Evidence 56-60

Question 1

What is Spousal Immunity?

(FRE vs. CA)

Answer 1

FRE:

A witness-spouse in a valid marriage may refuse to testify against his/her spouse in a criminal case. Spousal Immunity DOES NOT apply in civil cases.

CA:

The spouse holding the privilege may refuse to testify in BOTH criminal and civil cases.

Priority: Medium

Question 2

What is the privilege of Confidential Marital Communications?

Answer 2

Communications between spouses are privileged if:

Made during the course of a valid marriage; AND

Were intended to be confidential.

*Applies in both civil and criminal cases, held by both spouses even after a divorce.

Priority: Medium

Question 3

In what circumstances do the Spousal Privileges (spousal immunity and confidential marital communications) NOT apply?

Answer 3

In cases between the spouses.

When a spouse commits a crime against the other spouse or their children.

Priority: N/A

Question 4

What does the Attorney Work Product Doctrineprotect?

Under what circumstances is it NOT protected?

Answer 4

It protects ALL materials prepared by an attorney or his agents in anticipation of or during litigation. (In CA: Only materials prepared in anticipation of litigation are deemed work product).

They are protected UNLESS a party can show:

A substantial need for the materials exists; AND

A substantial equivalent of the materials cannot be obtained without undue hardship.

Priority: HIGH

Question 5

Attorney Work Product Doctrine (California)

Absolute Privilege

vs.

Qualified Privilege

Answer 5

Absolute: Materials prepared in anticipation of litigation and are comprised of the attorneys’ mental impressions, notes, or opinions. These are absolutely protected and are NOT discoverable.

Qualified: All other materials prepared in anticipation of litigation are deemed as qualified work product. These may be discoverable upon showing of substantial need and inability to obtain elsewhere.

Priority: HIGH