Privileges

Question 1

general procedure of privileges

Answer 1

in federal question cases and federal criminal cases, follow federal common law.

in civil cases in federal court based on diversity, privilege is determined by state law (Erie)

Question 2

privilege under common law

Answer 2

except as otherwise provided, no person has a privilege to:
-refuse to be a witness;
-refuse to disclose any matter, or
-refuse to produce any object or writing.

Question 3

Attorney-Client privilege

Answer 3

*the client is the holder

the client may refuse to disclose (and prevent others from disclosing) confidential communications made for the purpose of seeking professional legal advice or services.

Question 4

confidential communications

Answer 4

only communications. includes oral and written statements intended to be communicative.

*observations and tangible things are generally not protected.

*includes work material prepared by attorney in anticipation of litigation

Question 5

client includes

Answer 5

prospective clients- any person who is seeking professional legal services or consulting with the possibility of obtaining legal services

Question 6

attorney includes

Answer 6

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

Question 7

In a corporation, who is protected by attorney-client privilege?

Answer 7

All employees who are either directed to communicate with the attorney or are communicating pursuant to their corporate responsibilities

Question 8

What is the duration of attorney-client privilege?

Answer 8

Until it is waived; survives client’s death

Question 9

eavesdroppers in A-C privilege

Answer 9

-unknown eavesdroppers DO NOT destroy the privilege

-known or anticipated eavesdroppers DESTROY the privilege

Question 10

third parties in A-C privilege

Answer 10

privilege extends to:
-essential third parties (accountants, secretaries, translators)
-attorney representatives (persons hired by the attorney)

Question 11

waiver of A-C privilege

Answer 11

failure to assert in a timely manner usually results in waiver.

Where disclosure is permitted, the attorney may only disclose confidential information to the extent necessary.

A blanket or total waiver results ONLY IF:
-the waiver was intentional; and
-both the disclosed and undisclosed information concerns the same subject matter.

Question 12

inadvertent waiver

Answer 12

The court will find it was NOT a waiver if:
1. the client did NOT intend to waive the privilege;
2. the client took reasonable steps to protect the information; and
3. the client took timely steps to remedy the disclosure.

Question 13

exceptions to A-C privilege

Answer 13

1. FUTURE crime or fraud
2. suits between attorney and client
3. “joint client” exception: two clients hire the same attorney and are involved in litigation between each other)

Question 14

psychotherapist-patient privilege

Answer 14

protects confidential communications between a licensed psychotherapist and a patient who is seeking diagnosis or treatment for a medical condition (mental or emotional)

*Extends to licensed social workers, psychologists, mental health specialists, psychiatrists, marriage counselors.

Question 15

exceptions to psychotherapist-patient privilege

Answer 15

1. statements made regarding commitment proceedings;
2. statements dealing with court-ordered examinations;
3. when the medical / mental health condition is part of the claim
4. future crime or fraud

Question 16

2 types of spousal privilege

Answer 16

1. spousal testimony privilege
2. Spousal (marital) communications privilege

Question 17

Spousal (marital) communications privilege

Answer 17

*both spouses hold the privilege, and applies in civil and criminal cases.

protects confidential communications made DURING the marriage.

Question 18

How long does the marital communication privilege last?

Answer 18

always. divorce has no effect, the communications from during the marriage remain protected and survive death of spouse

Question 19

are observations protected?

Answer 19

majority position: not protected

Question 20

communications in presence of older children, friends, and relatives

Answer 20

not protected

Question 21

exceptions to spousal communications privilege

Answer 21

1. victim spouses or children: no privilege in criminal cases or intentional tort where the other spouse or the children are victims.
2. suits between spouses
3. joint spousal participation in a crime

Question 22

Spousal testimony privilege

Answer 22

*applies to criminal cases only

protects all communications, regardless of confidentiality, both DURING and BEFORE marriage.
*includes testimony, observations, and impressions

Question 23

the holder of the spousal immunity privilege

Answer 23

under CL: the party-spouse

under FRE: 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 24

when is the spousal testimony privilege terminated?

Answer 24

upon divorce. a valid marriage is required at the time of the testimony.

Question 25

exceptions to spousal testimony privilege

Answer 25

1. 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.
2. 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 26

religious privilege

Answer 26

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

*either the penitent or clergyman may assert the privilege

Question 27

political vote privilege

Answer 27

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

Question 28

identity of informer privilege

Answer 28

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.

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

Question 29

5th amendment privilege against self-incrimination

Answer 29

applies to evidence that is testimonial (taken on the stand)
-does not apply to real and demonstrative evidence (blood, hair, handwriting samples, fingerprints, tatoos)

*prosecutor may not comment on D’s refusal to testify

Question 30

incrimination

Answer 30

if the person’s statement cannot incriminate him, the privilege does NOT apply.

-a statement cannot be incriminating if double jeopardy bars prosecution.

Question 31

waiver of privilege against self-incrimination

Answer 31

when a witness waives, cross-examination is limited to the subject matter about which the privilege was waived.

Question 32

three types of immunity under 5th amendment privilege against self-incrimination

Answer 32

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

Question 33

transactional immunity

Answer 33

a witness with transactional immunity cannot be prosecuted for the offense to which their statement refers

if granted, bars assertion of self-incrimination privilege

Question 34

derivative use immunity

Answer 34

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 of self-incrimination

Question 35

use immunity

Answer 35

the witness’s statements cannot be used against them, but the prosecution does not agree 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 self-incrimination privilege