Privileges Flashcards
general procedure of privileges
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)
privilege under common law
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.
Attorney-Client privilege
*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.
confidential communications
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
client includes
prospective clients- any person who is seeking professional legal services or consulting with the possibility of obtaining legal services
attorney includes
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
In a corporation, who is protected by attorney-client privilege?
All employees who are either directed to communicate with the attorney or are communicating pursuant to their corporate responsibilities
What is the duration of attorney-client privilege?
Until it is waived; survives client’s death
eavesdroppers in A-C privilege
-unknown eavesdroppers DO NOT destroy the privilege
-known or anticipated eavesdroppers DESTROY the privilege
third parties in A-C privilege
privilege extends to:
-essential third parties (accountants, secretaries, translators)
-attorney representatives (persons hired by the attorney)
waiver of A-C privilege
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.
inadvertent waiver
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.
exceptions to A-C privilege
- FUTURE crime or fraud
- suits between attorney and client
- “joint client” exception: two clients hire the same attorney and are involved in litigation between each other)
psychotherapist-patient privilege
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.
exceptions to psychotherapist-patient privilege
- statements made regarding commitment proceedings;
- statements dealing with court-ordered examinations;
- when the medical / mental health condition is part of the claim
- future crime or fraud
2 types of spousal privilege
- spousal testimony privilege
- Spousal (marital) communications privilege
Spousal (marital) communications privilege
*both spouses hold the privilege, and applies in civil and criminal cases.
protects confidential communications made DURING the marriage.
How long does the marital communication privilege last?
always. divorce has no effect, the communications from during the marriage remain protected and survive death of spouse
are observations protected?
majority position: not protected
communications in presence of older children, friends, and relatives
not protected
exceptions to spousal communications privilege
- victim spouses or children: no privilege in criminal cases or intentional tort where the other spouse or the children are victims.
- suits between spouses
- joint spousal participation in a crime
Spousal testimony privilege
*applies to criminal cases only
protects all communications, regardless of confidentiality, both DURING and BEFORE marriage.
*includes testimony, observations, and impressions
the holder of the spousal immunity privilege
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.)
when is the spousal testimony privilege terminated?
upon divorce. a valid marriage is required at the time of the testimony.
exceptions to spousal testimony privilege
- 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.
- 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).
religious privilege
protects confidential communications made from penitent to clergyman in their professional capacity as spiritual advisor.
*either the penitent or clergyman may assert the privilege
political vote privilege
Every person has a privilege to refuse to disclose their vote, unless compelled by state election laws.
identity of informer privilege
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.
5th amendment privilege against self-incrimination
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
incrimination
if the person’s statement cannot incriminate him, the privilege does NOT apply.
-a statement cannot be incriminating if double jeopardy bars prosecution.
waiver of privilege against self-incrimination
when a witness waives, cross-examination is limited to the subject matter about which the privilege was waived.
three types of immunity under 5th amendment privilege against self-incrimination
- transactional immunity
- derivative use immunity
- use immunity
transactional immunity
a witness with transactional immunity cannot be prosecuted for the offense to which their statement refers
if granted, bars assertion of self-incrimination privilege
derivative use immunity
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
use immunity
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
