Privilege

Question 1

Atty/Client Priv. analysis

Answer 1

FRE 502

1) Who’s asserting the priv.?
R: only client can assert
2) Was it confidential (no third parties)
3) Was it a communication (Facts aren’t covered
4) was it to facilitate professional services? (Must be course of representation (Gionnis)

Question 2

Does Priv. survive deat?

Answer 2

YES

Question 3

How can privilege be waived?

Answer 3

disclosure

Question 4

Inadvertent disclosure rule

Answer 4

FRE 502(b)

1) Must be inadvertent
2) must take reasonable steps to prevent disclosure
3) promptly took reasonable steps to rectify error

Question 5

Is client identity privileged?

Answer 5

Generally no. However, it can be if confidential

See Dietz: confidential; Hughes: stolen typewriter not confidential

Question 6

Spousal testimony rule?

Answer 6

Spouse can refuse to testify if:

Criminal case
Currently Married
Asserted by testifying spouse

(Trammel)

Question 7

Marital Communication Privilege?

Answer 7

Intimate, confidential conversation b/w spouses are priv.

BOP on state to show priv. doesn’t apply
Applies Crim/Civ
either spouse can assert
survives divorce.

Question 8

What are the Gordon factor and what are they for

Answer 8

strict balancing test under 609

(a) nature of the crime
(b) time of conviction and W’s subsequent history
(c) similarity between the past crime and the charged crime
(d) importance of defendant’s testimony

o The more D needs to testify, the less likely TC will admit the other crime
(e) the centrality of the credibility issue