Privilages & Judicial Notice

Question 1

Privileges.

The FRE give the courts power to establish privileges.

The federal courts recognize:

Answer 1

1. attorney-client,
2. spousal,
3. psychotherapist-patient,
4. clergy-penitent and
5. social worker-client privileges.

Question 2

Do State Privilages Apply?

Answer 2

In civil actions under diversity jurisdiction, state privileges apply in federal court.

Question 3

Attorney-Client Privilege.

Answer 3

A communication between attorney and client or their
representatives intended by client to be confidential and made to facilitate legal services is privileged in all civil and criminal proceedings unless waived by the client.

Question 4

When is a communication from a corporation employee to the corporation’s attorney privileged?

Answer 4

The privilege applies to communications from employees/agents if the corporation authorized the employee/agent to communicate to the lawyer on behalf of the corporation.

Question 5

To be confidential, Communication must be….

Answer 5

intended by client to be confidential. Objective standard of intent.

Question 6

Purpose behind Attorney-Client communcation:

Answer 6

Purpose of communication must be professional legal services.

Question 7

Exceptions. AC Privilege does not apply where

Answer 7

1. professional services sought to further what client knew or should have known to be a crime or fraud, or
2. communication relates to alleged breach of duty between lawyer and client, or
3. two or more parties consult an attorney on a matter of common interest and the communication is offered by one of these parties against another.

Question 8

Psychotherapist-Patient & Social Worker-Client Privileges

Answer 8

A communication between psychotherapist and patient, or licensed social worker and client, intended by patient/client to be confidential and made to facilitate rendition of professional psychological services is privileged in all civil and criminal proceedings unless waived by the patient/client. Same basic rules as for Attorney-Client privilege, i.e., patient/client must have intended that communication be confidential and purpose of communication must have been to facilitate professional services.

Question 9

Application of Doctor-patient privilege.

Answer 9

There is no doctor-patient privilege under the FRE but most states, including California, have adopted the privilege.

Remember that, in a federal court action arising under diversity jurisdiction, you will apply state privilege law on the MBE.

Also, sometimes an MBE question will simply assume the existence of the doctorpatient
privilege.

Question 10

Where the Doctor-Patient privilege applies, here is the law:

Answer 10

A patient has a privilege to prevent disclosure of information confidentially conveyed to a physician where the patient conveyed the information for the purpose of obtaining diagnosis or treatment and the information was pertinent to diagnosis or treatment.

1. Information must be intended by patient to be confidential.
2. Information conveyed to doctor must be pertinent to diagnosis or treatment.

Question 11

Exceptions to Doctor-PAtient Privilage

Answer 11

Privilege does not apply:

1. where the patient puts his physical condition in issue, as in a personal injury suit,
2. where physician’s services sought to aid in crime or fraud or to escape capture after a crime or tort,
3. in case alleging breach of duty arising out of physician-patient relationship, as in a malpractice action.
4. Some states (including California) do not recognize the privilege in criminal cases.

Question 12

Spousal Privileges

Answer 12

1. Spousal testimonial privilege permits witness to refuse to testify against his/her spouse as to anything. Applies only in criminal cases.
2. Spousal confidential communication privilege protects confidential spousal communications during marriage.

Applies in both criminal and civil cases.

For both privileges, there must be a legally valid marriage.

Neither privilege applies in civil action between spouses or in criminal prosecution where one spouse is charged with a crime against the other spouse or one of their kids.

Question 13

3 additional rules for Spousal Privileges

Answer 13

1. Testimonial privilege can apply to matters occurring before or during marriage.
2. Witness owns the privilege
3. Communication privilege applies if communication made during marriage. Both spouses own the privilege.

Question 14

Judicial Notice.

Answer 14

Process of establishing facts without presenting evidence.

Question 15

Two Issues for Judicial Notice

Answer 15

1. Facts appropriate for Judicial Notice,
2. Procedure for taking Judicial Notice.

Question 16

Facts appropriate for Judicial Notice:

Answer 16

Courts can take judicial notice of facts not subject to reasonable dispute because they are either:

1. generally known within the jurisdiction, or
2. capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

Question 17

Procedure for taking Judicial Notice.

Answer 17

Party must request judicial notice to compel judicial notice and, if not requested, court has discretion to take judicial notice.

• In civil case, court instructs jury it must accept noticed fact as conclusive.
• In criminal case, court instructs jury it may, but is not required to accept judicially noticed fact. Judicial notice may occur at any time, even on appeal.