Evidence - Privilege

Question 1

Approach:

Answer 1

Identify privilege, its scope, and its holder. look for xceptions, waivers, or limitations

Question 2

Which privilege applies, fed or state?

Answer 2

Look for the 6 fed privileges. If not one of those, does state law apply with respect to privileges (i.e., is it a diversity case)?

Question 3

Testimonial privileges

Answer 3

permit a person to refuse to disclose, and prohibit others from disclosing, certain confidential information in judicial proceedings.

Question 4

How to determine whether federal or state privilege law should be applied in a particular case in federal court:

Answer 4

• In a federal question case, privileges are governed by federal common law.
• In a federal case based on diversity jurisdiction, the privilege law of the state applies.

Question 5

When should STATE LAW control?

Answer 5

Federal Rule 501 provides that federal courts shall apply rules of privilege developed at common law except in diversity cases, wherein state law controls, but this is not a diversity case.

Question 6

Comment on Privilege Forbidden

Answer 6

Neither counsel for the parties nor the judge may comment on someone’s claim of privilege.

Question 7

Waiver

Answer 7

Any privilege is waived by: (1) failure to claim the privilege; (2) voluntary disclosure of the privileged matter by the privilege holder; or (3) a contractual provision waiving in advance the right to claim a privi- lege.

Question 8

Eavesdroppers

Answer 8

A privilege based on confidential communications is not destroyed because it was overheard by someone whose presence is unknown to the parties. Under the modern view, in the absence of negligence by the person claiming privilege, even the eavesdropper would be prohibited from testifying.

Question 9

Federal Common Law Privileges: Privileges recgonzied by fed courts (6)

Answer 9

1) Attorney-client privilege
2) Spousal immunity
3) Marital communications privilege
4) Psychotherapist/social worker-client privilege
5) Clergy-penitent privilege
6) Governmental privileges

Question 10

Attorney-client privilege

Answer 10

a. Client must be seeking attorney’s services at the time of the communications
b. Communication must be confidential (not intended to be disclosed to third parties)

Question 11

AC privilege elements

Answer 11

Communications between an attorney and client, made during professional consultation, are privileged from disclosure.
The privilege applies to:
• Confidential communications,
• Between attorney and client (or representatives of either),
• Made during professional legal consultation,
• Unless the privilege is waived or an exception is applicable

Question 12

Attorney-client privilege TERMINATION and WAIVER

Answer 12

Termination of attorney-client relationship does not terminate privilege; it even survives death. The client holds the privilege, and only they can waive it. The client’s estate representative has the power to waive the privi- lege after the client’s death.

Question 13

Attorney-client privilege : Corporate Clients Special rules for corporate clients

Answer 13

Corporate Clients: Corporations are “clients” within the meaning of the privilege, and statements made by corporate officials or employees to an attorney are protected if the employees were authorized or directed by the corporation to make such statements.

Question 14

AC privilege: Confidential Communication

Answer 14

privilege applies to communications only; the privilege does not apply to underlying information, pre-existing documents, or physical evidence. To be protected, the communication must be confidential (meaning, not intended to be disclosed to third parties); communica- tions made in the known presence and hearing of a stranger are not privileged. However, representatives of the attorney or client may be present without destroying the privilege.

Question 15

AC privilege: Communications Through Agents

Answer 15

Communications made to third persons (such as administrative assistants, messengers, or accountants) are confidential and covered by the privilege if necessary to transmit information between the attorney and client.

Question 16

communications between a client and a doctor during an examination made at the attorney’s request (this is usually done to help the attor-
ney evaluate the extent of the client’s injuries). Privileged?

Answer 16

physician-patient privilege (infra) does not apply because no treat-ment is contemplated. However, the attorney-client privilege will apply to these communications between the client and a consulting doctor, as long as the doctor is not called as a testifying expert.

Question 17

AC privilege: Joint Client Rule

Answer 17

—No Privilege Where Attorney Acts for Both Parties: If 2 or more clients with a common interest consult the same attorney, their communications with the attorney concerning the common interest are privileged as to third parties. But if the joint clients later have a dispute with each other concerning the common interest and one client sues the other, the privilege does not apply as between them.

Question 18

AC privilege: Professional Legal Consultation

Answer 18

The primary purpose of the communication must be to obtain or render legal services, not to give business advice or social advice.

Question 19

Attorney-client privilege: When does it NOT APPLY?

