Privileges

Question 1

Does the FRE have rules on privilege?

Answer 1

[FRE 501] No, FRE has adopted federal common law privileges.

Question 2

Testimonial Privilege

Answer 2

Allows a witness to refrain from disclosing certain knowledge

Question 3

What are the basic testimonial privileges?

Answer 3

(1) Attorney/client
(2) Psychotherapist/client
(3) Spousal
(4) Doctor/patient
(5) Clergy-penitent (some jurisdictions)

Question 4

What is required for a privilege to apply?

Answer 4

(1) Persons in the conversation are in protected/privileged relationship;
(2) Communication was intended to be confidential;
(3) Holder is asserting the privilege;
(4) Privilege was not waived; and
(5) No exceptions apply

Question 5

When does the presence of a third party not destroy privilege?

Answer 5

(1) Third party is essential to the conversation or (2) third party’s presence is unknown to either party

Question 6

When is a privilege waived?

Answer 6

(1) Privilege is not timely asserted; (2) Privilege is waived via contract; or (3) Holder intentionally tells a third party about the communication

Question 7

What is attorney-client privilege?

Answer 7

Privilege held by the client that protects communications intended to be confidential made for the purpose of seeking professional legal advice or services

Question 8

Who does attorney-client privilege apply to?

Answer 8

Client; lawyer; and anyone employed by the lawyer to assist in the rendition of legal services

Question 9

In a corporation, who is protected by attorney-client privilege?

Answer 9

All employees who are either directed to communicate with the attorney or are communicating pursuant to their corporate responsibilities

Question 10

Under what circumstances does attorney-client privilege not exist?

Answer 10

(1) Communication was sought to facilitate a crime or fraud; (2) Lawyer’s client is now deceased and disclosure is necessary to effectuate a will; (3) Communication is necessary for the lawyer to defend him/herself; and (4) Lawyer had two joint clients who are now adverse to one another

Question 11

What is the duration of attorney-client privilege?

Answer 11

Until it is waived; survives the client’s death

Question 12

If there has been inadvertent disclosure of privileged information, what steps must be taken to ensure the privilege is not waived?

Answer 12

[FRE 502(b)] Holder of the privilege must: (1) have taken reasonable steps to prevent disclosure; and (2) promptly took reasonable steps to rectify the error.

Question 13

What is doctor-patient privilege?

Answer 13

State law privilege protecting communications between patients and physicians, recognized by most federal courts.

Question 14

When does doctor-patient privilege exist?

Answer 14

When communication is (1) intended to be confidential; (2) between a doctor and a patient; (3) made for the purpose of obtaining treatment or diagnosis; and (4) relevant to the medical treatment or diagnosis

Question 15

Under what circumstances does doctor-patient privilege not apply?

Answer 15

(1) Personal injury cases where patient’s condition is at issue; (2) If the examination or communication was made for purpose of litigation; (3) If the communication was used to facilitate a crime; (4) If there is a dispute between the doctor and patient; or (5) Patient waived the privilege

Question 16

When does the psychotherapist-patient privilege apply?

Answer 16

If communication was: (1) Intended to be confidential; (2) made to a licensed therapist, psychologist, psychiatrist, or social worker; (3) during the therapy or course of treatment

Question 17

What are the two types of spousal privilege?

Answer 17

(1) Spousal testimonial privilege and (2) Marital communications privilege

Question 18

What is the marital communications privilege?

Answer 18

Privilege that can be invoked by either spouse. Protects confidential communications made during a legally valid marriage. Applies in both civil and criminal cases.

Question 19

How long does the marital communication privilege last?

Answer 19

Never terminates, can be invoked after divorce for communications made during the marriage.

Question 20

Under what circumstances does the marital communications privilege not apply?

Answer 20

(1) When one spouse destroys confidentiality by disclosing the communications to a third party; (2) in a proceeding between the two spouses; (3) in a proceeding in which one spouse is charged with a crime against children or the other spouse; (4) in a proceeding in which the spouses are co-D’s; and (5) if communications were used to facilitate a crime

Question 21

What is spousal testimonial privilege/immunity?

Answer 21

Protects a witness-spouse from having to testify against a defendant-spouse in a criminal trial. Applies to events before and during the marriage.

Question 22

Who can assert spousal immunity?

Answer 22

Witness-spouse only. The defendant-spouse cannot prevent the witness-spouse from testifying.

Question 23

When does spousal immunity terminate?

Answer 23

Upon divorce or annulment

Question 24

When does the Clergy-Penitent privilege protect?

Answer 24

The privilege only applies to communications: (1) between penitent and clergyman; (2) in the clergyman’s role as a spiritual adviser; (3) under conditions of confidentiality

Question 25

Do news organizations have the privilege to protect the identity of their sources?

Answer 25

Not on the federal level, but several states have enacted laws so that journalists are not required to reveal their sources.

Question 26

What is the 5th Amendment privilege and what does it apply to?

Answer 26

Holds that witnesses in criminal and civil trials have right against self incrimination