Privileges

Question 0

PCP Rule

Answer 0

Federal Civil Cases (diversity actions)

Privileges, Competence, and Presumptions of a witness are determined by state law in Federal diversity actions

Question 1

Privileges in General

Answer 1

Only CL privileges are recognized in federal courts

Question 2

Federal Question cases and Federal Criminal Cases

What Rules of Privileges Apply

Answer 2

Common law privileges apply

Question 3

Except for Constitutional, statutory, or other state rules there is NO PRIVILEGE to do the following

Answer 3

Refuse to be a witness
Refuse to disclose any matter
Refuse to produce a writing

Question 4

Confidential Communications recognized by Fed Courts and all 50 states (4)

Answer 4

1. Attorney-client
2. psychotherapist patient
3. clergy
4. husband wife - spousal and marital

Question 5

lawyer client privilege

Answer 5

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

Question 6

Unknown Eavesdroppers and Attorney Client Privilege

Answer 6

unknown eavesdroppers do not destroy privilege

known or anticipated eavesdroppers will destroy privilege.

Question 7

Who is a lawyer

Answer 7

A person authorized or reasonably believed to be authorized by the client to engage in the practice of law.

Question 8

Waiver of attorney client priviledge

Answer 8

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.

Question 9

Inadvertent Waiver - where court will not a waiver if

Answer 9

1. Client did not intend to waive privilege
2. Client took reasonable steps to protect information
3. Client took timely steps to remedy the waiver

Question 10

Where there is no Attorney client privilege

Answer 10

1. Future crime or fraud
2. suits between attorney and client
3. joint client exception where joint clients subsequently sue each other

Question 11

Client Identity and Privilege

Answer 11

Identity is not privileged unless disclosure will disclose other privileged matters

Question 12

Fee arrangements and privilege

Answer 12

not privileged

Question 13

Duration of Attorney Client Privilege

Answer 13

From initial consultation to beyond death of client

Question 14

Doctor Patient vs Psychotherapist Patient Privileges

Answer 14

Federal rules do not recognize Doctor Patient - must be state law created

Psychotherapist patient can be asserted through the common law

Question 15

Exceptions to Psychotherapist patient privilege

Answer 15

1. Statements made during commitment proceedings
2. Statements dealing with court ordered examinations
3. When medical condition is in issue
4. Future crimes or fraud.

Question 16

Spousal Testimonial Privilege

Answer 16

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

Question 17

Applicability of Spousal Testimonial Privilege

Answer 17

Applies only in criminal cases.

Lost upon divorce.

Except in suits between spouses and or involving abuse of spouse or child

Question 18

Marital Communication Privilege

Answer 18

both are holders of privilege.

Applies in civil and criminal cases

protects only confidential communications between spouses only during marriage.

Question 19

Exceptions to Marital Communications Privilege

Answer 19

Crimes committed against spouse or children

Divorce proceedings or adversarial suits between spouses

joint participant exception - spouses participated in criminal activities

Question 20

Executive Privilege

Answer 20

Court created privilege

courts decide whether privilege applies although there is an absolute privilege to refuse to disclose national security information

Question 21

Privilege against self incrimination

Answer 21

Applies only to testimonial evidence only

Does not apply to real and demonstrative evidence

Question 22

prosecutorial comment on refusal of accused to take the stand

Answer 22

may not comment on defendants refusal to take the stand or exercise of the right

Question 23

Testimony at a preliminary hearing and 5th Amendment right to refuse to testify at trial

Answer 23

Such testimony does not waive the privilege not to take the stand at trial. Prosecutor may not comment on it.

Question 24

Transactional Immunity

Answer 24

Prevents being prosecuted for any crimes described during testimony

Question 25

Use Immunity

Answer 25

Waiver of 5th Amendment privilege. Prohibits use of any testimony or evidence derived therefrom against the defendant

Question 26

Exercise of the Privilege

Civil vs Criminal Cases

Answer 26

Cannot comment in criminal case

may comment on it during a civil case