Privilege & Competency Flashcards
FRE 501 Privilege Generally
The common law governs a claim of privilege unless the constitution, federal stature or rule by SCOTUS
Does Attorney/Client Privilege Survive Death?
YES (Swidler)
Factors to Apply Attorney/Client Privilege
(a) a communication,
(b) in confidence,
(c) between a lawyer and client,
(d) in the course of provision of professional legal services.
Is openly, observable behavior privileged?
NO, just because your friend is a lawyer does not mean all communication is privileged
Third Party Presence & Attorney/Client Privilege
The presence of a third party at an attorney client consultation does not defeat the privilege where the third party was needed to make the conference possible or to assist the attorney in rendering legal services.
Lawless: A/C & Third Party Delivery
When you transmit information with the intention of having the attorney turn it over to a third party, it isn’t confidential
Need to have your lawyer brain activated (More likely to be considered privileged)
Does privilege cover non-lawyer?
Yes if it is essential to the facilitation of the lawyering
Interpreter, accountant, technical information for trademark things
Start with the lawyer and work backwards, if the conversation started with a non-lawyer then you’re going to have a problem
Who Holds the A/C Privilege?
The Client!!!
Waiver of A/C Privilege
IF YOU TELL PEOPLE WHAT WAS SAID IN THE PRIVILEGED CONVERSATION THEN YOU WAIVE THE PRIVILEGE
Crime-Fraud Exception
you may hire an attorney for past wrong doing or avoid future wrongdoing, but not to help you commit future wrongdoing
Types of Marital Privilege
a. Marital communications privilege
b. Adverse spousal testimony’
Marital communications privilege
i. Held by both spouses
ii. Cover communications, not observations
iii. Confidentiality
iv. Continues (communications during marriage) after divorce
Adverse spousal testimony’
i. Held by testifying spouse
ii. Covers everything
iii. No confidentiality
iv. Starts at marriage
v. Ends at divorce
1. Court says she can testify to things she observed and conversations in the presence of a third party but cannot testify about private marriage communication; Third parties: children, neighbors (Trammel)
Patient/psychotherapy privilege
We’re generally not losing much because people just wouldn’t divulge this information period
- Rosen v. US
a. Original rule: criminal convictions bar you from testifying
b. We think as a society that people convicted of a felony is less likely to tell the truth
US v. Lightly
We presume you are competent to stand trial
Minimum Standards of Competency
i. Personal knowledge
ii. Can take oath
iii. Can communicate
iv. Can appreciate what “telling the truth is”
FRE 603 Oath Requirement
a. Oath or affirmation to testify truthfully
b. No requirement for tome, particularly construction
c. As long as the oath impresses upon the person the importance of telling the truth
Rock v. Arkansas
Hypnotically refreshed testimony, can’t have a per se rule to categorically exclude
FRE 605 Judicial Testimony
judges can’t testify as a witness during the trial:
i. Specifically the trial they’re presiding over
ii. Can be called for other things
FRE 606 Juror Testimony
A juror can’t testify in front of the other jurors at the trial.
i. Also allows you to object outside of the presence of a jury
ii. Prohibited testimony or other evidence
1. No social media, things happening outside the trial, the news, the newspaper, etc.
2. The jurors can testify to extraneous prejudicial things
iii. Generally prohibited from testifying after the final deliberation of the jury
Juror Competency to Impeach a Verdict
JURY MEMBERS ARE INCOMPETENT TO TESTIFY TO IMPEACH A VERDICT
Juror as Fact Witness
Juror can’t be a fact witness at trial but they can testify outside of hearing of other jurors
i. Racism, sleeping, substance abuse
ii. Incompetent for impeaching jury verdict
1. Post-verdict proceeding
2. UNLESS
a. Outside influence
b. Racism
c. Extraneous improper information (bringing in a newspaper)
Lawyer Incompetency
No evidentiary rule
Ethics prohibit
Lawyers generally incompetent where they act as advocates unless
i. Issues like billing
ii. Issues not in conflict
iii. Extraordinary circumstances/hardship to client (Basically never happens)
