Additional Privileges Flashcards
1
Q
Types of Spousal Privileges
A
- confidential spousal communications
- adverse spousal testimony
2
Q
Marriage Qualifications for Spousal Privilege to Apply
A
- needs to be a valid legal marriage
- sham marriages carried out for the purpose of avoiding having to produce the info in litigation are NOT protected
3
Q
Confidential Spousal Communications
A
- protects against disclosure of communications between spouses
- applies to communications that occurred during the marriage (need to have been married when the communication occurred)
- the communications must have been confidential when they occurred
4
Q
Confidential Spousal Communications - Who do they belong to?
A
- belong to both spouses
- either has the power to invoke the privilege
- neither spouse acting individually can waive (would need both to waive)
5
Q
Confidential Spousal Communications - Temporal Component
A
- does not operate forwards or backwards - ONLY communications that occurred during the time of the marriage
- communications that did occur during the marriage are covered even if the couple subsequently gets divorced
- communications during divorce proceedings still covered
6
Q
Exceptions to Confidential Spousal Communications
A
- doesn’t apply to lawsuits between spouses, whether presently married or not
- doesn’t apply if litigation in which someone’s trying to use it involves crime by one spouse against the other spouse or crime by one spouse against children of the two spouses
- crime fraud exception - if the two are involved in a crime together, their communications are not privileged
7
Q
Adverse Spousal Testimony Privilege
A
- only applies if spouses married at time of trial (if divorced, gov. can forced ex-spouse to testify against you)
- protects all the things the spouse knows about you, including pre-marriage things
8
Q
Trammel v. US
A
- originally, either spouse could invoke the adverse spousal testimony privilege BUT this case changed that
- SCOTUS decided it is solely the decision of the testifying spouse whether or not to testify (if the spouse wants to testify, they can; if not, spouse cannot be “compelled”)
- “compelled” complicated - gov is allowed to put pressure on the testifying spouse by giving you the choice between witness and co-conspirator - SCOTUS said fine as long as “voluntary” decision by testifying spouse
9
Q
Relationship Between the Spousal Privileges
A
- if one spouse decides to testify against the other, still can’t reveal anything covered by confidential spousal communications (since both would need to waive this)
10
Q
Exceptions for Adverse Spousal Testimony Privilege
A
- ONLY applies in federal criminal cases - DOES NOT apply in civil cases, unless a state law says so for state proceedings
- same exceptions as the other spousal privilege also apply here
11
Q
Spousal Privilege and Attorney Privilege
A
- if your spouse is in the room for a communication with your attorney, you’d lose attorney-client privilege unless you can determine that the spouse’s presence is necessary in some way to assist in the provision of legal advice
- attorney’s presence would destroy the spousal privilege
12
Q
Other Privileges Recognized Under Federal Law
A
- physician-patient
- psychotherapist-patient
- mediation (split though among courts)
13
Q
Physician-Patient Privilege
A
- belongs to patient
- recognized under both federal and state law
14
Q
Psycho-therapist-Patient Privilege
A
- established in Jaffe v. Redmond
- applies in federal and state court
- covers what you say to psychotherapist and what they say back
15
Q
Privileges Not Recognized at Federal Level
A
- priest-penitent privilege
- informers’ privilege (need to disclose if would violate defendant’s right to fair trial)
- reporter’s source
- accountant-client privilege
- parent-child privilege
All the above except the informant are recognized in at least some states though
