Privilege & Competency

Question 1

FRE 501 Privilege Generally

Answer 1

The common law governs a claim of privilege unless the constitution, federal stature or rule by SCOTUS

Question 2

Does Attorney/Client Privilege Survive Death?

Answer 2

YES (Swidler)

Question 3

Factors to Apply Attorney/Client Privilege

Answer 3

(a) a communication,

(b) in confidence,

(c) between a lawyer and client,

(d) in the course of provision of professional legal services.

Question 4

Is openly, observable behavior privileged?

Answer 4

NO, just because your friend is a lawyer does not mean all communication is privileged

Question 5

Third Party Presence & Attorney/Client Privilege

Answer 5

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.

Question 6

Lawless: A/C & Third Party Delivery

Answer 6

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)

Question 7

Does privilege cover non-lawyer?

Answer 7

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

Question 8

Who Holds the A/C Privilege?

Answer 8

The Client!!!

Question 9

Waiver of A/C Privilege

Answer 9

IF YOU TELL PEOPLE WHAT WAS SAID IN THE PRIVILEGED CONVERSATION THEN YOU WAIVE THE PRIVILEGE

Question 10

Crime-Fraud Exception

Answer 10

you may hire an attorney for past wrong doing or avoid future wrongdoing, but not to help you commit future wrongdoing

Question 11

Types of Marital Privilege

Answer 11

a. Marital communications privilege

b. Adverse spousal testimony’

Question 12

Marital communications privilege

Answer 12

i. Held by both spouses

ii. Cover communications, not observations

iii. Confidentiality

iv. Continues (communications during marriage) after divorce

Question 13

Adverse spousal testimony’

Answer 13

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)

Question 14

Patient/psychotherapy privilege

Answer 14

We’re generally not losing much because people just wouldn’t divulge this information period

Question 15

118. Rosen v. US

Answer 15

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

Question 16

US v. Lightly

Answer 16

We presume you are competent to stand trial

Question 17

Minimum Standards of Competency

Answer 17

i. Personal knowledge

ii. Can take oath

iii. Can communicate

iv. Can appreciate what “telling the truth is”

Question 18

FRE 603 Oath Requirement

Answer 18

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

Question 19

Rock v. Arkansas

Answer 19

Hypnotically refreshed testimony, can’t have a per se rule to categorically exclude

Question 20

FRE 605 Judicial Testimony

Answer 20

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

Question 21

FRE 606 Juror Testimony

Answer 21

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

Question 22

Juror Competency to Impeach a Verdict

Answer 22

JURY MEMBERS ARE INCOMPETENT TO TESTIFY TO IMPEACH A VERDICT

Question 23

Juror as Fact Witness

Answer 23

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)

Question 24

Lawyer Incompetency

Answer 24

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)