Answer 19

Nonapplicability
1) Where client seeks legal advice in aid of crime or fraud
2) Parties claiming through the same deceased client
3) Dispute between attorney and client (e.g., malpractice)
4) Client puts legal services at issue

Question 20

Attorney-client privilege: Crime-fraud exception

Answer 20

no privilege: If the attorney’s services were sought to aid in the planning or commission of something the client should have known was a crime or fraud

Question 21

Attorney-client privilege: Dispute btwn L and C

Answer 21

no privilege: For a communication relevant to an issue of breach of duty in a
dispute between the attorney and client

Question 22

Attorney-client privilege: Attorney’s Work Product

Answer 22

Although documents prepared by an attorney for their own use in a case are not protected by the privilege, they are not subject to discovery except in cases of necessity.

Question 23

a voluntary disclosure of privileged material

Answer 23

operates as a waiver of the attorney-client privilege or work product protection only with respect to the disclosed material.

Question 24

Undisclosed privileged material is subject to the waiver only if

Answer 24

(1) the waiver was intentional, (2) the disclosed and undisclosed material concern the same subject matter, and (3) the material should be considered together to avoid unfairness. There is no waiver if the disclosure was inadvertent and the holder took reasonable steps to prevent disclosure and rectify the error.

Question 25

Physician-patient privilege

Answer 25

No federal privilege, but recognized in many states. Information must be acquired while professional relationship exists, while attending patient, and information must be necessary for treatment.

Question 26

Confidential information acquired by a physician is privileged if:

Answer 26

• There was a professional relationship between the physician and patient for the purposes of medical treatment; • The information was acquired for the purpose of diagnosis or treatment; and • The information was necessary for diagnosis or treatment (non- medical information—for example, details of who was at fault in an accident—is not privileged)

Question 27

Physician-patient privilege does NOT APPLY when:

Answer 27

1) Dispute between physician and patient (e.g., malpractice) 2) Patient puts physical condition at issue (e.g., personal injury lawsuit)

Question 28

Physician-patient privilege EXCEPTIONS

Answer 28

The physician-patient privilege does not apply (or is impliedly waived) if: • The patient puts their physical condition in issue (for example, in a personal injury lawsuit); • The physician’s assistance was sought to aid wrongdoing (for example, to help the patient commit a crime or tort); • The communication is relevant to an issue of breach of duty in a dispute between the physician and patient (such as a medical malpractice case); • The patient agreed by contract (in an insurance policy, for exam- ple) to waive the privilege; or • It is a federal case applying the federal law of privilege (because, again, federal courts do not recognize a general physician-patient privilege)

Question 29

Physician-patient privilege WAIVER

Answer 29

The privilege belongs to the patient, and the patient may decide to claim or waive it. If the patient is unavailable at the time of trial, the physician may claim the privilege on their behalf

Question 30

Psychotherapist/social worker-client privilege

Answer 30

a. Similar in operation to the attorney-client privilege: the patient/client must have intended their communication to be confidential, and the purpose of the commu- nication must have been to facilitate professional services.

Question 31

Psychotherapist/social worker-client privilege Does NOT APPLY WHEN:

Answer 31

no privilege where the patient puts their mental condition at issue in the case (for example, by filing a claim for emotional injuries or asserting an insanity defense).

Question 32

Privileges related to marriage

Answer 32

a. Spousal immunity (privilege not to testify in a criminal case). b. Confidential marital communications privilege (protects communications only; not observations, etc.)

Question 33

Spousal immunity (privilege not to testify in a criminal case)

Answer 33

1) Applies in criminal cases only 2) Privilege belongs to witness-spouse under Federal Rules 3) Can only be asserted during marriage (married at time of trial), although the matters at issue may have occurred prior to the marriage. Prevents D's spouse from being compelled to testify against D in criminal case.

Question 34

privilege of spousal immunity only applies to

Answer 34

Criminal cases.

Question 35

When the privilege of spousal immunity is invoked....

Answer 35

When the privilege of spousal immunity is invoked, a married person whose spouse is a defendant in a criminal case may not be called as a witness by the prosecution. Moreover, a married person may not be compelled to testify against the legal interests of their spouse in any criminal proceeding, regardless of whether the spouse is the defendant.

Question 36

For the Spousal immunity privilege to apply...

Answer 36

There must be a valid marriage for the privilege to apply

Question 37

the Spousal immunity privilege applies WHEN?

