Evidence - Privileges Flashcards
What are the three areas of evidence law where state law is applied in federal court in diversity cases?
(1) Privileges
(2) Competency
(3) Burdens of proof and presumptions
What the elements of ACP?
Privilege applies to:
(a) Confidential communications
* Client must intend it to be confidential, does not apply to joint clients’ in disputes between each other
* Communications - Does not apply to client’s knowledge of underlying info, pre-existing documents, or physical evidence.
(b) Between attorney [reasonably believes] and client (or representtive of either)
(c) Made during professional, legal consultation
(d) Unless privilege is waived by the client.
What are the three types of waiver for ACP?
(1) Voluntary waiver [only client holds]
(2) Subject Matter Waiver - A voluntary waiver of privilege as to some communications will also waive the privilege as to other communications if
(i) Partial disclosure is intentional
(ii) Disclosed and undisclosed communications concern the same-subject matter.
(i) Fairness requires that the disclosed and undisclosed communications be considered together.
(3) Inadvertent waiver
When does an inadvertent disclosure not waive ACP?
Does not waive so long as the privilege holder took:
(i) took reasonable steps to prevent the disclosure; and
(ii) took reasonable steps to correct the error.
What are the three exceptions to ACP?
(1) Future crime and fraud
(2) Client puts legal advice at issue
(3) Dispute between attorney and client.
What is the general multistate rule on Physician-Patient privilege and the exception?
Applies to:
Confidential communication or information acquired by physician [or psychotherapists] from patient
for the purpose of DIAGNOSIS OR TREATMENT of a medical condition.
Exception: Privilege is lost if patient expressly or impliedly puts physical or mental condition in issue.
FRE AND MA Distinction on Physician-Patient privilege
FRE and MA do not recognize a privilege for physician-patient communications, but DO for patient-psychotherapist.
What is the scope of spousal immunity and who holds the privilege?
For criminal cases only, a spouse cannot be compelled to testify about anything against the defendant spouse.
The testify spouse [Witness spouse] holds the privilege.
What is the MA distinction on spousal immunity?
Same as FRE except there is no spousal immunity privilege in grand jury proceedings. Doesn’t prevent refusal at actual trial.
What is the scope of the privilege for confidential communications between spouses and who holds it?
Applies in both CIVIL and Criminal cases. 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 marries.
Both spouses hold it.
What is the MA distinction on spousal communication?
In CIVIL and CRIMINAL cases, both spouses are PROHIBITED from testing about any private, oral, conversation between the spouses that occurred during the marriage (No disqualification for written communication).
Except: After the death of a spouse, the surviving spouse may testify about anything said by the other spouse, even if said in private.
What are the three exceptions applicable to both spousal privileges?
(1) Communications or acts in furtherance of jointly perpetuated future crime or fraud.
(2) Communications or acts destructive of family unit. [Spouse of child abuse]
(3) No privilege in civil litigation between the spouses themselves.
What is the Massachusetts prohibition of child’s testimony against parent in certain cases?
IN CRIMINAL CASE ONLY, an unemancipated minor child is prohibited from testifying against a natural or adoptive parent with whom the child resides, except when the victim of the crime also lives in the household and is a member of the parent’s family.
