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Evidence > Privilege > Flashcards

Privilege Flashcards

1
Q

General Bar Tips

A
  • In federal court –> apply the FRE
  • In federal diversity cases –> apply the FRE as to procedure but apply state law as to: privileges, BOP and presumptions, and Dead Man’s statutes
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2
Q

Types of Privileges Recognized by Federal Courts

A

Include:

  • Attorney-Client
  • Spousal (including testimony privilege and confidential communication privilege)
  • Clergy-Penitent, and
  • Psychotherapist-Patient

-Notice that federal common law does not recognize a physician-patient privilege (although most states do).

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3
Q

Choice of Law for Privilege in Civil Cases

A

State law governs privilege regarding a claim or defense if state law supplies the rule or decision.

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4
Q

Attorney-Client Privilege

A

A client has a privilege to refuse to disclose and prevent others from disclosing –> confidential communications + made for purpose of facilitating prof. legal services:

  • between client or his rep and his lawyer or lawyer’s rep.
  • between lawyer and lawyer’s rep
  • between client or lawyer and a lawyer representing another party in a pending action and concerning a matter of common interest therein.
  • between reps of client
  • between rep of client and client
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5
Q

Who Is a Client?

A

Any person, public officer, corp., association, or other org. or entity, either public or private, who is provided prof. legal services or consults with lawyer for obtaining such services.

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6
Q

When Is a Communication Confidential?

A
  • A communication is confidential if it is not intended to be disclosed to third persons.
  • Mere showing of communication between lawyer and client is not enough
  • Circumstances must indicate that there was an intention of secrecy (reasonably understood to be confidential).
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7
Q

Who Constitutes a Lawyer?

A

A lawyer is a person authorized or reasonably believed by the client to be authorized to engage in the practice of law in any state or nation.

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8
Q

Attorney-Client Privilege: What is Considered a Communication Between Client and Lawyer?

A

Attorney-client privilege protects oral and written communications and conduct intended to be communicative.

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9
Q

Basic Facts

A

Are not subject to attorney-client privilege (e.g. name, occupation, address of client, or the identity of the lawyer).

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10
Q

Attorney-Client Privilege: Written Documents

A

Written documents are communications protected by the attorney-client privilege if they were prepared specifically from the client to the attorney or vice versa.

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11
Q

Who Holds the Attorney-Client Privilege?

A

The client is the holder of the privilege. Therefore, the power to waive is the client’s alone.

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12
Q

Does Taking the Stand Waive Attorney-Client Privilege?

A

The prevailing view is that the client does not waive the privilege for secrecy of the communications to his lawyer.

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13
Q

Attorney-Client Privilege (Total Waiver)

A

A total/blanket waiver only results if:

  • the waiver was intentional
  • both the disclosed and undisclosed info concerns the same subject matter.
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14
Q

Attorney-Client Privilege (Partial Waiver)

A

In general, a waiver of a privilege generally operates only as a partial waiver (the extent that would permit reasonable scrutiny of the disclosed info)

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15
Q

When Attorney-Client Privilege Does Not Apply?

A

There is no privilege:

  • Legal services were sought to enable or aid the commission or planned commission of what the client knew or reasonably should have known to be crime or fraud.
  • Communication relevant to an issue between parties who claim through the same deceased client
  • Communication relevant to an issue of breach of duty by the lawyer to his client or vice versa
  • As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness
  • Joint-client exception
  • As to a communication between a public officer or agency and its lawyers (under most circumstances)
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16
Q

Communications Between a Public Officer or Agency and Its Lawyers

A

Is not subject to the attorney-client privilege unless:

  • the communication concerns a pending investigation, claim, or action and
  • the court determines that disclosure will seriously impair the ability of the public officer or agency to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest.
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17
Q

Joint Client Exception

A

When two or more clients hire the same attorney for representation in the same matter and are then involved in litigation between each other, their earlier communications are not privileged absent an agreement otherwise.

