5. Testimonial Privileges

Question 1

Privileges are:

Answer 1

1. Attorney-client
2. Doctor-patient
3. Psychotherapist/social-worker patient
4. Spousal
5. Marital communication

These privileges are not FRE rules. So answers that say these privileges are evidentiary rules are wrong!

Question 2

5th Amendment:

Answer 2

5th Amendment (privilege against self-incrimination)

Witness can’t be compelled to testify against herself

Question 3

Attorney-client privilege

Answer 3

To be protected a communication must be:

♣ 1. Intended to be confidential; and
♣ 2. Made to facilitate legal services

Exceptions:

♣ 1. Crime or fraud
♣ 2. Attorney defending malpractice claim

Question 4

Doctor-patient privilege:

Answer 4

To be protects a communication must be:
♣ 1. Intended by the patient to be confidential
♣ 2. Made for the purpose of getting diagnosis or treatment
♣ 3. Pertinent to diagnosis or treatment

Exception:
♣ 1. Patient’s condition is a legal issue (e.g. personal injury case)
♣ 2. Aiding in crime/fraud
♣ 3. Dispute between doctor and patient (malpractice)

Question 5

Psychotherapist/social-worker patient privilege:

Answer 5

To be protects a communication must be:
♣ 1. Intended to be confidential; and
♣ 2. Made to facilitate getting treatment

Question 6

Spousal testimonial privilege (CRIMINAL cases only):

Answer 6

A person whose spouse is the D in criminal case cannot be:
♣ 1. Called as a witness by the prosecution, or
♣ 2. Compelled to testify against his spouse in a criminal proceeding

Only witness spouse can invoke privilege

Only be invoked during marriage

Question 7

Marital Communication privilege (CRIMINAL & CIVIL cases)

Answer 7

o Confidential communications made during marriage are privileged in any later proceeding
o Either spouse can invoke privilege
o Can be invoked even after divorce

EXCEPTIONS:
♣ 1. Suits between spouses
♣ 2. Suits where one spouse is charged with crime or tort against child
♣ 3. Suits where spouses are co-defendants