Privileges Flashcards
FRE federal privileges
FRE–recognizes all privileges that were recognized under federal common law
1) Attorney-client (only one explicitly in FRE)
2) Psychiatrist/psychotherapist privilege
3) Clerical/clergy-penitent privilege
4) Marital privileges (2 types: marital communications AND spousal immunity
NOT doctor-patient (not common law–but recog. by statute in all 50 states, and Erie applies in diversity)
Rule 501
“The common law–as interpreted by the United State courts in the light of reason and experience [i.e. fed common law] governs a claim of privilege unless [the Constitution, a fed. statute, or SCOTUS decision] provides otherwise
But in a civil case, state law governs privilege regarding a claim or defense for which state law applies[.][i.e. diversity jx]
General Rule re: Privilege
Unless a privilege applies, no right to refuse to 1) be a witness; 2) disclose any matter; 3) refuse to produce an object or writing
Rule 502
Attorney-Client Privilege
Attorney-Client Privilege
1) Communications
2) In confidence
3) Between privileged persons
4) For the purpose of obtaining legal advice
Protected as Atty-Client Communications
-Oral statements
-Written Statements
-Communicative Acts (meant to communicate info–ex. roll up sleeve to show tattoo
Would disclosure reveal the content of atty-client communication?
Is fact known only through priv. comm?
Not protected as communications
-Observations (saw tattoo because defendant had short sleeves)
-Facts within knowledge of the witness (“was the light red,” asked of client)
-Client ID, fact consulted, fee, etc, UNLESS reveal itself incriminating (saw tax fraud lawyer before even arrested)
Attorney-client “in confidence” exceptions
Non lawyer necessary for communication
Person who needs to know–ex. translator, essential employee
Common interest alone NOT enough
In confidence
Q–reasonable expectation of privacy?
Lawyer re: Atty-Client
Person authorized OR reasonably believed to be authorized to be able to practice law in any state or nation (ex. if defendant honestly believed person in suit in courthouse was lawyer)
Partial Waiver
If fail to assert privilege w/in reasonable time, partial waiver to extent necessary to allow reasonable scrutiny of disclosed info
Atty Requested visit to doctor
NOT protected by doctor-patient (not for purpose of medical treatment)
IS PROTECTED by attorney-client–stepping into shoes of client (same as “tell your story to my paralegal, she’ll give it to me”)
Blanket Waiver
ONLY IF
1) Intentional AND
2) Subject matter of disclosed and undisclosed info the same
Inadvertent Waiver/Non-Waiver
Inadvertent waiver = not waiver IF
1) No intent to waive
2) Took reasonable steps to protect info
AND
3) Took timely steps to remedy
Attorney-Client Exceptions
Exception = never any privilege
1) Crime-Fraud
2) Suits Between Atty and Client
3) Co-Clients
4) Fiduciary Exception
Crime-Fraud Exception
No privilege if
1) Consulting lawyer for purpose of committing/aiding crime/fraud
OR
2) Use lawyer’s services to commit/assist crime/fraud
MUST be contemplated or ongoing
Co-Clients and Atty-Client
No privilege if joint representation AND subsequent suit re: subject matter
BUT
Either client can assert privilege v. 3d party, even if other waives
Work-Product Doctrine
1) Tangible things
2) Produced by/at direction of party
3) In anticipation of litigation
Work-Product Exception
Other party MUST SHOW
1) Substantial hardship
AND
2)No other way of obtaining evidence
BUT mental impressions always protected
Doctor/Physician-Patient Privilege
Does not exist under the FRE (but all 50 states have by statute)
1) Confidential communications
2) Between physician (person authorized to practice medicine) and patient
3) Patient seeking diagnosis/treatment for a medical condition (ex. if told to go by attorney–atty-client priv, but not doctor/patient)
Psychotherapist-Patient Privilege
Unlike physician-patient, does exist under fed. common law and the FRE
1)Confidential communications
2) Between psychotherapist and patient
3) For the purposes of seeking diagnosis/treatment for a mental or emotional condition (includes addiction)
Psychotherapist
1) Person authorized to practice medicine or r. believed by patient to be, in any state AND engaged in treatment/diagnosis of mental or emotional condition
OR
2) Person licensed or certified as a “psychologist” under state law AND engaged in treatment/diagnosis of mental/emotional condition
“Psychologist/psychotherapist” very broadly defined–includes licensed social workers, psychologists, psychiatrists, mental health specialists, marriage counselors
DOES NOT include educational/vocational consultants
Exceptions to doctor/psychotherapist privilege
1) Statements made re: commitment proceedings
2) Statements re: court ordered examinations
3) Future crime/fraud (applies to basically every priv.)