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18
Q

Physician and Psychotherapist-Patient Privilege

A
  • A patient has a privilege to refuse to disclose, and to prevent another from disclosing confidential communications made for the purpose of diagnosis or treatment of his physical, mental, or emotional condition.
  • This privilege extends to persons participating in treatment under the direction of physician or psychotherapist (including patient’s family).
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19
Q

Who is a Patient?

A

A person who consults, is examined, or is interviewed by a physician or psychotherapist.

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20
Q

Who is a Physician?

A

A person authorized to practice medicine in any state or nation, or reasonably believed by the patient to be so.

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21
Q

Who is a Psychotherapist?

A
  • A person authorized to practice medicine in any state or nation, or reasonably believed by the patient to be so authorized + engaged in diagnosis or treatment of a mental or emotional condition or
  • A person licensed or certified as a psychologist under the laws of any state or nation, while similarly engaged.
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22
Q

What About Social Workers?

A

The psychotherapist-patient privilege also includes licensed social workers.

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23
Q

Physician/Psychotherapist Privilege: What is Considered a Confidential Communication?

A

A communication is confidential if it is not intended to be disclosed to third persons, except:

  • persons present to further interest of the patient in the treatment
  • persons reasonably necessary for transmission of communication
  • persons participating in the diagnosis and treatment under the direction of the physician or psychotherapist, including members of patient’s family
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24
Q

Examinations Made in Preparation for Litigation

A

Do not fall under the physician/psychotherapist privilege

25
Q

Observations and Impressions Made by Doctor/Therapist

A

Are protected by the physician/psychotherapist privilege

26
Q

Physician/Therapist Fees

A

The amount of the fee paid is not privileged.

27
Q

Exceptions to the Physician/Psychotherapist Privilege

A
  • Personal Injury suits brought by the patient

- Malpractice suits brought against the physician

28
Q

When the Physician/Psychotherapist Privilege Does Not Apply

A
  • For communications relevant to an issue in proceedings to hospitalize the patient for mental illness if –> psychotherapist determines that the patient is in need of hospitalization
  • If the court orders an examination of the physical, mental, and/or emotional condition of a patient, whether a party or a W.
  • Any communication relevant to a condition in which the D relies upon as an element of his claim or defense.
29
Q

General Considerations for Physician/Psychotherapist Treatment

A
  • (Primary Purpose)- look to see what was the primary purpose of the patient in seeking the treatment.
  • (Whether D has put the condition at issue)- if the D has put the condition at issue, he may not claim the privilege.
30
Q

Spousal Privileges

A

Include spousal testimony privilege and spousal communication privilege

31
Q

Spousal Testimony Privilege

A

The right of a W-spouse not to be forced to testify against their current spouse in a criminal case (or any criminal proceeding).

32
Q

Spousal Communications Privilege

A

Protects confidential communications made during a legally valid marriage in both criminal and civil cases (generally only communications are protected, not observations).

33
Q

Spousal Testimony Privilege: Who is the Privilege Holder?

A

The W-spouse. Therefore, the W-Spouse can waive this privilege and testify against the D-spouse’s wish.

34
Q

Spousal Testimony Privilege: Duration of the Privilege

A

The privilege lasts only during the marriage and terminates upon divorce or annulment.

35
Q

Spousal Communications Privilege: Who is the Privilege Holder?

A

Both spouses are holders of the privilege. Therefore, one cannot waive the privilege over the objection of the other.

36
Q

Spousal Communications Privilege: Joint Participants Exception

A

Today, most jurisdictions hold that the privilege does not apply to communications made in furtherance of an ongoing crime or tort.

37
Q

Spousal Communication Privilege: Duration

A

As long as the spouses were married when the communication was made + it was confidential. The communication is forever privileged unless it is waived (the privilege survives divorce).

38
Q

Spousal Communication Privilege: What Constitutes Confidential?

A

A statement is confidential if it is made privately from one spouse to another (communications in the presence of older children, friends, and relatives do not invoke the privilege).

