Privilege Flashcards
Is there a federal privilege?
The Federal Rules of Evidence (FRE) have no specific privilege provisions. Under FRE 501, the privilege of a witness or person shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in light of reason and experience. Federal courts currently recognize the attorney-client privilege.
What is spousal privilege?
The privilege against adverse spousal testimony is held by the wife, as the witness, not by the defendant. Spousal immunity falls under Federal Rule of Evidence (FRE) 501 and states that the prosecution cannot compel the defendant’s spouse to testify against him in a criminal case. This privilege only applies if the defendant and the spouse-witness are currently married at the time of the prosecution. Additionally, this privilege may be waived by the witness-spouse if he/she chooses to testify.
The spousal immunity privilege only applies in criminal cases, and because the title of “spouse” ends at divorce, this privilege only applies throughout the time that a valid marriage exists. If a valid marriage exists, however, the witness-spouse can claim the privilege for communications that took place prior to entering into the marriage.
The elements of the spousal testimonial privilege are as follows: (i) an existing marriage; (ii) a criminal case against spouse; and (iii) a spouse is called to testify.
In sum, spousal immunity refers to the right of a spouse not to testify against the other spouse and belongs to the spouse called upon to testify. Spousal immunity protects the witness-spouse from having to testify against the party spouse, and only the witness-spouse holds the privilege, but the witness-spouse can waive the privilege.
In certain actions such as domestic abuse or child abuse, the court will not permit one spouse to use either privilege against another spouse.
Does the attorney client privilege protect communication of joint defendants?
Yes. If both are clients.
When may a person use privilege against self incrimination?
In a civil or criminal trial except to avoid civil liability.
What is marital privilege?
The marital communications privilege, by contrast, was adopted to preserve marital harmony. The confidential communications between married couples are privileged, and either spouse may prevent the other from disclosing the communications. A “communication” is typically spoken or written and is intended to convey a message to the spouse. Parties must be married at the time of the communication and it only applies to confidential communications. So, the privilege is likely revoked if communications are made in the presence of, or likely to be overheard by, a third party. The marital communications privilege does not, however, include acts observed during the course of the marriage that were not intended to communicate a message to the spouse, for instance, observing a spouse committing a crime is not a “confidential communication.” Only confidential communications made during the marriage (not before) are protected, but these communications are protected even after divorce and death. Because the privilege belongs to both spouses, either spouse can prevent the other from testifying. It is applicable in both civil and criminal cases.
The confidential communications privilege will not terminate upon divorce (communications after the marriage will not be privileged), but even if there has been a divorce, either former-spouse can claim this privilege for communications made prior to the divorce. Finally, for the marital communications privilege to apply, the communications must have been made in reliance on the intimacy of the marriage
What is attorney client privilege?
The Federal Rules of Evidence (FRE) have no specific privilege provisions. Under FRE 501, the privilege of a witness or person shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in light of reason and experience. Federal courts currently recognize the attorney-client privilege.
The attorney-client privilege is a common-law privilege, although in some jurisdictions it has been codified by statute. Essentially, communications between an attorney and client, made during professional consultation, are privileged from disclosure. A client has a privilege to refuse to disclose and to prevent others from disclosing, confidential communications between herself (or her representative) and her attorney (or her attorney’s representative). There is no privilege if the services of the attorney were sought or obtained as an aid in the planning or actual commission of something that the client knew, or should have known, was a crime or fraud.
The attorney-client privilege covers confidential communications made during a legal consultation between an attorney and client. However, if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud, the privilege does not apply. There is no requirement that the attorney must be aware of the illegal purposes. Because the defendant sought the lawyer’s advice to aid in the plan to commit the crime of obstructing justice, there is no valid assertion of the attorney-client privilege.
The location of the illegal conduct is irrelevant for the determination of whether the attorney-client privilege applies. The fact that the defendant was seeking to transfer records to a safe-deposit box that was located in Mexico has no effect on whether the privilege may be asserted.
It is true that an attorney is required to keep the confidences of his clients. However, the attorney-client privilege does not apply when a client is seeking the attorney’s legal services for purposes of illegal activity.
This answer reaches the correct answer with the wrong reasoning. The attorney-client privilege may be inapplicable regardless of whether the attorney was aware of the client’s illegal purpose behind seeking his advice. The attorney’s ignorance of his client’s purpose here is therefore irrelevant.