4) When condition is part of claim (party waived by putting at issue–ex. malpractice, personal injury)
Confidentiality re: doctor/psychotherapist privilege
Not intended to be disclosed to third persons, EXCEPT
1) Persons present to further the interest of the patient in the consultation/exam
2) Persons reasonably necessary for transmission
OR
3) Persons participating in the diagnosis and treatment under the direction of the physician/psychotherapist (includes patient family, vs. atty-client)
Types of Marital Privilege
1) Spousal/Marital Communications Privilege(confidential between spouses during marriage, civil or crim)
2) Spousal Immunity Privilege (all communications and observations of spouse, criminal trial)
Spousal Communications Privilege
-Protects confidential communications between spouses during marriage
-Held by both spouses
-Has to be during marriage but if so, not terminated by divorce/death
Confidentiality re: Martial Privileges
Only applies to spousal communications privilege
-Made privately to spouse AND not intended to be disclosed to someone else
-Majority rule–does NOT protect observations (ex. walked in w/ bloody knife, used drugs)
-Can be destroyed by presence of older children old enough to report/understand convo
Exceptions to Spousal Communications Privilege
1) “Destructive of the family unit”/criminal or intentional tort AND victim is spouse or children (although still no in some jx)
2) Adverse legal proceedings between spouses (ex. divorce)
3) Joint Spousal Participation in Crime (even if not indicted as co-conspirator)(most jurisdictions)
Holder of Spousal Communications Privilege
Both spouses, in civil and criminal proceedings
Holder of Spousal Immunity/Testimony Privilege
Federal rules: witness spouse (can’t be forced but can testify if want to)
Common law: party-spouse (even if witness spouse wants to)
Spousal Immunity/Spousal Testimony/Spousal Witness Privilege
-General rule: a testifying spouse may refuse to testify against their current spouse in a criminal case
ONLY applies in criminal cases
Applies to communications, observations, impressions EVEN IF not confidential–basically everything (idea–promote marital harmony)
Federal law–held by witness spouse (CL = party-spouse)
Applies to events before AND during marriage
MUST be validly married at time of testimony –divorce/invalid marriage = N/A, entire privilege vanishes
Exceptions to Spousal Testimony/Witness Privilege
-Sometimes, if charged with crime against other spouse, if charged with crime re: a child of either spouse (i.e. “destructive of family unit)–but not all jx allow
Spousal Communications v. Spousal Testimony Differences
Who holds, what cases, what info, timespan, effect of divorce
S. Communications–civil and crim.
S. Testimony–only crim
S. Communications = both hold
S. Testimony = witness-spouse (unless CL)
S. Communications–confidential, during marriage
S. Testimony–anything, before or during marriage
S. Communications–if made during marriage, survives divorce/death
S. Testimony–vanishes if no valid marriage at time testifying
Privileges not to disclose certain info (not relationship-based)
1) Own political vote if secret ballot (exception: illegal vote, compelled by state election law)
2) Trade secrets (exception: conceal fraud, work injustice)
3) Secrets of state, as recognized by U.S. federal law
4) Identity of Informer (exception: prior disclosure by gov. or informer, calling as witness, have relevant/material information in case where public entity party)
5) Executive Privilege
6) 5th A Right v. Self-Incrimination
Trade Secrets Privilege
Personal privilege re own trade secret–can be asserted by self OR agent OR employee
Can refuse to testify AND prevent others from testifying
Exception: conceal fraud, work injustice
Clergy-Penitent Privilege
1) Confidential communications
2) From penitent to clergyman
3) In professional capacity as spiritual advisor
Not just re: priests–includes rabbis, imams, etc.
Clergyman OR penitent can assert (unclear who holds, varies by state)
No exceptions
Identity of Informer Privilege
-Can ONLY be asserted by government (not informer)
Government (fed, state, or subdivision) can refuse to disclose identity of person funneling information vital and relevant to law enforcement (includes legislative committee or internal investigations)
Exceptions:
1) ID already disclosed by informer or government
2) Informer appears as gov. witness
3) (Depends) Informer can give relevant testimony in criminal proceeding OR relevant to material issue in civil case where public entity party
Executive Privilege
Court created–U.S. v. Nixon
Re: communications between president and advisors
Absolute if re: national security
Qualified if not re: national security–can be forced to disclose if show special need such as criminal prosecution
Privilege v. Self-Incrimination
Fifth Amendment right to not incriminate self–applies to defendants, witnesses, etc.
Only if exposing self to punishment
Right not to testify in criminal case not waived if testify at preliminary hearing
Must be testimonial–N/A re: physical or demonstrative evidence (ex. knife owned, DNA/hair, “read this statement while in a lineup”)
Incrimination re: 5th Amendment
Incrimination = exposure to prosecution OR enhanced punishment
N/A if civil trial
N/A if double jeopardy protects
N/A if transactional or derivative use immunity
Transactional Immunity
-Can’t be prosecuted for anything discussed
-Bars assertion of 5th A
Use/Derivative Use Immunity
-CAN’T be prosecuted using the statement or derivatives but CAN be prosecuted for crimes discussed if independent source
-Bars assertion of 5th A
Burden on prosecution to show not using testimony
Use Immunity
Kaplan uses it to refer to where CAN’T be prosecuted using testimony but CAN be prosecuted using derivatives from testimony/statement (Crim Pro prof. uses term it to refer to derivative use immunity as well)
-DOES NOT bar assertion of 5th
