Privileges

Question 1

Four Privileges recognized:

Answer 1

1. attorney-client (legal);
2. psychotherapist-patient (mental);
3. clergy-penitent (religious); and
4. spousal testimony and spousal communication (marital).

Question 2

Attorney-Client Privilege

Answer 2

1.) the client is the holder of the privilege

2. ) Rule: The client may refuse to disclose (and prevent other persons from disclosing) (1) confidential communications made (2) for the purpose of seeking professional legal advice or services.
   * **NOTE: The privilege SURVIVES the client’s death and may be asserted by an executor or the attorney.

3.) Note: Communications are protected. Observations and tangible things, generally, are NOT. This includes oral and written statements and conduct intended to be communicative.

**Pre-existing documents are NOT privileged (bank records; deeds).

4.) Caveats: Fee arrangements are not privileged; neither are billing records.

Question 3

Attorney-Client Privilege - Eavesdroppers

Answer 3

• Unknown eavesdroppers DO NOT destroy the privilege.

* Known or anticipated eavesdroppers DESTROY the privilege.

Question 4

Waiver of Attorney-Client Privilege

Answer 4

1. ) Failure to assert a privilege in a timely manner usually results in a waiver.
2. ) Waiver of a privilege generally operates only as a partial waiver.
   a. ) The privilege is waived only to the extent to permit reasonable scrutiny of the disclosed information by the opposing party.
3. ) A blanket or total waiver results ONLY IF:
   a. ) the waiver was intentional; and
   b. ) both the disclosed and undisclosed information concerns the same subject matter.

Question 5

Inadvertent Waiver:

Answer 5

The court will find it was NOT a waiver if:

1. ) the client did NOT intend to waive the privilege;
2. ) the client took reasonable steps to protect the information; and
3. ) the client took timely steps to remedy the disclosure.

Question 6

Situations where there is NO attorney-client privilege:

Answer 6

• Future crime or fraud.
• Suits between attorney and client.
• “Joint client” exception: Two clients hire the same attorney and are then involved in litigation between each other. Result: Their earlier communications are not privileged (absent agreement otherwise).

Question 7

work product doctrine

Answer 7

• Mainly a discovery rule that permits refusal to provide documents in discovery.
• Work product is material prepared by the attorney in anticipation of litigation (documents, files, notes, thoughts, or impressions).
• Exception: If the party seeking work product can show a “substantial hardship” and “no other way of obtaining the evidence,” then the work product is discoverable, meaning it must be provided.

Question 8

Doctor-Patient Privilege

Answer 8

The medical doctor-patient privilege, while applicable in all states, was not applicable at common law and does not exist under the Federal Rules of Evidence.

Question 9

Psychotherapist-Patient Privilege

Answer 9

1. ) Extends to licensed social workers, psychologists, mental health specialists, psychiatrists, marriage counselors. NOT educational and vocational counselors.
2. ) The privilege applies to protect confidential communications between a psychotherapist and a patient who is seeking diagnosis or treatment for a medical condition (mental or emotional).

3.) Exceptions where the privilege does not exist:
• statements made regarding commitment proceedings;
• statements dealing with court-ordered examinations;
• when the medical condition is part of the claim; and
EXAMPLE: Personal injury actions or malpractice suits.
• future crime or fraud

Question 10

Marital (Spousal) Communications Privilege

Answer 10

1. ) The privilege can be asserted by either spouse (both hold the privilege).
2. ) It applies in both civil AND criminal cases.
3. ) It only protects confidential communications (i.e., those intended by the parties to be confidential) between the spouses made DURING the marriage.

**Majority Position: Only communications are protected, not observations.

4. ) Divorce has no effect; communications remain protected and survive the death of a spouse – all that matters is when it was said, not when it is being used.
5. ) Communications in the presence of older children, friends, and relatives are not privileged.

Question 11

Exceptions to Marital Communications Privilege

Answer 11

1. ) Victim Spouses or Children: No privilege exists in criminal cases or intentional tort cases where the other spouse or the children are victims.
2. ) Suits Between Spouses: Divorce proceedings (really, any suits between the spouses) – look for adverse legal proceedings.
3. ) Joint spousal participation in a crime.
   * EXAMPLE: The defendant is charged with tax fraud. The defendant’s spouse assisted but was not indicted. The unindicted spouse may be compelled to testify as to confidential communications between them because there is no privilege, as they were both involved in the crime.

Question 12

Spousal Testimony Privilege (or spousal immunity)

Answer 12

1.) Protects all communications, observations, and impressions, regardless of confidentiality, both during AND before marriage. A spouse cannot be compelled to testify about virtually anything. The purpose is to promote marital harmony.

2. ) Holder: The privilege is held by:
   a. ) under common law, the party-spouse; and
   b. ) in federal courts, the witness-spouse, so although the witness-spouse cannot be compelled, the witness-spouse could choose to testify over the party-spouse’s objection.

3.) Entire privilege is lost upon divorce & no privilege exists if the marriage is not valid.

Question 13

Exceptions to Spousal Testimony Privilege

Answer 13

1. ) Situations where one spouse is charged with a crime against the other, though in many jurisdictions, spousal immunity applies even in domestic assault cases between the spouses.
2. ) Criminal cases involving a child of either spouse (e.g., the defendant is on trial for sexual abuse of a stepchild; the defendant’s spouse may be compelled to testify).

Question 14

Religious Privilege

Answer 14

1. ) Protects confidential communications made from penitent to clergyman in their professional capacity as spiritual advisor.
2. ) Either the clergyman or the penitent may assert the privilege.
3. ) the statement needs to have been made under conditions of confidentiality.
4. ) There are no generally recognized exceptions.

Question 15

Identity of Informer Privilege

Answer 15

1. ) Both the U.S. and the individual states have a privilege to refuse to disclose the identity of a person funneling information vital and relevant to law enforcement.
2. ) Only the government can assert this privilege, not the informant.1.

Question 16

Executive Privilege

Answer 16

1. ) A court-created privilege: In U.S. v. Nixon (1974), the Supreme Court recognized such a constitutional privilege for the President.
2. ) Courts decide whether the privilege applies, although the President has an absolute privilege to refuse to disclose matters of national security

Question 17

Fifth Amendment Privilege against Self-Incrimination

Answer 17

1. ) This privilege applies only to evidence that is “testimonial.”
2. ) Presentation of real and demonstrative evidence are not protected.
3. ) If the person’s statement cannot incriminate him, the privilege does NOT apply. A statement cannot be incriminating if double jeopardy bars prosecution.

Question 18

Immunity (Fifth Amendment Privilege against Self-Incrimination)

Answer 18

Three Types:

1.) Transactional Immunity — Broad.
• A witness with transactional immunity cannot be prosecuted for the offense to which the statement refers.
• If granted, this bars assertion of the privilege.

2.) Derivative Use Immunity
• Neither the person’s statements nor any evidence obtained as a result of the statement can be used against the person, but D can be prosecuted with other evidence.
• If granted, this bars assertion of the privilege.

3.) Use Immunity — Narrow.
• Statements by the witness may not be used against them, but the prosecution does not agree that it will never prosecute, nor is the prosecution barred from using evidence obtained as a result of the statement.
• This is NOT sufficient to bar assertion of the privilege.