Privileges

Question 1

What are the 4 common law privileges?

Answer 1

1. Attorney-Client
2. Physician and Pscyhotherapist-Patient
3. Spousal
4. Clergy-Penitent

Question 2

Attorney-Client Privilege

Answer 2

• A client has a privilege to refuse to disclose,
• and to prevent any other person from disclosing,
• confidential communications
• made for the purpose of obtaining legal services/advise

Question 3

Who holds the attorney-client privilege?

Answer 3

Client

Question 4

What is protected in confidential communications?

Answer 4

Communications are protected

Observations ARE NOT protected

Question 5

Third parties

Answer 5

A/C priv extends to essential 3rd parties

Question 6

Who is an essential 3rd party?

Answer 6

anyone who is furthering some purpose of the A/C relationship

Question 7

A/C Priv and easedroppers

Answer 7

Unknown eavesdropper DOES NOT destroy priv

Known or Anticipated DOES destroy priv

Question 8

Waiver of A/C Priv

Answer 8

• Failure to assert a priviege in a timely manner usually results in waiver
• Partial = Privilege is waived only to the extent to permit reasonable scrutiny by the opposing party
• Total waiver, only if:
  
  • Waiver was intentional; and
  • Both disclosed and undisclosed information concerned the same subject matter

Question 9

Situations where there is no A/C Priv

Answer 9

1. Future crime and fraud
2. Suits between attorney and client

Question 10

Duration of A/C Priv

Answer 10

From initial contact until beyond client’s death

Question 11

Doctor-Patient Privilege

Answer 11

Statutory privilege that most states have

Question 12

2 Types of Husband/Wife Privilege

Answer 12

1. Marital Communication
2. Spousal Immunity

Question 13

When does the Marital Communications Privilege apply?

Answer 13

Criminal and civil cases

Question 14

How long does the Marital Communications Privilege last?

Answer 14

• Survives divorces
• Survives death of spouse

Question 15

What does the Marital Communications Privilege protect?

Answer 15

Confidential communications made during the marriage (communications the parties intended to be confidential)

Question 16

Who holds the Marital Communications Privilege?

Answer 16

Either spouse

Question 17

Who can waive the Marital Communications Privilege?

Answer 17

Only by both spouses together

Question 18

When does the Spousal Testimony Privilege apply?

Answer 18

Criminal cases

Question 19

What does the Spousal Testimony Privilege protect?

Answer 19

All communications made before or during a valid marriage

Question 20

How long does the Spousal Testimony Privilege last?

Answer 20

Only during the marriage;

the privilege terminates upon divorce or annulement

Question 21

Who holds the Spousal Testimony Privilege?

Answer 21

• Under common law = the party spouse
• In federal courts = witness spouse

Question 22

Who can waive the Spousal Testimony Privilege?

Answer 22

The witness-spouse

Question 23

Exception to spousal privileges

Answer 23

spousal communication privilege NOR the spousal testimony privilege will cover communications or acts:

1. in furtherance of a future crime or fraud; or
2. destructive of the family unit.
3. Suits between spouses
4. Suits in which spouses are co-defendants

Question 24

What is the Clergy-Penitent Privilege?

Answer 24

• A person has a privilege to refuse to disclose,
• and to prevent another from disclosing,
• a confidential communication
• made by the person to a clergyman
• in his professional character as spiritual adviser

Question 25

Fifth Amendment Privilege Against Self-Incrimination

Answer 25

The accused in a criminal trial has a Fifth Amendment privilege to refuse to take the stand.

*Where immunity has been granted, no 5th Amendment privilege exists

Question 26

2 Types of Immunity

Answer 26

1. Transactional Immunity
2. Use Immunity

Question 27

Transactional Immunity

Answer 27

• A witness with transactional immunity cannot be prosecuted for the underlying offense
• Witness cannot be prosecuted for any crime referred to in the testimony

Question 28

Use Immunity

Answer 28

• Statements by the witness may not be used against the them, but the prosecution does not agree that it will never prosecute.
• Person may be prosecution upon untainted, independent evidence

Question 29

What does the Psychotherapist/Patient Privilege protect?

Answer 29

Protects communication that patient intends to be confidential;

made to facilitate therapy or social work

*confidential communations made for the purpose of diagnosis or treatment of physical, mental, or emotional condition

Question 30

When does the Psychotherapist/Patient Privilege apply?

Answer 30

Criminal and civil

Question 31

Who may waive the Psychotherapist/Patient Privilege?

Answer 31

Patient/client