Privileges

Question 1

Why do testimonial privileges exist?

Answer 1

• Testimonial privileges exist for practicality and protection of certain societal relationships. If society does not protect the sanctity of these relationships, people would be less candid with their attorneys, mental health professionals, or forego medical attention. Or, if a person were forced to testify against a spouse, the nature of that relationship changes for the worse forever.

Question 2

How is a privilege determined in civil diversity cases?

Answer 2

• In civil cases (diversity actions), the privilege of a witness is determined by state law (Erie doctrine).
  o EXAMPLE: In a diversity action in federal court, the issue is whether the doctor-patient privilege should be recognized. Although the doctor-patient privilege is not recognized at common law (it’s statutory), a federal court would apply state substantive law (Erie doctrine), and if the particular state had a doctor-patient privilege (which they all do), then the federal court would apply it.

Question 3

How is a privilege determined in federal question and federal criminal cases?

Answer 3

• In federal question cases and federal criminal cases, issues of privilege are determined by federal common law.

Question 4

Under common law, no person has the privilege to do what three things?

Answer 4

• Except as otherwise provided by the Constitution, federal statute, or by the FRE, no person has a privilege to:
  o refuse to be a witness;
  o refuse to disclose any matter; or
  o refuse to produce any object or writing.

Question 5

What are the four privileges recognized in federal courts and all 50 states?

Answer 5

• attorney-client (legal);
• psychotherapist-patient (mental);
• clergy-penitent (religious); and
• spousal testimony and spousal communication (marital).

Question 6

What are the six key privilege issues?

Answer 6

• protected relationship;
• communication;
• confidentiality;
• holder;
• waiver; and
• exceptions

Question 7

What may a client refuse to do under attorney-client privilege?

Answer 7

• The client may refuse to disclose (and prevent other persons from disclosing)
  o (1) confidential communications made
  o (2) for the purpose of seeking professional legal advice or services

Question 8

When does the attorney-client privilege end?

Answer 8

• The privilege SURVIVES the client’s death and may be asserted by an executor or the attorney.

Question 9

What is and is not protected under attorney-client privilege?

Answer 9

• Communications are protected. This includes oral and written statements and conduct intended to be communicative.
• Observations and tangible things, generally, are NOT.
• Pre-existing documents are NOT privileged (bank records; deeds).
• Fee arrangements are not privileged; neither are billing records.
  o EXAMPLE: A client arrives at their attorney’s office in blood-soaked clothing (an observation, so NOT privileged), confesses to killing the victim (privileged). When asked how he did it, Client makes stabbing motion (privileged), and turns over the murder weapon (NOT privileged).

Question 10

Can eavesdroppers destroy attorney-client privilege?

Answer 10

• Unknown eavesdroppers DO NOT destroy the privilege.
• Known or anticipated eavesdroppers DESTROY the privilege.
  o EXAMPLE: If an attorney is speaking to a client in a hallway outside of a courtroom loud enough to be overheard, it’s not confidential. However, if the conversation is held in a room with a closed door, and someone happens to put their ear against the door to hear what is being said, the conversation is privileged.

Question 11

Are prospective clients protected by attorney-client privilege?

Answer 11

• Client includes any person (public officer, corporation, or association-public or private) who is SEEKING professional legal services OR consulting with the possibility of obtaining legal services.
  o EXAMPLE: A person enters an attorney’s office, and says, “I killed my boss,” and hands over a bag containing a gun. The person then says, “How much is this going to cost me?” Regardless of whether the two come to an agreement on representation or price, the statement is privileged.

Question 12

Who is considered a lawyer for the purpose of attorney-client privilege?

Answer 12

• Lawyer includes any person authorized or “reasonably believed” by the client to be authorized (i.e., disbarred attorney, non-lawyer) to engage in the practice of law in any state or nation.
  o EXAMPLE: A defendant approaches a police officer wearing a suit in a courthouse and says, “I did some bad stuff, and need to find a lawyer to get me out of this mess. I heard you talking and you sound like you know your stuff. How much do you charge?” If the defendant honestly believed that the police officer was a lawyer, then the statements made would be inadmissible.

Question 13

Does the attorney-client privilege extend to investigators and accountants hired by the attorney?

Answer 13

• The attorney-client privilege extends to individuals who are furthering some purpose of the relationship or are hired by the attorney to assist in the rendition of legal services.
  o EXAMPLE: Accountants, investigators, translators, doctors, jury consultants, secretaries, and stenographers.

Question 14

What is the work product doctrine?

Answer 14

• 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).

Question 15

What is an exception to the work product doctrine?

Answer 15

• 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. This is usually expressed as a “rationale” for discovery.

Question 16

Who determines whether work product requires disclosure?

Answer 16

• Whether the demand for the work product requires disclosure is a preliminary question of law for the judge.

Question 17

Is the doctor-patient privilege recognized under the federal rules of evidence?

Answer 17

• 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.
• However, there is a psychotherapist-patient privilege that can be asserted through common law which governs federal courts.

Question 18

To whom does the psychotherapist-patient privilege extend?

Answer 18

• Extends to licensed social workers, psychologists, mental health specialists, psychiatrists, marriage counselors. NOT educational and vocational counselors.

Question 19

What does the psychotherapist-patient privilege protect?

Answer 19

• 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).

Question 20

What are some exceptions to the psychotherapist-patient privilege?

