Privileges Flashcards
What are the two marital priviles?
- Spousal Tesimony
- Marital Communications
Can Spousal Testimony be used in criminal or civil cases?
Criminal
Can Marital Communications privilege be used in criminal or civil cases?
Both
Who can assert Spousal Testimony?
Witness spouse is the one who can choose to exercise the privilege. (Trammel v. US)
Who can assert the Marital Communications privilege?
Both spouses, one spouse can’t waive it on behlf of the other.
Does the Spousal Testimonial privilege survive the marriage?
No
Does the marital communications privilege survive the marriage?
Yes, but it only protects communication made during the marriage.
What are the exceptions to the Spousal Testimonial privilege?
Intra familiy offenses (ie domsestic violect); also does not apply if the spouses were co-conspirators in a crime
What are the exceptions to the marital communications privilege?
Crime-fraud communications
What is the marital communications privilege?
A person cannot be required to testify regarding confidential communications the person had with his or her spouse while they were married.
What are the elements of attorney-client privilege?
- A Communication;
- In confidence;
- Between a layer and client;
- In the course of provision of professional legal services
For the purpose of attorney-client privilege, who is considered an attorney?
Any person authorized, or reasonably believed by the client to be authorized, to pactice law in any state or nation.
Does the attorney-client privilege protect the attorney’s perception of the client’s demeanor or attitude?
No, it only covers the communication itself.
Does attorney-client privilege apply when there is a 3rd party in the room?
Generally no. The only time it would is if the 3rd person is necessary for providing legal services (ie a translator or a paralegal).
Who has the burden of proof for attorney-client privilege?
The burden of proof that the privilege applies is on the party asserting the privilege.
What is the Crime-Fraud Exeception?
This exception waives attorney-client privilege if the client seeks or obtains legal services for the purpose of enabling or aiding anyone to plan to commit a crime or fraude (even if the attorney is unaway).
Who can waive attorney-client privilege?
The privilege belongs solely to the client and can only be waived by him. If the attorney waives it, it is with the client’s acquiesence or as the client’s agaent.
How is attorney-client privilege waived?
- Sharing confidential information with a 3rd party.
- Conduct inconssistent with a desire to keep information confidential
- If the client attacks his attorney’s competence in giving legal advice.
How broad is the waiver of attorney-client privilege?
A narrow disclosure can result in a borad waiver. Disclosure of something small can result in disclosure of entire communication.