Answer 37

Privilege lasts Only during the marriage. (even if the events at issue took place before the marriage). AKA what matters is whether the spouses are married at the time of trial.

Question 38

Spousal immunity privilege TERMINATES WHEN?

Answer 38

P lasts only during marriage and terminates upon divorce or annulment.

Question 39

Does Spousal immunity privilege apply to events at issue that took place before the marriage?

Answer 39

YES. If marriage exists, P can be asserted even to matters before marriage.

Question 40

Who hold the spousal immunity privilege

Answer 40

Witness-Spouse Holds Privilege: In federal court, the privilege belongs to the witness-spouse. This means that the witness-spouse cannot be compelled to testify, but may choose to do so.

Question 41

When may the spousal immunity doctrine be invoked?

Answer 41

In criminal cases only, for matters that took place before or during the marriage

Question 42

Confidential marital communications privilege (protects communications only; not observations, etc.)

Answer 42

Either spouse (whether or not a party) has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication made between the spouses while they were married. 1) Applies in both civil and criminal cases 2) Privilege belongs to both spouses 3) Communication must have been made during a valid marriage, but divorce will not terminate the privilege retroactively. Spouses musta been married at time of comm'n.

Question 43

Confidential marital communications privilege Applies to:

Answer 43

Criminal AND Civil.

Question 44

Confidential marital communications privilege: ___ spouse (whether a party or not) can prevent ___ from disclosing the confidential communication (or can refuse to disclose the communication) made ___ a valid marriage.

Answer 44

EITHER spouse (whether a party or not) can prevent ANYONE from disclosing the confidential communication (or can refuse to disclose the communication) made DURING a valid marriage.

Question 45

Who HOLDS the Confidential marital communications privilege?

Answer 45

Both. Either spouse can refuse to disclose the communication or prevent any other person from doing so.

Question 46

Confidential marital communications privilege: When does it apply?

Answer 46

For this privilege to apply, the marital relationship must exist when the communication is made. Divorce will not terminate the privilege, but communications after divorce are not privileged

Question 47

Confidential marital communications privilege: TERMINATION

Answer 47

Divorce will not terminate the privilege, but communications after divorce are not privileged

Question 48

Confidential marital communications privilege: CONFIDENTIALITY

Answer 48

Private communications between spouses are generally presumed to be confidential, but this is not always the case. The communication must be made in reliance upon the intimacy of the marital relation- ship. Threats or abusive language are not privileged. Furthermore, communications made in the known presence of a third party are not privileged (though statements may still be confidential and privileged if made in the presence of young children living in the home).

Question 49

Exceptions to marital privileges—neither privilege applies in:

Answer 49

1) Legal actions between the spouses 2) Cases involving crimes against the testifying spouse or either spouse’s children 3) (Communications or acts) In furtherance of joint crime or fraud

Question 50

Eavesdroppers ?

Answer 50

If the communication is made in the known presence of a stranger, it is not privileged. However, if the statement was not made within the known hearing of a third party and it is overheard, absent a showing of negligence on the part of the speaker, it remains privileged.

Question 51

Other Privileges

Answer 51

a. Clergy-penitent b. Accountant-client c. Professional journalist d. Governmental privileges

Question 52

Clergy-penitent

Answer 52

Protects statements by penitent to clergy member in clergy member's capacity as spiritual adviser. Confidential, made for spiritual purposes. the privilege will apply only if the penitent made the communication to the clergy member in the clergy member’s capacity as a spiritual adviser. FEDERAL and many states.

Question 53

Accountant-client

Answer 53

Accountant-Client Privilege (STATE ONLY): Many states recognize a privilege for statements made to an accoun- tant, and the elements of this privilege are very similar to the attor- ney-client privilege. However, there is no federal accountant-client privilege.

Question 54

Professional journalist

Answer 54

Professional Journalist Privilege (STATE ONLY): There is no constitutional right for a professional journalist to protect their source of information; only certain states recognize such a privi- lege.

Question 55

Governmental privileges

Answer 55

Official information not otherwise open to the public may be privileged. The government also holds a privilege that protects the identity of an informer (someone who has provided the government with details of a potential crime). The privilege is waived if the inform- er’s identity is voluntarily disclosed by a privilege holder (an appro- priate government representative).

Question 56

5th amendment privilege

Answer 56

W cannot be compelled to testify against himself. Any witness compelled to appear in a civil or criminal proceeding may refuse to give an answer that ties the witness to the commission of a crime.