Pg 52 Flashcards
What is involved in the exception to the psychotherapist privilege for party’s mental/emotional state being at issue?
If you are sued for IIED, the defendant can ask about mental problems you’ve had. If the party’s mental state is relevant, this privilege doesn’t usually apply.
If a witness to a car crash says the defendant ran the red light, does it matter if the witness was seeing a therapist and can you ask the witness about conversations with his therapist or call his therapist as a witness?
No, but the facts themselves are fair game so you can ask about the condition that the witness suffered from
What is involved in the crime/tort exception to the psychotherapist privilege?
If a patient seeks a therapist’s help to commit a crime or tort, that communication is not privileged. If the patient just tells the therapist about a past crime or tort, the privilege still applies
What is involved in the exception to the psychotherapist privilege for a relationship breakdown?
If there’s a malpractice suit or a suit for nonpayment, then the privileged communication that is necessary in order to prove or defend the case can be disclosed
What is involved in the “therapist reasonably believes disclosure is necessary to prevent physical harm” exception to the psychotherapist privilege?
In such a case the professional is obligated to disclose the information
What is involved in the “patient under 16” exception to the psychotherapist privilege?
If the patient is under 16 and the professional reasonably suspects that the patient is a victim of sexual or physical abuse, then the professional is obligated to report it to the authorities
What is involved in the doctor-patient privilege?
This protects communications with doctors for any type of medical issue
What are the elements for doctor-patient privilege to apply?
– Communication between a doctor and patient
– communication made in the course of the doctor patient relationship
– confidentiality
If someone is not actually a doctor, but a patient reasonably believes that the person is, does doctor-patient privilege apply?
Yes
Who is considered to be a patient under the doctor-patient privilege?
Someone seeking medical advice or treatment
If a patient allows a doctor to testify as an expert at trial about what the patient told the doctor, then what has happened?
The patient has consented to that disclosure
Is the identity of a patient privileged under doctor-patient privilege?
It depends on what the malady is. Seeing a podiatrist is not sensitive information, but an STD specialist would be
What are the exceptions to doctor patient privilege?
– Patient’s physical/emotional/mental state is at issue
– criminal cases
– crime-tort exception
– relationship breakdown
– Dr. reasonably believes disclosure is necessary to prevent physical harm
What would be a situation that would be an exception to the doctor-patient privilege if the patient’s physical/emotional/mental state is it issue?
If you are suing for mental anguish, then the opposing party can ask your GP about it
What is involved in the criminal cases exception to doctor patient privilege?
Doctor-patient privilege does not apply to criminal cases. Privilege is automatically lost for criminal cases
What is involved in the crime – tort exception to doctor patient privilege?
If the patient seeks the doctor’s help to commit a crime or tort, that communication is not privileged
What is involved in the relationship breakdown exception to doctor-patient privilege?
If there’s a malpractice suit or a suit for nonpayment, the doctor is permitted to reveal necessary information
What is involved in the doctor reasonably believes disclosure is necessary to prevent physical harm exception to the doctor-patient privilege?
He has a professional obligation to disclose this information
What are the different marital privileges?
– Confidential communications privilege
– spousal privileges
What is the point of the confidential communications privilege?
To ensure that married people can speak openly together
What are the elements that make up the confidential communications privilege?
– Communication is between spouses
– they must be legally married
– confidentiality
***the event must happen during the marriage
Is an uncommunicated writing such as a letter that was written but not sent included as communication between spouses for confidential communications privilege?
No, it must be communicated
Is an act that was only observed, such as seeing a murder weapon in the house but not speaking about it, protected under the communication between spouses element of the confidential communications privilege?
No, this is not protected by the privilege because it was not technically “communicated“
If a husband is prosecuted for domestic violence against his wife, and at trial the prosecution calls the wife to testify that the husband hit her, does the confidential communications privilege apply?
No because no confidential communication is being asked about. The witness is testifying to an act. Additionally the husband is prosecuted for a crime against his spouse, so the spousal exception applies.
If a question on the stand is asking about how much alcohol the girlfriend saw her boyfriend drink, would that be protected by the confidential communications privilege?
No, because the two were not married, and also that was just an observation, not a communication. Additionally, it’s likely that many other people observed the drinking as well so it probably wouldn’t be confidential regardless
Are boyfriends, girlfriends, and fiancés included in the confidential communications privilege?
No, it is only for a couple that is legally married
If your marriage sucks, can that remove you from the confidential communications privilege?
No it doesn’t matter if your marriage sucks, you have to be divorced for it not to count.
When must the communication between a married couple happen in order for the confidential communications privilege to apply?
While the couple was married. They do not still have to be married at the time of testimony, but the communication had to have happened while they were still married
If a communication happened before marriage, does a confidential communications privilege apply?
No
If a couple was married, gets divorced, and then later gets remarried, but the communication happened during the period that they were divorced, does the confidential communications privilege protect it?
No
If communication is happening between a married couple where they reasonably believe no one will overhear, does the confidential communications privilege protect it?
Yes
What is the rule about communicating in front of a third-party for confidential communications privilege?
If a married couple communicates in front of ANY third-party, that destroys the privilege. This includes kids
If a husband is sued by the plaintiff for fraud, and at trial the plaintiff calls the husband’s ex-wife to testify that while they were married and in front of their teenage son, the husband told the ex that he filled phones with sand, would that be permissible under the confidential communications privilege?
That would not be protected by the privilege because the communication happened in front of the son
Who is the holder of the confidential communications privilege?
Both spouses are the holders. So if they divorce and one spouse wants to testify about something that the other one told her, the husband could stop her from doing that
What are the exceptions to the confidential communications privilege?
– crime/fraud exception
– proceeding for the benefit of one spouse or child of the spouse
– litigation between spouses
– proceeding against one spouse for committing a crime against the person/property of the other spouse or their kids
– spouse is a criminal defendant
What is involved in the crime/fraud exception to the confidential communications privilege?
You cannot ask a spouse to help you commit a crime or fraud, but you can ask for help with a tort
If a husband is sued by the plaintiff for fraud, and the P calls the H’s wife to testify that he asked her to help him fill iPhones with sand, but the wife doesn’t want to testify, can the husband preclude this testimony under the confidential communications privilege?
No because the husband asked the wife to help him commit fraud, so the crime/fraud exception would apply
If the defendant is prosecuted for theft and the prosecution called his ex-wife to testify that while they were married defendant told her he stole her necklace and asked her to fence it for him, is the wife permitted to testify that H asked her to fence it for him under the confidential communications privilege?
Yes because he asked her to help him commit a crime/fraud
If there is a commitment proceeding for a spouse, can the other spouse disclose communications with her and not be restricted by the confidential communications privilege if the purpose is to figure out what is best for the one that is disabled?
Yes under the exception of “proceeding for the benefit of one spouse or the child of one spouse“
If a court is deciding whether to remove a child from the house, can the parents refuse to disclose their communications under the confidential communications privilege?
No, because under the exception for “proceeding for the benefit of one spouse or the child of a spouse“ these communications are necessary to be disclosed in the best interest of the child
What is involved in the exception to the confidential communications privilege for “litigation between spouses“?
If there is a divorce proceeding or any other proceeding between the spouses, the one spouse cannot stop the other from testifying
