Privileges

Question 1

Overview

Answer 1

Unless privilege applies, no person has privilege to refuse to be a witness, disclose any matter, produce any object or writing, or prevent another from doing the previous 3 things.
Only common law privileges apply in federal courts
If diversity, look to state law

Question 2

Attorney-Client privilege

Answer 2

Holder: client
Covers confidential communications
• confidential if not intended to be disclosed (Known or anticipated eavesdroppers destroy privilege)
• Not pre-existing documents, fee arrangements, or billing records
Includes anyone who furthers the AC relationship or hired by attorney to assist
Waived unless client asserts it
• Usually a partial waiver
• Blanket waiver if intentional and all information concerns same subject matter
• No waiver if unintentional, reasonable steps to protect, and timely steps to remedy disclosure
No AC if future fraud or crime, suits between attorney and client, and joint representation

Question 3

Psychotherapist-Patient

Answer 3

Extends to all licensed social workers, psychologists, mental health specialists, psychiatrists, or marriage counselors

Confidential communication made to seek diagnosis or treatment for physical, mental, or emotional condition including addiction

Confidential: same as AC except 3Ps are fine if (1) present to further pt’s interest in exam; (2) reasonably necessary for transmission of com; or (3) participating in diagnosis or treatment at direction of therapist

Exceptions: commitment proceedings, court-ordered examination, and medical condition is part of claim

Physician: can be waived by putting medical condition at issue

If attorney ordered: only covered by AC and would be waived if call physicain as expert

Question 4

Marital communication

Answer 4

Both spouses are holder
Only confidential communications during marriage; divorce doesn’t end it
• Not observations
• Not if it front of older children, friends, or relatives
Exceptions: victim spouse or children, suits between spouses, joint participation in crime

Question 5

Spousal Immunity

Answer 5

Only applies in criminal trials
Witness spouse may refuse to testify against current spouse in criminal case about all coms made before or during marriage.
• terminates upon divorce or annulment
Exceptions: crime against other spouse or child of either spouse

Question 6

Religious

Answer 6

Person has privilege to refuse to disclose and prevent another from disclosing any confidential com made to a clergyman

clergyman=minister, priest, rabbi, or similar functionary of religious org

Question 7

Privilege against Self-Incrimination

Answer 7

Accused has right to refuse to take the stand, but can be crossed once he offers voluntary testimony on direct

Lost when granted transactional immunity (i.e., full)

Not lost through derivative use testimony (using testimony and any evidence derived)