Evidence AMP - Testimonial Privileges Flashcards
Which of the following testimonial privileges is not recognized by federal courts where the state law does not supply the rule of privilege?
A Social worker-client privilege
B Privilege for marital communications
C Physician-patient privilege
D Attorney-client privilege
C
In cases where state law does not supply the rule of privilege (i.e., most federal question cases), the federal courts do not recognize any physician-patient privilege. The federal courts currently recognize the attorney-client privilege, the privilege for confidential marital communications, spousal immunity, the clergy-penitent privilege, and the psychotherapist/social worker-client privilege. Note, however, that in civil actions when state law supplies the rule of decision as to an element of a claim or defense, the state law applies with respect to testimonial privileges as well. Thus, in diversity cases, the state law of privilege applies. QUESTION ID: E0076 Additional Learning
Statements made to an attorney by an employee of a corporation:
A Are privileged, if the corporation authorized the employee to make the statements
B Are privileged, if the statements are about the corporation
C Are never privileged
A
A corporation can be a “client” within the meaning of the attorney-client privilege. The statements of any corporate official or employee made to the attorney are protected if they were authorized or directed by the corporation. QUESTION ID: E0078B Additional Learning
Which of the following statements regarding testimonial privileges is true?
A A privilege based on confidential communications is abrogated if the communication is overheard by someone whose presence is unknown to the parties.
B A waiver of a privilege by one joint holder does not affect the right of another joint holder to claim the privilege.
C Only the judge is permitted to make a comment based on a claim of privilege.
D Failure to object when privileged testimony is offered does not waive the privilege.
B
If one joint holder of a privilege waives the privilege, the other joint holder may still claim it. If a privilege is based on confidential communications, the privilege is not abrogated if someone unknown to the parties overhears their communication. All types of privileges are waived by the following:(i) Failure to claim the privilege by the holder herself or failure to object when privileged testimony is offered;(ii) Voluntary disclosure of the privileged matter by the holder (or someone else with the holder’s consent) unless the disclosure is also privileged; or(iii) A contractual provision waiving in advance the right to claim a privilege.A privilege is not waived where someone wrongfully disclosed information without the holder’s consent. No inference should be drawn from the fact that a witness has claimed a privilege. Thus, neither counsel for the parties nor the judge are permitted to make any comment or argument based on a claim of privilege. QUESTION ID: E0077 Additional Learning
Federal courts currently recognize which of the following privileges?
A Professional journalist
B Physician-patient
C Psychotherapist/social worker-client
D Accountant-client
C
The federal courts currently recognize these privileges: the attorney-client privilege, spousal immunity, the privilege for spousal communications, the clergy-penitent privilege, and the psychotherapist/social worker-client privilege. Note, however, that in civil actions when state law supplies the rule of decision as to an element of a claim or defense, the state law applies with respect to testimonial privileges as well. Thus, in diversity cases, the state law of privilege applies. The federal courts do not currently recognize the physician-patient, professional journalist, or accountant-client privileges. QUESTION ID: E0076C Additional Learning
Which statement regarding the Fifth Amendment’s privilege against self-incrimination is true?
A The privilege can be invoked by corporations or associations.
B A criminal defendant may use the privilege to refuse to take the witness stand at all.
C Only a criminal defendant may refuse to answer a question whose answer might incriminate him.
D A witness may refuse to answer a question to avoid exposure to civil liability.
B
Under the Fifth Amendment of the United States Constitution, a witness cannot be compelled to testify against himself, and a criminal defendant may use the privilege to refuse to take the witness stand at all. Any witness, not only the defendant, may refuse to answer any question whose answer might incriminate him. The privilege belongs to the witness; a party cannot assert it on the witness’s behalf. A witness cannot refuse to answer because of exposure to civil liability; it must be to avoid criminal liability. The privilege cannot be invoked by corporations or associations, but only by natural persons. QUESTION ID: E0084 Additional Learning
In cases where state law does not supply the rule of privilege, federal courts currently do not recognize the __________ privilege.
A Attorney-client
B Psychotherapist/social worker-client
C Physician-patient
D Marital communications
C
In cases where state law does not supply the rule of privilege (i.e., most federal question cases), the federal courts do not recognize any physician-patient privilege. The federal courts currently recognize the attorney-client privilege, the privilege for confidential marital communications, spousal immunity, the clergy-penitent privilege, and the psychotherapist/social worker-client privilege. Note, however, that in civil actions when state law supplies the rule of decision as to an element of a claim or defense, the state law applies with respect to testimonial privileges as well. Thus, in diversity cases, the state law of privilege applies. QUESTION ID: E0076A Additional Learning
Who may invoke the Fifth Amendment privilege against self-incrimination?
A Any witness
B A criminal defendant only
C Any witness except for a criminal defendant
A
Under the Fifth Amendment of the United States Constitution, a witness cannot be compelled to testify against himself. Any witness, not only a criminal defendant, may refuse to answer any question whose answer might incriminate him (and a criminal defendant can refuse to take the witness stand at all). The privilege belongs to the witness; a party cannot assert it on the witness’s behalf. QUESTION ID: E0084B Additional Learning
Which of the following is covered by the attorney-client privilege?
A Communication relevant to an issue between parties, all of whom are claiming through the same deceased client
B Statement made to the attorney by a corporate employee who was authorized by the corporation to make the statement
C Documents prepared by an attorney for his own use in prosecuting his client’s case
B
A corporation can be a “client” within the meaning of the attorney-client privilege. The statements of any corporate official or employee made to the attorney are protected if they were authorized or directed by the corporation. There is no privilege regarding a communication relevant to an issue between parties, all of whom claim through the same deceased client—regardless of whether the claims are by testate or intestate succession or by inter vivos transaction. Documents prepared by an attorney for his own use in prosecuting his client’s case are not protected by the attorney-client privilege. However, they may be protected by the attorney’s “work product” rule. QUESTION ID: E0078A Additional Learning
The Fifth Amendment privilege against self-incrimination allows a __________ to __________.
