Privileges Flashcards
What is spousal testimony privilege?
Witness spouse holds privilege in criminal cases and may decide whether or not to testify
What is attorney-client privilege?
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
Can the attorney ever assert attorney-client privilege
A lawyer may assert the privilege on behalf of the client
What are the type of confidential communications protected under attorney-client privilege
Communications are protected, but observations and tangible things generally are not
What is the nature of a communication for the purposes of attorney-client privilege?
Communications include oral and written statements and conduct intended to be confidential
Does eavesdropping destroy attorney-client privilege
Generally unknown eavesdroppers don’t destroy the privilege, but known or anticipated eavesdroppers do destroy the privilege
What types of documents are not privileged under attorney-client privilege?
Pre-existing documents ,including bank records and deeds are not privileged
What types of materials are protected as work product under attorney-client privilege?
Yes, work product material prepared by the attorney in anticipation of litigation, including documents, files and notes is privileged.
What is an exception to the work-product material privilege regarding the attorney-client privilege?
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
When does the attorney client privilege extend to third parties?
The attorney-client privilege extends to
1. essential third parties
2. attorney representatives
Who are essential third-parties that are included in the attorney-client privilege?
Parties who are furthering some purpose of the attorney-client relationship
Who are attorney representatives for purposes of attorney-client relationship?
Persons hired by the attorney to assist in the rendition of legal services
Who is a client for the purposes of attorney-client privilege
Any person or entity seeking professional legal services or consulting with and attorney with the possibility of obtaining legal services
Who is an attorney for the purpose of attorney-client privilege?
A lawyer is anyone authorized or reasonably believed by the client ot be authorized to practice law
What are exceptions to attorney-client privilege?
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
What is doctor-patient privilege?
The federal rules doesn’t recognize a doctor-patient privilege
What is psychotherapist-patient privilege?
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
Who is included in the psychotherapist-patient privilege?
Privilege extends to licensed social workers, psychologists, mental health specialists, psychiatrists and marriage counselors
What are exceptions to psychotherapist-patient privilege?
- statements made regarding commitment proceedings
- statements dealing with court-ordered examinations
- when the medical condition is part of the claim, including personal injuries or malpractice suits against the provider
- future crime or fraud
What is marital communication privilege
Privilege protects confidential communications between spouses during the marriage
What is a confidential communication for purposes of martial privilege
Communications intended by the parties to be confidential
Who may assert the marital communication privilege?
The privilege can be asserted by either spouse
What type of cases does marital communications privilege apply to?
Both civil and criminal cases
Are observations protected by the martial communications privilege?
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)
When do marital communications become not privileged?
Communications in the presence of older children, friends and relatives are not privileged
What are exceptions to martial communications privilege?
- Crimes or intentional torts committed by one spouse against the other spouse or a child
- divorce proceedings or other adverse civil proceeding
- joint participation in crime, such as where one spouse commits crime with the help of another
What is spousal testimony privilege?
Protects all communications, regardless of confidentiality, both during and before marriage, including testimony, observations and impressions
Who is the spousal testimony privilege held by?
Common law: privilege is held by the party-spouse
FRE: witness-spouse
Under FRE, who may assert the spousal testimony privilege?
The witness spouse, such that although the witness spouse can’t be compelled to testify, they can choose to do so if desired.
In what types of cases does spousal testimony privilege apply?
Criminal cases only
During what time are communications covered under spousal testimony privilege
Communications may be from before or during the marriage, but privilege may only be exercised while married, and is lost upon divorce
What are exceptions regarding spousal testimony privilege?
- one spouse is charged with a crime against the other
- criminal cases involving a child of either spouse (e.g. circumstances where one spouse is on trial for abuse of a child)
What is religious privilege?
Privilege protects confidential communications made from penitent to clergyman in their professional capacity as spiritual advisor
Who may assert religious privilege?
Either clergyman or penitent may assert the privilege
What is the 5th A privilege against self-incrimination?
Privilege applies to evdience that is testimonial in nature
What are limits of 5th A privilege against self-incrimination?
Privilege does not apply to real and demonstrative forms of evidence, including blood, hair or handwriting samples, fingerprints or tattoos
Is D’s refusal to testify protected by the 5th amendment?
Yes, under 5th A privilege against self-incrimination, the prosecutor may not comment on D’s refusal to testify
Can D waive 5th A privilege?
Yes, a witness may waive the privilege
Can 5th A privilege be partially waived?
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
What are the types of immunity that may be granted to avoid violating 5th A privilege?
- transactional immunity
- derivative use immunity
- use immunity
What is transactional immunity?
A type of immunity that protects 5th A privilege that allows witness to not be prosecuted for the offense to which the statement refers
What is derivative use immunity?
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
What is use immunity?
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
