Privileges Flashcards
Privileges
Confidential Communications
Ways to lose the Privilege
- Presence of 3rd Parties. If overheard by 3rd party the privilege is destroy, unless:
(a) Unknown Eavesdropper
(b) 3rd Party necessary to assist in the communication - Waiver. Privilege is waived if…
(a) Fails to assert the privilege in a timely manner
(b) Voluntarily discloses
(c) Contractually waives the privilege in advance
Spousal Privilege
Spousal Immunity
Spouse of a criminal defendant may not be called as a witness by the prosecution. Nor may a married person be compelled to testify against his spouse in a criminal proceeding.
Holder of the Privilege –> Witness spouse (may choose to testify but cannot be compelled)
Period
(a) Events that occurred before and during the marriage
(b) can be asserted only during a valid marriage
Spousal Privilege
Confidential Marital Communications
A communication made btw spouses while married is privileged
Holder –> Privilege is held by both spouses (either may assert the privilege and refuse to testify or prevent the other from testifying)
Scope –> Applies only to communications made during marriage (Civil and Criminal cases)
Extends beyond the termination of the marriage
Spousal Privileges
Comparison of Timing
Spousal immunity applies to events occurring before marriage but ends when the marriage does, whereas the con dential communication privilege begins with marriage but continues after the marriage has ended.
Attorney-Client Privilege
(Definition)
A con fidential communication between a client and an attorney for the purpose of obtaining or providing legal assistance for the client is privileged.
Attorney-Client Privilege
(Elements)
1) Confidential - Communication must be intended to be confi dential in order to be privileged.
2) Communication - must be for the purpose of obtaining or providing legal assistance for the client
(Does not protect underlying facts)
(Not privileged when made to an attorney acting in a capacity other than as an attorney - business partner or a witness to a will)
3) Clients holds the Provilege - Attorney must assert on the client’s behalf to protect the his interests. The privilege exists until it is waived (survives termination of the attorney-client relationship, and even the client’s death)
Attorney-Client Privilege
(Exceptions)
(a) Communications made to enable or aid the commission of what the client knew or should have known was a crime or fraud;
(b) Communications relevant to a dispute btw attorney and client or former client
(c) testamentary exception
(d) Communications between former co-clients who are now adverse to each other.
Attorney-Client Privilege
Work Product Documents
Documents prepared by an attorney for his own use in connection with the client’s case are not covered by the attorney-client privilege because they are not communications. However, such documents are protected under the “work product” doctrine and are not subject to discovery unless the party seeking disclosure (i) demonstrates a substantial need for the information, and (ii) cannot obtain the information by any other means without undue hardship. The mental impressions, conclusions, and trial tactics of an attorney are always protected from discovery.
Physician-Patient Privilege
(Definition)
If Communications were made for the purpose of obtaining medical treatment
Holder –> Patient holds the privilege, so only the patient may decide whether to waive it
Physician-Patient Privilege
(Does not exists if…)
(a) info acquired for reasons other than treatment
(b) The patient’s physical condition is at issue
(c) The communication was made as part of the commission of a crime or tort
(d) dispute btw physician and the patient
(e) Patient contractually waive the privilege
Psychotherapist-Patient Privilege
In the course of diagnosis or treatment
Holder –> Patient holds the privilege, but the psychotherapist must assert the privilege in the patient’s absence
Psychotherapist-Patient Privilege
(Does not exist if…)
(i) the patient’s mental condition is at issue,
(ii) the communication was a result of a court-ordered exam, or
(iii) the case is a commitment proceeding against the patient.
