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Bar Evidence > 3) privileges > Flashcards

3) privileges Flashcards

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1
Q

use of privileges in fed ct: 501

A

–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

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2
Q

privileges at CL: general rule

A

no privilege to:

1) refuse to be a wit
2) refuse to disclose any matter
3) refuse to produce any object/writing

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3
Q

CL privileges recognized in fed ct: list

A

1) atty-C
2) psychotherapist/pt (NOT DR PT)
3) clergyman/penitent
4) spousal immunity + marital communication

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4
Q

privilege analysis: steps

A

1) protected rship
2) communication
3) confidentiality
4) holder
5) waiver
6) exceptions

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5
Q

atty-C priv: rule

A

C may refuse to disclose
confidential communications
made for the purpose of seeking professional legal advice

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6
Q

atty C: “confidential coms” def

A

oral + written sts, plus conduct intended to be confidential

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7
Q

atty C: “confidential coms” exceptions

A

NOT privileged:
observations
pre-existing documents

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8
Q

atty C: work product: def

A

privileged material, prepared in anticipation of litigation, by atty

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9
Q

atty C: work product: EXCEPTION

A

admissible if:
substantial hardship +
no other way of obtaining the evidence

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10
Q

atty C: effect of presence of 3rd parties

A
  • -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
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11
Q

atty C: if atty sends to dr

A

likely no dr-pt privilege bc sts not made for purpose of med tx
but, may be A-C priv

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12
Q

atty C: “client: def

A 
any person (can be corporation or assn)
seeking professional legal services or consulting w possibility of obtaining legal services
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13
Q

atty C “lawyer” def

A

any person authorized or reasonably believed to be authorized to practice law
ok: disbarred, looks the part, etc.

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14
Q

atty C: holder of priv

A

C, or

L, on C’s behalf

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15
Q

atty C: scope of time

A

starts at initial contact

continues even after C’s death (may be asserted by A or by executor)

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16
Q

atty C priv: waiver 502

A
  • -failure to assert privilege timely: usu waiver

- -usu partial when waived (only waived to extent nec to permit reasonable scrutiny by OP)

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17
Q

atty C priv: waiver 502: when total waiver

A

1) waiver intentional, and

2) both disclosed + undisclosed info concerns the same subject matter

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18
Q

atty C priv: waiver: 502: inadvertent

A

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

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19
Q

atty C priv: exceptions

A

NO PRIV WHEN:

1) future crime or fraud
2) suits btwn A+C
3) joint client exception
4) client ID
5) fee arrangements

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20
Q

atty C priv: exceptions : joint client

A

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

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21
Q

atty C priv: exceptions : client ID

A

1) client ID usu not privileged (unless disclosure of ID will disclose additional matters)

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22
Q

atty C priv: exceptions : fee arrangments

A

2) fee arrangements (inc who is paying, billing records)

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23
Q

psychotherapist-pt priv: def

A

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

24
Q

psychotherapist-pt priv: exceptions

A

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

25
Q

marital privilege: kinds

A

1) marital communications priv

2) spousal immunity

26
Q

marital com priv: holder

A

either spouse

27
Q

marital com priv: kin of case

A

crim + civil

28
Q

marital com priv: rule

A

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

29
Q

marital com priv: effect of divorce

A

none – coms still protected (even after death of spouse)

30
Q

marital com priv: exceptions

A

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

31
Q

spousal immunity: rule

A

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

32
Q

spousal immunity: holder

A

CL: party spouse
FRE: witness spouse (so can testify if wants, tho can’t be compelled to)

33
Q

spousal immunity: marriage req

A

must be valid marriage (not sham, incest, bigamy)

34
Q

spousal immunity: kind of cases

A

crim only

35
Q

spousal immunity: effect of divorce

A

entire privilege lost

36
Q

spousal immunity: exceptions

A

1) suits btwn spouses

2) suits involving child of either spouse

37
Q

religious privilege: Def

A

protects confidential communications made from penitent to clergyman in their professional capacity as spiritual advisor
–must be made under conditions of confid

38
Q

religious privilege: holder

A

either clergyman or penitent

39
Q

religious privilege: exceptions

A

none generally recognized

40
Q

pol vote: “priv”

A

everyone has privilege to refuse to disclose vote

unless compellted by state election laws

41
Q

trade secrets “priv”

A

priv to refuse to disclose any trade secret he owns, or prevent others from disclosing

exception: if concealment will create fraud or injustice

42
Q

state secrets/official info: “priv”

A

intergvt opinions, policy decisions, investigatory files, other gvt materials –> gvt secrets re ntl security/intl relations

43
Q

identity of informer “priv”

A

holder: gvt only

priv to refuse to disclose ID of a person funneling info vital + relevant to law enforcement

44
Q

identify of informer: news

A

no 1A right to refuse to disclose ID of sources

but states can provide shield laws

45
Q

exec privilege

A

court-created, for president, courts decide if applies

exception: president has absolute privilege to refsue to disclose matters of ntl security

46
Q

5A priv against self-incrim: applies only to

A

testimonial evidence – on the stand (not demonstrative evidence, blood, handwrting, etc etc)

47
Q

5A PASI: prosecutions comments

A

P may not comment on D’s refusal to take the stand

48
Q

5A PASI: effect of tmony at prelim hg

A
  • -dn waive priv to not take stand at trial

- -but yes ok use at impeachment

49
Q

5A PASI: waiver

A

does not apply if wit waives

but, cross-exam limited to subject matter about which priv was waived

50
Q

immunity: kinds

A

1) transactional

2) use immunity

51
Q

immunity: vs perjury

A

can still prosecute for perjury

52
Q

transactional immunity: def

A

with can’t be prosecuted for the underlying offense

53
Q

use immunity: def

A

these sts by wit can’t be used against them, but can be prosecuted upon independent, untainted evidence

54
Q

waiver of privilege

A

1) express: whenever holder ovluntarily discloses the info

2) can be implied by failure to timely object

55
Q

commenting on the priv: crim

A

comment not allowed by P (no adverse inferences)

56
Q

commenting on the priv: civil

A

OK opposing party comment on it, create neg inference

Bar Evidence (8 decks)

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