Privileges Flashcards
Rule 501
privilege
People v. Gionis
assault case, during a divorce proceeding.
E: D said he’d take care of her
A/C privilege does not apply only once retained.
D talked to Lueck (friend and atty) about the divorce and the venue issue
Held: advice must be in the professional capacity of the attorney
no professional relationship
Williams v. DC
civil suit for improper filing; disclosures made in june 2008
E: email from attorney, inadvertently disclosed by D to P
Burden of proof (BOP) is on the proponent of the privilege
held: privilege has been waived
1. no explanation of methods to screen for privilege
2. no sense of scope of discovery
3. no idea is discovery deadlines were an issue
502(b)
the disclosure does not operate as a waiver in a federal or state proceeding if: (1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error.
Blackmon v. State
D charged with attempted snowmobile theft. trooper hears conversation of D&D
Hughes v. Meade
Atty gets typewriter from a person who stole it, the returns it to police
Issue: is the identity of the client confidential
Federal Rule: in re osterhoudt: identity is not privileged
exception: may be privileged if the disclosure would be disclosing confidential communications from the professional relationship
held not confidential. this was not to facilitate legal services
Dietz v. Doe
Issue: is the identity of the person who retained the atty privileged and therefore not subject to disclosure?
generally identity is not privileged but may be privileged if the disclosure would be disclosing confidential communications from the professional relationship.
held: court wanted to know more about why atty had disclosed anything in the first place, because may have waived anyway.
rule: if hired to do something anyone can do, not professional
Jaffee v. Redmond
Officer involved shooting, P claims wrongful death
P want the therapy notes for the officer
TC:: notes are admissible but not produced
Issue: do federal courts recognize a phsycotherapist-patient privilege, and if so, are these documents part of it?
Held: confidential communication between a licensed therapost and their patients in the course of diagnosis and treatment are protected from compelled disclosure
Affirm the public good of mental health
evidentiary benefit of no privilege would be little, would chill discussions
all 50 states & DC have the privilege, must be recognized
AC rule rejected, but Senate note says not disapproval
Scope of privilige covers therapists and social workers
United States v. Auster
Threat to others said to therapist and got charged with extortion.
E: Threats made through therapist-patient privilege
DA argument: Intent; knew it would be disclosed, so not confidential; dangerous patient- violent threats not covered
Held: no reasonable expecation of confidentiality, disclosure is appropriate.
Trammel v. United States
Spousal privilege
D indicted, W will testify against the D after she is given immunity
D/C: Spousal testimonial privilege allows D to block W testimony.
issue: does the spousal testimonial privilege allow one spouse to blovk the voluntary but adverse testimony of the other spouse at trial.
Hawkins: Held that ST privilege means no spouse may testify against the other unless both consent (DV exception)
Held: testifying spouse alone can decide whether to testify. this balances the need for evidence and interests in maritial harmony
Note:
Applies only during marriage
applies in criminal cases where one spouse is charged and bars adverse testimony.
when crime by one spouse against the other spouse no privilege
Maritial communications privilege
protects communications, and those intended to be confidential
privilege belongs to both spouses
survives even after the marriage
communications between spouses are presumptively cofindential
US v. Rakes
H & W own a business, sell after threats. H testifies that sold for profit
E: conversations between H&W during marriage
TC: MC privilege disallowed E
DC arguments:
1. intent; did not intend them to be confidential- appeal said it was a baby- they intended privilege
2. FInancial issues- no
3. crime fraud- they are the victims, they did not communicate to commit a crime
4. voluntary disclosure- burke was not a disclosure of communications
Held: Each argument of DA fails. The privilege should attach
Note:
a) statements futhering crime not privileged as no policy reason to protect
b) privilege survives divorce for communications made during the marriage
United States v. Montgomery
Mail fraud & conspiracy, wife left note on counter.
E: note incriminated husband
Can H block W testimony?
No, spousal testimonial privilege is in hands of testifying spouse
Issue: can the H block the note under maritial communications privilege?
maritial communications- not a subject matter issue but a temporal issue (occured during the marriage)
Held: BOP on the state to show no privilege, because discussions between spouses presumed to be confidential
H intends to call mistress Maria, calls w instead. Maria is now dead, and H has been charged with the murder. can W testify re the phone call and conversation afterwards in their bedroom?
ST Privilege:
1. criminal only
2. testifying spouse may assert privilege
3. Privilege does not survive marriage
4. does ST privilege apply to the phone call? : unrelated to the substance, so privilege could apply to both
5. Bedroom conversation
6. what is the rationale- maritial harmony
Maritial Communications privilege:
1. applies to both civil and criminal
2. both may assert privilege
3. survives marriage
4. apply to the phone call, if W testifying; w probably yes because speaking to H, presumed to be privileged; H probably not because intended to speak to Maria
5. bedroom conversation- yes, private
6. rationale is protect marital privacy and encourage free communication between spouses
