Privileges Flashcards
Elements required to invoke the Attorney-Client Privilege?
Confidential communication
Between attorney and client
Predominantly legal advice
Where does the ACP not apply? (4)
Future/ongoing crime or fraud
At issue exception (when client affirmatively puts the communication in issue as part of a claim or defense)
Disputes between Attorney and Client
Joint client representation
What are the elements of the Physician/Psychiatrist-Patient Privilege?
Patient must be seeking treatment
Information acquired must be confidential and necessary to facilitate professional treatment
How do Federal Courts limit the Physician/Psychiatrist-Patient Privilege?
Only extends to Psychiatrists
How can the Physician/Psychiatrist-Patient Privilege be waived?
If patient sues (Patient Litigation Exception)
What is the definition of spousal immunity privilege?
One spouse can’t be forced to give adverse testimony against the other in a criminal case.
What are the requirements of the spousal immunity privilege? (3)
Valid marriage at the time of trial
Holder of the privilege is the witness spouse, not the party spouse
Applies only in criminal cases
What is the definition of the Confidential Marital Communications Privilege?
A husband or wife shall not be required or, without the consent of the other, shall not be allowed to disclose a confidential communication made by one to the other during marriage.
What are the requirements of the Confidential Marital Communications Privilege?
Married at the time of the protected communication (privilege outlasts marriage)
Protects only confidences, not all testimony
Both spouses hold privilege
Applies to both civil and criminal cases
What are the 3 situations in which state evidence law will apply in federal court IF state substantive law applies (as in the typical diversity case)?
Presumptions and burdens of proof
Competency of witnesses (e.g., state dead man statute)
Privileges
Federal privilege law in ________ or in ________ (types of cases) shall be governed by the principles of common law as they may be interpreted by the courts of the US in light of reason and experience.
Federal Questions
Federal Criminal Cases
P sues D in Fed. Court for breach of k made and to be performed in NY. Federal SMJ is founded on diversity. P raises a presumption. As to the presumption, what law applies? CL? Federal CL? Federal statutory law? State law?
State law
P sues D in Fed. Court for breach of k made and to be performed in NY. Federal SMJ is founded on diversity. P raises a rule of competency. As to the rule of competency, what law applies? CL? Federal CL? Federal statutory law? State law?
State law
P sues D in Fed. Court for breach of k made and to be performed in NY. Federal SMJ is founded on diversity. P raises an objection to D’s leading question. As to the rule of leading question, what law applies? CL? Federal CL? Federal statutory law? State law?
Federal statutory law
P sues D in Fed. Court for breach of k made and to be performed in NY. Federal SMJ is founded on diversity. P raises an objection to privilege. As to the rule of privilege, what law applies? CL? Federal CL? Federal statutory law? State law?
State law
