Privileges

Question 1

What is spousal testimony privilege?

Answer 1

Witness spouse holds privilege in criminal cases and may decide whether or not to testify

Question 2

What is attorney-client privilege?

Answer 2

The client is the holder of the privilege and may refuse to disclose and can prevent others from disclosing confidential communications made for the purpose of seeking professional legal advice or services

Question 3

Can the attorney ever assert attorney-client privilege

Answer 3

A lawyer may assert the privilege on behalf of the client

Question 4

What are the type of confidential communications protected under attorney-client privilege

Answer 4

Communications are protected, but observations and tangible things generally are not

Question 5

What is the nature of a communication for the purposes of attorney-client privilege?

Answer 5

Communications include oral and written statements and conduct intended to be confidential

Question 6

Does eavesdropping destroy attorney-client privilege

Answer 6

Generally unknown eavesdroppers don’t destroy the privilege, but known or anticipated eavesdroppers do destroy the privilege

Question 7

What types of documents are not privileged under attorney-client privilege?

Answer 7

Pre-existing documents ,including bank records and deeds are not privileged

Question 8

What types of materials are protected as work product under attorney-client privilege?

Answer 8

Yes, work product material prepared by the attorney in anticipation of litigation, including documents, files and notes is privileged.

Question 9

What is an exception to the work-product material privilege regarding the attorney-client privilege?

Answer 9

Work product material that would otherwise be privileged may be admissible if the party seeking admission can show a substantial hardship and no other way of obtaining evidence

Question 10

When does the attorney client privilege extend to third parties?

Answer 10

The attorney-client privilege extends to
1. essential third parties
2. attorney representatives

Question 11

Who are essential third-parties that are included in the attorney-client privilege?

Answer 11

Parties who are furthering some purpose of the attorney-client relationship

Question 12

Who are attorney representatives for purposes of attorney-client relationship?

Answer 12

Persons hired by the attorney to assist in the rendition of legal services

Question 13

Who is a client for the purposes of attorney-client privilege

Answer 13

Any person or entity seeking professional legal services or consulting with and attorney with the possibility of obtaining legal services

Question 14

Who is an attorney for the purpose of attorney-client privilege?

Answer 14

A lawyer is anyone authorized or reasonably believed by the client ot be authorized to practice law

Question 15

What are exceptions to attorney-client privilege?

Answer 15

there is no attorney-client privilege in cases involving:
1. future crime or fraud
2. suits between attorney and client
3. joint client exception where two clients hire the same attorney and are then involved in litigation between each other

Question 16

What is doctor-patient privilege?

Answer 16

The federal rules doesn’t recognize a doctor-patient privilege

Question 17

What is psychotherapist-patient privilege?

Answer 17

Psychotherapist-patient privilege protects confidential communications between a licensed psychotherapist and a patient who is seeking diagnosis or treatment for a medical condition, either mental or emotional

Question 18

Who is included in the psychotherapist-patient privilege?

Answer 18

Privilege extends to licensed social workers, psychologists, mental health specialists, psychiatrists and marriage counselors

Question 19

What are exceptions to psychotherapist-patient privilege?

Answer 19

1. statements made regarding commitment proceedings
2. statements dealing with court-ordered examinations
3. when the medical condition is part of the claim, including personal injuries or malpractice suits against the provider
4. future crime or fraud

Question 20

What is marital communication privilege

Answer 20

Privilege protects confidential communications between spouses during the marriage

Question 21

What is a confidential communication for purposes of martial privilege

Answer 21

Communications intended by the parties to be confidential

Question 22

Who may assert the marital communication privilege?

Answer 22

The privilege can be asserted by either spouse

Question 23

What type of cases does marital communications privilege apply to?

Answer 23

Both civil and criminal cases

Question 24

Are observations protected by the martial communications privilege?

Answer 24

Under the majority rule, observations are not protected under marital privilege, and spouses may testify regarding them (e.g. one spouse saw the other do drugs, etc)

Question 25

When do marital communications become not privileged?

Answer 25

Communications in the presence of older children, friends and relatives are not privileged

Question 26

What are exceptions to martial communications privilege?

Answer 26

1. Crimes or intentional torts committed by one spouse against the other spouse or a child
2. divorce proceedings or other adverse civil proceeding
3. joint participation in crime, such as where one spouse commits crime with the help of another

Question 27

What is spousal testimony privilege?

Answer 27

Protects all communications, regardless of confidentiality, both during and before marriage, including testimony, observations and impressions

Question 28

Who is the spousal testimony privilege held by?

Answer 28

Common law: privilege is held by the party-spouse
FRE: witness-spouse

Question 29

Under FRE, who may assert the spousal testimony privilege?

Answer 29

The witness spouse, such that although the witness spouse can’t be compelled to testify, they can choose to do so if desired.

Question 30

In what types of cases does spousal testimony privilege apply?

Answer 30

Criminal cases only

Question 31

During what time are communications covered under spousal testimony privilege

Answer 31

Communications may be from before or during the marriage, but privilege may only be exercised while married, and is lost upon divorce

Question 32

What are exceptions regarding spousal testimony privilege?

Answer 32

1. one spouse is charged with a crime against the other
2. criminal cases involving a child of either spouse (e.g. circumstances where one spouse is on trial for abuse of a child)

Question 33

What is religious privilege?

Answer 33

Privilege protects confidential communications made from penitent to clergyman in their professional capacity as spiritual advisor

Question 34

Who may assert religious privilege?

Answer 34

Either clergyman or penitent may assert the privilege

Question 35

What is the 5th A privilege against self-incrimination?

Answer 35

Privilege applies to evdience that is testimonial in nature

Question 36

What are limits of 5th A privilege against self-incrimination?

Answer 36

Privilege does not apply to real and demonstrative forms of evidence, including blood, hair or handwriting samples, fingerprints or tattoos

Question 37

Is D’s refusal to testify protected by the 5th amendment?

Answer 37

Yes, under 5th A privilege against self-incrimination, the prosecutor may not comment on D’s refusal to testify

Question 38

Can D waive 5th A privilege?

Answer 38

Yes, a witness may waive the privilege

Question 39

Can 5th A privilege be partially waived?

Answer 39

Yes, a witness may only partially waive 5th A, in which case cross-examination is limited to the subject-matter about which the privilege was waived

Question 40

What are the types of immunity that may be granted to avoid violating 5th A privilege?

Answer 40

1. transactional immunity
2. derivative use immunity
3. use immunity

Question 41

What is transactional immunity?

Answer 41

A type of immunity that protects 5th A privilege that allows witness to not be prosecuted for the offense to which the statement refers

Question 42

What is derivative use immunity?

Answer 42

A type of immunity that protects 5th A privilege that allows witness to not be prosecuted based on the person’s statements or any evidence obtained as the result of their statements

Question 43

What is use immunity?

Answer 43

A type of immunity that protects 5th A if the witnesses statements cannot be used against them
-does not require that the prosecution agree not to prosecute the witness