Privileges

Question 1

spousal privileges

Answer 1

two types:
1. spousal immunity
2. confidential marital communications

does NOT apply
1. in cases between the spouses, OR
2. when a spouse commits a crime against the other spouse or their children

Question 2

spousal immunity

Answer 2

a witness-spuse in a valid marriage MAY refuse to testify against their spouse in a criminal case
- ONLY the wintess-spouse holds this privilege (D can’t prevent testimony)
- Privilege ends AFTER divorce

NOTE: spousal immunity does NOT apply in civil cases

can include things before the marriage too

Question 3

confidential marital communications

Answer 3

communications between spouses are privileges if:
1. made DURING the course of a valid marriage, AND
2. were intended to be confidential

NOTE: either spouse may assert the privilege and it applies AFTER divorce

NOTE: privilege applies in BOTH civil and criminal cases

can be for communications made before marriage

Question 4

attorney-client privilege

Answer 4

protects confidential communications between an attorney and client if:
1. intended to be confidential, AND
2. made to facilitate legal services

NOTE: the client holds the privilege and may waive it by disclosing info to 3P
- BUT it’s NOT waived through inadvertent disclosure

Question 5

attorney-client privilege exceptions

Answer 5

attorney-client privilege does NOT appply when:
1. legal services are sought to further a crime or fraud,
2. a litigation is related to a breach of duty between the attorney and client, OR
3. joint clients are later involved in civil litigation against each other

Question 6

attorney work product doctrine

Answer 6

protects from disclosure all materials prepared by an attorney (or his agents) in anticipation of or during litigation

Exceptions: if a party shows:
- a substantial need exists, AND
- a substantial equivalent CANNOT be obtained without undue hardship

Question 7

physician-patitent privilege

Answer 7

Most states: recognize the privilege if (1) it’s a confidential patient communication, (2) made to a physician, (3) for the purpose of medical diagnosis or treatment
- the patient holds the privilege BUT it may be waived when a medical condition is placed in issue (ie, personal injury lawsuit)

Federal courts: DO NOT recognize the privilege
- HOWEVER state law governs privilege for civil cases in federal court on a claim/defense when state law supplies the rule of decision

Question 8

psychotherapist-patient privilege

Answer 8

ALL states recognize the privilege which protects:
1. confidential patient communications,
2. made to a psychotherapist (psychologist, psychiatrist, or social worker),
3. for the purpose of psychological treatment

NOTE: the patient holds the privilege and MAY waive it

Question 9

psychotherapist-patient privilege exceptions

Answer 9

include:
1. court-ordered examinations,
2. civil commitment proceedings to determine if hospitaliziation is required,
3. when the condition is placed “in issue” by the patient,
4. the dangerous-patient exception: the therapist has a duty to warn when he knows (or should know) that the patient poses a serious threat of violence to foreseeable Vs