39
Q

Exceptions for Both Spousal Privileges

A

The privileges do not apply to communications:

  • In furtherance of a future crime or fraud
  • Destructive of the family unit (e.g. spousal or child abuse)
  • Made in a proceeding brought by or on behalf of either spouse to establish his competence; or
  • In a criminal proceeding where the marital communication was offered in evidence by a D who is one of the spouses between whom the communication was made.
40
Q

Clergy Penitent Privilege

A

A person has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication made by the person to a clergyman in his professional character as a spiritual adviser.

41
Q

Clergy Penitent Privilege: When is a Communication Confidential?

A

If it is made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.

42
Q

Clergy-Penitent Privilege: Who May Claim the Privilege?

A

The privilege may be claimed by the penitent; the penitent’s guardian, conservator, or personal rep if the penitent is deceased.

-The clergyman is presumed to have authority to claim the privilege, but only on behalf of the penitent.

43
Q

Political Vote Privilege

A
  • Every person has a privilege to refuse to disclose the tenor of his vote at a political election conducted by secret ballot unless:
  • court finds that vote was casted illegally or
  • court determines that the disclosure should be compelled pursuant to the election laws of the state.
44
Q

Secrets of State and Other Official Information (Gov. Privilege)

A

A gov. privilege is only recognized as created by the U.S. Constitution or statutes of a state.

45
Q

Informant Identities

A

The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a criminal informant. The privilege may be claimed by an appropriate rep. of the public entity to which the information was furnished.

46
Q

Newsman’s Privilege

A

In regards to news sources, is only offered by some states.

47
Q

Executive Privilege

A

The president has an absolute privilege to refuse disclosure of info as to matters of national security. However, other information is given only qualified protection (that can be overcome by a showing of special need).

48
Q

Informant Identities: When No Privilege Applies

A

There is no privilege when:

  • (Prior Disclosure)- the identity of the informer has been disclosed by the government or by the informer, or if the informer appears as a W for the gov.
  • (Cases Where Public Entity is a Party)- where it appears in the case that an informer may be able to give testimony relevant to any issue in a criminal case, or to a fair determination of a material issue on the merits in a civil case to which a public entity is a party and the informed public entity invokes the privilege.
49
Q

Fifth Amendment: Privilege Against Self-Incrimination

A

The accused in a criminal trial has a Fifth Amendment privilege to refuse to take the stand.

50
Q

Privilege Against Self Incrimination: Cross-Examination

A

The privilege does not prevent cross once voluntary testimony has been given. Refusal to be crossed permits the judge to strike from the record any direct testimony previously given.

51
Q

Privilege Against Self-Incrimination: Witnesses

A

A W also has a Fifth Amendment privilege, but unlike the D cannot refuse to take the stand.

52
Q

When the Privilege Against Self-Incrimination Does Not Apply

A

When transactional or derivative use immunity has been granted. Keep in mind that immunity will not apply to perjury committed on the stand.

53
Q

References to the Invocation of a Privilege

A

Neither the judge nor counsel should comment upon a claim of privilege. It is permissible to draw an adverse inference from an assertion of the 5th Amendment privilege in a civil case where probative evidence has been presented against the witness, although it is not permissible to do so in a criminal case.

54
Q

Privilege Against Self-Incrimination: Shielding the Jury

A

In jury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.

55
Q

Transactional Immunity

A

When a W cannot be prosecuted for the offense to which the statement refers (bars assertion of privilege)

56
Q

Derivative Use Immunity

A

Neither the person’s statements nor any evidence obtained as a result of the statement can be used against the person (bars assertion of the privilege)

57
Q

Use Immunity

A

Statements by the witness may not be used against them, but the prosecution does not agree that it will never P, nor is the prosecution barred from using evidence obtained as a result of the statement.

58
Q

Work Product Doctrine

A

A discovery rule that permits refusal to provide documents made in preparation by the attorney in anticipation of litigation.

59
Q

When Work Product Must be Turned Over

A

When the party seeking the work product shows:

  • substantial hardship
  • no other way of obtaining the evidence

Evidence (12 decks)

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