Privileges

Question 1

FRE federal privileges

Answer 1

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)

Question 2

Rule 501

Answer 2

“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]

Question 3

General Rule re: Privilege

Answer 3

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

Question 4

Rule 502

Answer 4

Attorney-Client Privilege

Question 5

Attorney-Client Privilege

Answer 5

1) Communications
2) In confidence
3) Between privileged persons
4) For the purpose of obtaining legal advice

Question 6

Protected as Atty-Client Communications

Answer 6

-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?

Question 7

Not protected as communications

Answer 7

-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)

Question 8

Attorney-client “in confidence” exceptions

Answer 8

Non lawyer necessary for communication

Person who needs to know–ex. translator, essential employee

Common interest alone NOT enough

Question 9

In confidence

Answer 9

Q–reasonable expectation of privacy?

Question 10

Lawyer re: Atty-Client

Answer 10

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)

Question 11

Partial Waiver

Answer 11

If fail to assert privilege w/in reasonable time, partial waiver to extent necessary to allow reasonable scrutiny of disclosed info

Question 12

Atty Requested visit to doctor

Answer 12

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”)

Question 13

Blanket Waiver

Answer 13

ONLY IF

1) Intentional AND
2) Subject matter of disclosed and undisclosed info the same

Question 14

Inadvertent Waiver/Non-Waiver

Answer 14

Inadvertent waiver = not waiver IF

1) No intent to waive
2) Took reasonable steps to protect info
AND
3) Took timely steps to remedy

Question 15

Attorney-Client Exceptions

Answer 15

Exception = never any privilege

1) Crime-Fraud
2) Suits Between Atty and Client
3) Co-Clients
4) Fiduciary Exception

Question 16

Crime-Fraud Exception

Answer 16

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

Question 17

Co-Clients and Atty-Client

Answer 17

No privilege if joint representation AND subsequent suit re: subject matter

BUT

Either client can assert privilege v. 3d party, even if other waives

Question 18

Work-Product Doctrine

Answer 18

1) Tangible things

2) Produced by/at direction of party

3) In anticipation of litigation

Question 19

Work-Product Exception

Answer 19

Other party MUST SHOW
1) Substantial hardship
AND
2)No other way of obtaining evidence

BUT mental impressions always protected

Question 20

Doctor/Physician-Patient Privilege

Answer 20

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)

Question 21

Psychotherapist-Patient Privilege

Answer 21

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)

Question 22

Psychotherapist

Answer 22

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

Question 23

Exceptions to doctor/psychotherapist privilege

Answer 23

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)

Question 24

Confidentiality re: doctor/psychotherapist privilege

Answer 24

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)

Question 25

Types of Marital Privilege

Answer 25

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)

Question 26

Spousal Communications Privilege

Answer 26

-Protects confidential communications between spouses during marriage

-Held by both spouses

-Has to be during marriage but if so, not terminated by divorce/death

Question 27

Confidentiality re: Martial Privileges

Answer 27

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

Question 28

Exceptions to Spousal Communications Privilege

Answer 28

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)

Question 29

Holder of Spousal Communications Privilege

Answer 29

Both spouses, in civil and criminal proceedings

Question 30

Holder of Spousal Immunity/Testimony Privilege

Answer 30

Federal rules: witness spouse (can’t be forced but can testify if want to)

Common law: party-spouse (even if witness spouse wants to)

Question 31

Spousal Immunity/Spousal Testimony/Spousal Witness Privilege

Answer 31

-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

Question 32

Exceptions to Spousal Testimony/Witness Privilege

Answer 32

-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

Question 33

Spousal Communications v. Spousal Testimony Differences

Answer 33

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

Question 34

Privileges not to disclose certain info (not relationship-based)

Answer 34

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

Question 35

Trade Secrets Privilege

Answer 35

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

Question 36

Clergy-Penitent Privilege

Answer 36

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

Question 37

Identity of Informer Privilege

Answer 37

-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

Question 38

Executive Privilege

Answer 38

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

Question 39

Privilege v. Self-Incrimination

Answer 39

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”)

Question 40

Incrimination re: 5th Amendment

Answer 40

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

Question 41

Transactional Immunity

Answer 41

-Can’t be prosecuted for anything discussed
-Bars assertion of 5th A

Question 42

Use/Derivative Use Immunity

Answer 42

-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

Question 43

Use Immunity

Answer 43

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