentiality
4) holder
5) waiver
6) exceptions
atty-C priv: rule
C may refuse to disclose
confidential communications
made for the purpose of seeking professional legal advice
atty C: “confidential coms” def
oral + written sts, plus conduct intended to be confidential
atty C: “confidential coms” exceptions
NOT privileged:
observations
pre-existing documents
atty C: work product: def
privileged material, prepared in anticipation of litigation, by atty
atty C: work product: EXCEPTION
admissible if:
substantial hardship +
no other way of obtaining the evidence
atty C: effect of presence of 3rd parties
- -ok essential 3rd parties (one furthering some purpose of the rship–broad)
- -unknown eavesdroppers do not destroy priv
- -known or anticipated eavesdropper DOES destroy priv
atty C: if atty sends to dr
likely no dr-pt privilege bc sts not made for purpose of med tx
but, may be A-C priv
atty C: “client: def
any person (can be corporation or assn) seeking professional legal services or consulting w possibility of obtaining legal services
atty C “lawyer” def
any person authorized or reasonably believed to be authorized to practice law
ok: disbarred, looks the part, etc.
atty C: holder of priv
C, or
L, on C’s behalf
atty C: scope of time
starts at initial contact
continues even after C’s death (may be asserted by A or by executor)
atty C priv: waiver 502
- -failure to assert privilege timely: usu waiver
- -usu partial when waived (only waived to extent nec to permit reasonable scrutiny by OP)
atty C priv: waiver 502: when total waiver
1) waiver intentional, and
2) both disclosed + undisclosed info concerns the same subject matter
atty C priv: waiver: 502: inadvertent
court will find NOT a waiver if:
1) C did not intend to waive priv
2) C took reasonable steps to protect the info
3) C took timely steps to reemedy disclosure
atty C priv: exceptions
NO PRIV WHEN:
1) future crime or fraud
2) suits btwn A+C
3) joint client exception
4) client ID
5) fee arrangements
atty C priv: exceptions : joint client
2 clients hire same atty, then are involved in litigation w each other.
Result: earlier coms are not privileged, absent agreement otherwise
waiver by one joint holder dn affect right of another joint holder to claim priv
atty C priv: exceptions : client ID
1) client ID usu not privileged (unless disclosure of ID will disclose additional matters)
atty C priv: exceptions : fee arrangments
2) fee arrangements (inc who is paying, billing records)
psychotherapist-pt priv: def
1) LICENSED: sw/psych/mh specialist/marriage counselor (but NOT: edu / vocational counselor)
2) confidential communication w
3) pt who is seeking dx or tx for mental or emo med condition
psychotherapist-pt priv: exceptions
1) sts made re commitment proceedings
2) sts dealing w court-ordered exams
3) when med condition is part of the claim (personal injury, malpractice v dr.0)
4) future crime or fraud
marital privilege: kinds
1) marital communications priv
2) spousal immunity
marital com priv: holder
either spouse
marital com priv: kin of case
crim + civil
marital com priv: rule
protects communications intended by the parties to be confidential (so not in presence of older kids or others) ONLY during the marriage
maj: observations not protected
marital com priv: effect of divorce
none – coms still protected (even after death of spouse)
marital com priv: exceptions
1) crimes or intentional torts committed by one spouse vs the other or a child
2) divorce proceedings or any adverse civil proceeding btwn spouses
3) joint participation in a crime
spousal immunity: rule
protects ALL communications (even if not intended confidential)
both during AND before marriage
includes observations + impressions
spouse can’t be compelled to testify re any of this
spousal immunity: holder
CL: party spouse
FRE: witness spouse (so can testify if wants, tho can’t be compelled to)
spousal immunity: marriage req
must be valid marriage (not sham, incest, bigamy)
spousal immunity: kind of cases
crim only
spousal immunity: effect of divorce
entire privilege lost
spousal immunity: exceptions
1) suits btwn spouses
2) suits involving child of either spouse
religious privilege: Def
protects confidential communications made from penitent to clergyman in their professional capacity as spiritual advisor
–must be made under conditions of confid
religious privilege: holder
either clergyman or penitent
religious privilege: exceptions
none generally recognized
pol vote: “priv”
everyone has privilege to refuse to disclose vote
unless compellted by state election laws
trade secrets “priv”
priv to refuse to disclose any trade secret he owns, or prevent others from disclosing
exception: if concealment will create fraud or injustice
state secrets/official info: “priv”
intergvt opinions, policy decisions, investigatory files, other gvt materials –> gvt secrets re ntl security/intl relations
identity of informer “priv”
holder: gvt only
priv to refuse to disclose ID of a person funneling info vital + relevant to law enforcement
identify of informer: news
no 1A right to refuse to disclose ID of sources
but states can provide shield laws
exec privilege
court-created, for president, courts decide if applies
exception: president has absolute privilege to refsue to disclose matters of ntl security
5A priv against self-incrim: applies only to
testimonial evidence – on the stand (not demonstrative evidence, blood, handwrting, etc etc)
5A PASI: prosecutions comments
P may not comment on D’s refusal to take the stand
5A PASI: effect of tmony at prelim hg
- -dn waive priv to not take stand at trial
- -but yes ok use at impeachment
5A PASI: waiver
does not apply if wit waives
but, cross-exam limited to subject matter about which priv was waived
immunity: kinds
1) transactional
2) use immunity
immunity: vs perjury
can still prosecute for perjury
transactional immunity: def
with can’t be prosecuted for the underlying offense
use immunity: def
these sts by wit can’t be used against them, but can be prosecuted upon independent, untainted evidence
waiver of privilege
1) express: whenever holder ovluntarily discloses the info
2) can be implied by failure to timely object
commenting on the priv: crim
comment not allowed by P (no adverse inferences)
commenting on the priv: civil
OK opposing party comment on it, create neg inference
