Privileges Flashcards
PCP Rule
Federal Civil Cases (diversity actions)
Privileges, Competence, and Presumptions of a witness are determined by state law in Federal diversity actions
Privileges in General
Only CL privileges are recognized in federal courts
Federal Question cases and Federal Criminal Cases
What Rules of Privileges Apply
Common law privileges apply
Except for Constitutional, statutory, or other state rules there is NO PRIVILEGE to do the following
Refuse to be a witness
Refuse to disclose any matter
Refuse to produce a writing
Confidential Communications recognized by Fed Courts and all 50 states (4)
- Attorney-client
- psychotherapist patient
- clergy
- husband wife - spousal and marital
lawyer client privilege
client is holder
prevent others from disclosure of confidential communications made for the purpose of seeking legal advise.
Observations and prior existing documents are not privileged
Unknown Eavesdroppers and Attorney Client Privilege
unknown eavesdroppers do not destroy privilege
known or anticipated eavesdroppers will destroy privilege.
Who is a lawyer
A person authorized or reasonably believed to be authorized by the client to engage in the practice of law.
Waiver of attorney client priviledge
Failure to assert in a timely manner = waiver
Waiver will operate as a partial waiver - only to allow reasonable inquiry by opposing party.
Blanket or total waiver will result only if intentional and covers same subject matter.
Inadvertent Waiver - where court will not a waiver if
- Client did not intend to waive privilege
- Client took reasonable steps to protect information
- Client took timely steps to remedy the waiver
Where there is no Attorney client privilege
- Future crime or fraud
- suits between attorney and client
- joint client exception where joint clients subsequently sue each other
Client Identity and Privilege
Identity is not privileged unless disclosure will disclose other privileged matters
Fee arrangements and privilege
not privileged
Duration of Attorney Client Privilege
From initial consultation to beyond death of client
Doctor Patient vs Psychotherapist Patient Privileges
Federal rules do not recognize Doctor Patient - must be state law created
Psychotherapist patient can be asserted through the common law
Exceptions to Psychotherapist patient privilege
- Statements made during commitment proceedings
- Statements dealing with court ordered examinations
- When medical condition is in issue
- Future crimes or fraud.
Spousal Testimonial Privilege
Protects all communication regardless of confidentiality during and before marriage. Includes testimony, observations, and impressions.
Held at CL by party spouse
Witness Spouse holds privilege under federal rules
Applicability of Spousal Testimonial Privilege
Applies only in criminal cases.
Lost upon divorce.
Except in suits between spouses and or involving abuse of spouse or child
Marital Communication Privilege
both are holders of privilege.
Applies in civil and criminal cases
protects only confidential communications between spouses only during marriage.
Exceptions to Marital Communications Privilege
Crimes committed against spouse or children
Divorce proceedings or adversarial suits between spouses
joint participant exception - spouses participated in criminal activities
Executive Privilege
Court created privilege
courts decide whether privilege applies although there is an absolute privilege to refuse to disclose national security information
Privilege against self incrimination
Applies only to testimonial evidence only
Does not apply to real and demonstrative evidence
prosecutorial comment on refusal of accused to take the stand
may not comment on defendants refusal to take the stand or exercise of the right
Testimony at a preliminary hearing and 5th Amendment right to refuse to testify at trial
Such testimony does not waive the privilege not to take the stand at trial. Prosecutor may not comment on it.