Answer 20

• statements made regarding commitment proceedings;
• statements dealing with court-ordered examinations;
• when the medical condition is part of the claim, like personal injury actions or malpractice suits; AND
• future crime or fraud (same as attorney-client).

Question 21

Who can assert marital communications privilege?

Answer 21

• The privilege can be asserted by either spouse (both hold the privilege).

Question 22

Does the marital communications privilege apply in criminal cases?

Answer 22

• Yes, it applies in both civil AND criminal cases.

Question 23

What does the marital communications privilege protect?

Answer 23

• It only protects confidential communications (i.e., those intended by the parties to be confidential) between the spouses made DURING the marriage.
• The majority rule is that only communications are protected, not observations.
• EXAMPLE: A witness observes their spouse using heroin or possessing a gun. NOT protected because these are observations.

Question 24

Does the marital communications privilege end at divorce?

Answer 24

• 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.

Question 25

What kinds of communications made by a spouse is not privileged?

Answer 25

• Communications in the presence of OLDER children, friends, and relatives are NOT privileged

Question 26

In which kinds of suits would the marital communications privilege not apply?

Answer 26

• Victim Spouses or Children: No privilege exists in criminal cases or intentional tort cases where the other spouse or the children are victims.
• Suits Between Spouses: Divorce proceedings (really, any suits between the spouses) - look for adverse legal proceedings.
• Joint spousal participation in a crime.
  o 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 27

What does the spousal immunity privilege protect?

Answer 27

• 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.

Question 28

Who holds the spousal immunity privilege?

Answer 28

• The privilege is held by:
  o under common law, the party-spouse; and
  o 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.

Question 29

What are the key characteristics of spousal immunity privilege?

Answer 29

• Under this rule, a testifying spouse may refuse to testify against their current spouse in a criminal case.
• It applies to anything that happened before or during the marriage
• A valid marriage is required. No privilege exists if the marriage is void

Question 30

Does divorce affect the validity of the spousal immunity privilege?

Answer 30

• The privilege is lost upon divorce.

Question 31

What are some exceptions in which the spousal immunity privilege does NOT apply?

Answer 31

• 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.
• 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 32

How do the marital communications privilege and the spousal immunity privilege differ?

Answer 32

• Communications privilege applies to civil and criminal cases, but immunity privilege applies to criminal cases only
• Communications privilege is held by both spouses, but immunity privilege is held by the witness-spouse only
• Communications privilege only protects confidential communications only, not observations or stuff, whereas the immunity protects any testimony
• Communications privilege applies if married at the time of communications, but immunity privilege applies if married at the time of trial

Question 33

What does the religious privilege protect?

Answer 33

• Protects confidential communications made from penitent to clergyman in their professional capacity as spiritual advisor.
• The statement needs to have been made under conditions of confidentiality.

Question 34

Who may assert a religious privilege?

Answer 34

• Either the clergyman or the penitent may assert the privilege.

Question 35

What are the exceptions to religious privilege?

Answer 35

• There are no generally recognized exceptions.

Question 36

What is the political vote privilege?

Answer 36

• Every person has a privilege to refuse to disclose their vote, unless compelled by state election laws.

Question 37

What is the identity of informer privilege?

Answer 37

• 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.

Question 38

Who can assert the identity of informer privilege?

Answer 38

• Only the government can assert this privilege, not the informant.

Question 39

What is executive privilege?

Answer 39

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

Question 40

What kind of evidence does the Fifth Amendment privilege against self-incrimination protect?

Answer 40

• A constitutional privilege that applies only to evidence that is “testimonial.”

Question 41

What kinds of evidence are not protected by the privilege against self-incrimination?

Answer 41

• Presentation of real and demonstrative evidence are not protected.
• Blood, hair, handwriting samples, fingerprints, lineups, photo IDs, scars, tattoos, requiring a party to put on a hat or a bloody glove, or requesting a witness to read something aloud.
• If the person’s statement cannot incriminate him, the privilege does NOT apply.
• A statement cannot be incriminating if double jeopardy bars prosecution.

Question 42

What are three kinds of immunity?

Answer 42

• (1) transactional immunity
• (2) derivative use immunity
• (3) use immunity

Question 43

What is transactional immunity?

Answer 43

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

Question 44

What is derivative use immunity?

Answer 44

• Neither the person’s statements nor any evidence obtained as a result of the statement can be used against the person.
• If granted, this bars assertion of the privilege.

Question 45

What is use immunity?

Answer 45

• 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.

Question 46

What is an example that distinguishes between the three kinds of immunity?

Answer 46

• EXAMPLE. Defendant (D) is to be questioned about killing Vic with a gun and granted immunity. D admits killing Vic with a gun later thrown in the river. Police found gun after D made the statement.
• > If granted transactional immunity, Gov’t promises it will not prosecute D for crimes admitted. D can NOT be prosecuted at all for the killing and can NOT assert the 5th Amendment privilege to refuse to answer questions about the killing.
• > If granted derivative use immunity, Gov’t promises it will not use D’s statement or evidence obtained from the statement, but D can be prosecuted with other evidence. In a proceeding other than his prosecution, D can NOT assert the 5th Amendment privilege to refuse to answer questions about the killing.
• > If granted only use immunity, Gov’t promises only that it will not use D’s statement, but D can be prosecuted with other evidence. D can still assert the 5th Amendment privilege to refuse to answer questions about the killing.

Question 47

Even if a witness is granted immunity, what can they still be prosecuted for?

Answer 47

• An immunized witness may still be prosecuted for perjury.