Lecture 5. Article V. Privileges Flashcards
What is the main social policy behind privileges in evidence law?
To protect certain interests or relationships deemed vital to society, even at the expense of suppressing the truth.
What does Rule 501 state about privilege in general?
Claims of privilege are governed by common law as interpreted by U.S. courts, except where the U.S. Constitution, federal statute, or Supreme Court rules provide otherwise. In civil cases, state law governs privilege if state law supplies the rule of decision.
Where do federal courts derive their basic privileges?
From federal common law, not English law.
Why do rules of privilege allow for the exclusion of evidence?
To protect relationships or interests more important to society than the truth, such as justice and confidentiality.
How do privileges differ between civil and criminal cases?
In civil cases, privilege is governed by state law if state law provides the rule of decision; in criminal cases, the same federal judges apply federal law.
What are examples of absolute privileges?
- Lawyer-client privilege
- Spousal confidentiality privilege
- Psychotherapist-patient privilege
- Clergyman-penitent privilege
- Political vote secrecy
What are examples of qualified privileges?
- Trade secrets
- State secrets
- Identity of an informer
- Journalist’s source privilege
Are doctor-patient or accountant privileges recognized in federal court?
No, but some state laws recognize them.
What is the purpose of lawyer-client privilege?
To ensure clients can obtain fully informed legal advice without fear of disclosure (Fisher v. US, 1976).
What types of communication are covered by lawyer-client privilege?
Confidential communications made for the purpose of obtaining legal advice or preparing for trial.
Does lawyer-client privilege extend to third parties?
It extends to lawyer representatives (e.g., secretaries, file clerks, private investigators) but not to unrelated third parties or experts.
Can a document created before a case becomes privileged?
No, the document must be created during the case or in preparation for trial.
What are the two schools of thought for determining who is covered by organizational privilege?
- Control group test: Applies to those who can direct the attorney.
- Subject matter test: Applies to anyone in the organization involved in the lawsuit’s subject matter (Upjohn v. US, 1981).
Who owns lawyer-client privilege in an organization?
The client (organization) owns the privilege, not the lawyer.
What are the two types of spousal privileges?
- Testimonial privilege: A spouse can refuse to testify against the other spouse.
- Confidential communication privilege: Protects private communications during marriage.