A Witness; refuse to answer questions that could expose him to civil liability
B Criminal defendant; refuse to take the witness stand at all
C Corporation; refuse to turn over incriminating documents
B
Under the Fifth Amendment of the United States Constitution, a witness cannot be compelled to testify against himself. Thus, a criminal defendant may use the privilege to refuse to take the witness stand at all. Although any witness may invoke this privilege, a witness cannot refuse to answer because of exposure to civil liability; it must be to avoid criminal liability. The privilege cannot be invoked by corporations or associations, but only by natural persons. QUESTION ID: E0084A Additional Learning
Which of the following statements regarding the attorney-client privilege is not true?
A If the client chooses to waive the privilege, her attorney may be compelled to testify.
B There is no attorney-client privilege if the services of the attorney were sought as an aid in the planning of what the client knew to be a crime.
C Termination of the attorney-client relationship terminates the privilege.
D The client must be seeking the professional services of the attorney at the time of the communications for the privilege to attach.
C
The attorney-client privilege applies indefinitely. Termination of the attorney-client relationship does not terminate the privilege. The privilege even continues to apply after the client’s death. The attorney-client privilege requires that the attorney-client relationship exist at the time of the communications. The client, or her representative, must be seeking the professional services of the attorney at the crucial time. But retainer negotiations, involving disclosures made before the attorney has decided to accept or decline the case, are covered if the other requirements of the privilege are present. The privilege belongs solely to the client and she alone can waive it; thus, if the client chooses to waive the privilege, her attorney may be compelled to testify. There is no privilege if the services of the attorney were sought or obtained as an aid in the planning or actual commission of something that the client knew, or should have known, was a crime or a fraud. QUESTION ID: E0079 Additional Learning
The attorney-client privilege does not apply where:
A The services of the attorney were sought as an aid in the planning of what the client knew to be a crime
B The client dies after the communication
C The client had not yet formally retained the attorney at the time of the communication
D The client, after the communication, subsequently fired the attorney
A
There is no privilege if the services of the attorney were sought or obtained as an aid in the planning or actual commission of something that the client knew, or should have known, was a crime or a fraud. The attorney-client privilege encompasses situations where the client, or her representative, is seeking the professional services of the attorney at the crucial time. Retainer negotiations, involving disclosures made before the attorney has decided to accept or decline the case, are covered if the other requirements of the privilege are present. Thus, the attorney need not have been actually retained, as long as the client is seeking to retain her at the time of the communication. The attorney-client privilege applies indefinitely. Termination of the attorney-client relationship (e.g., the client fires the attorney or dies) does not terminate the privilege. The privilege even continues to apply after the client’s death. QUESTION ID: E0079A Additional Learning
In which of the following contexts does the physician-patient privilege apply?
A To information acquired while the physician is attending the patient in the course of treatment
B To communications by a person who has put his physical condition in issue by suing for personal injuries
C In federal court cases where state law does not supply the rule of privilege
D To communications relevant to an issue of breach by the physician of a duty arising out of the physician-patient relationship
A
For the physician-patient privilege to apply, the information must be acquired while the physician is attending the patient in the course of treatment. The privilege does not apply to information obtained by the professional in some other way. In cases where state law does not supply the rule of privilege (i.e., most federal question cases), the federal courts do not recognize any physician-patient privilege. There is no privilege regarding a communication relevant to an issue of breach, by the physician or by the patient, of a duty arising out of the physician-patient relationship (e.g., malpractice, failure to pay one’s bill). The physician-patient privilege is not applicable to communications by a person who has put his physical condition in issue, such as where he is suing for personal injuries. A person cannot invoke the privilege where he himself has put his physical condition in issue. QUESTION ID: E0080A Additional Learning
Which doctrine may protect documents prepared by an attorney for his own use in defending a client’s case?
A Such documents are never protected
B Work-product rule
C Attorney-client privilege
B
Documents prepared by an attorney for his own use in prosecuting his client’s case are not protected by the attorney-client privilege. However, they may be protected by the attorney’s “work product” rule. QUESTION ID: E0078C Additional Learning
The physician-patient privilege applies __________.
A to communications by a person who has put his physical condition in issue by suing for personal injuries
B in cases where state law does not supply the rule of privilege
C to communications relevant to an issue of breach by the physician of a duty arising out of the physician-patient relationship
D to information acquired while the physician is attending the patient in the course of treatment
D
For the physician-patient privilege to apply, the information must be acquired while the physician is attending the patient in the course of treatment. The privilege does not apply to information obtained by the professional in some other way. In cases where state law does not supply the rule of privilege (i.e., most federal question cases), the federal courts do not recognize any physician-patient privilege. There is no privilege regarding a communication relevant to an issue of breach, by the physician or by the patient, of a duty arising out of the physician-patient relationship (e.g., malpractice, failure to pay one’s bill). The physician-patient privilege is not applicable to communications by a person who has put his physical condition in issue, such as where he is suing for personal injuries. A person cannot invoke the privilege where he himself has put his physical condition in issue. QUESTION ID: E0080 Additional Learning
Termination of the attorney-client relationship __________ the attorney-client privilege.
A Sometimes terminates
B Does not terminate
C Terminates
B
The attorney-client privilege applies indefinitely. Termination of the attorney-client relationship does not terminate the privilege. The privilege even continues to apply after the client’s death. QUESTION ID: E0079C Additional Learning
