Evidence: Privileges

Question 1

Federal procedure issue on multisite: if bar examiners specifically indicate the action is pending in federal court, apply following procedure rules:

Answer 1

(a) in fed-court action ARISING UNDER FED SUBSTANTIVE LAW: “privileges are governed by the principles of the common law as they may be interpreted by the federal courts in the light of reason and experience/”
(b) in Fed court action based on DIVERSITY jurisdiction, where state substantive law applies to parties’ claims and defenses, the federal court must apply PRIVILEGE LAW OF THE STATE whose substantive law is applicable. Note: in diversity actions– courts also apply state law on Competency and state law on burdens of proof and presumptions– aside from that FRE apply in all fed court actions.

Question 2

Attorney Client Privilege

Answer 2

Rationale: to encourage client to speak openly to counsel.
Elements: Privileges applies to confidential cmns between attorney – client or rep made during professional legal consultation unless waiver by client of if exception applies.

Question 3

Waiver to attorney-client privilege

Answer 3

(a) Voluntary waiver:
(b) Subject matter waiver:
(c) Inadvertent waiver:

Question 4

Voluntary Waiver

Answer 4

only client has power to waive the privilege. After client’s death, the privilege continues and only the client’s estate can waive it)

Question 5

Subject Matter Waiver:

Answer 5

A voluntary waiver of the privilege as to some communications will also waive the privileges as to other communications if:

(a) The partial disclosure is intentional
(b) The disclosed and undisclosed communications concern the same subject matter, and
(c) fairness requires that the disclosed and undisclosed communications be considered together

Question 6

Inadvertent Waiver

Answer 6

An inadvertent disclosure of a privileged communication will not waive the privilege so long as the privilege-holder:

(a) took reasonable steps to prevent the disclosure, and
(b) takes reasonable steps to correct the error.

Question 7

Exceptions to attorney client privilege

Answer 7

(1) Future crime of fraud:
(2) Client puts legal advice at issue
(3) Attorney client-dispute

Question 8

Physician- Patient Privilege

Answer 8

1. Usually created by state statute. rationale: to encourage candor by patient and to protect privacy.
2. Elements. Privilege applies to– confidential cmns or information acquired by physician from patient for purpose of diagnosis or treatment of medical condition
   Also applicable to psychotherapists (M.D. or other professional certified to diagnose or treat mental/emotional illness).

Question 9

Physician- Patient Privilege — fed law distinction:

Answer 9

In fed-court actions based solely on federal law, privilege exists only for psychotherapy.

Question 10

Spousal Privileges

Answer 10

1. Spousal Immunity – criminal cases only
2. Confidential communications between spouses
3. Exception

Question 11

Spousal Immunity

Answer 11

A spouse cannot be compelled to testify about anything against the defendant spouse.
Holder of the privilege is the witness spouse

Question 12

Confidential Communications Between Spouses

Answer 12

Any type of case–> spouse is not required and is not allowed in the absence of consent by the other spouse, to disclose a confidential communication made by one to the other during the marriage.
both spouses hold this privilege.

Question 13

Exceptions to Spousal Immunity

Answer 13

Applicable to both privileges.
Communications or acts in furtherance of jointly-perprated future crime or fraud
Communications or acts destructive of family unit in litigation between the spouses themselves.