Privileges Flashcards
What are the 4 common law privileges?
- Attorney-Client
- Physician and Pscyhotherapist-Patient
- Spousal
- Clergy-Penitent
Attorney-Client Privilege
- 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
Who holds the attorney-client privilege?
Client
What is protected in confidential communications?
Communications are protected
Observations ARE NOT protected
Third parties
A/C priv extends to essential 3rd parties
Who is an essential 3rd party?
anyone who is furthering some purpose of the A/C relationship
A/C Priv and easedroppers
Unknown eavesdropper DOES NOT destroy priv
Known or Anticipated DOES destroy priv
Waiver of A/C Priv
- 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
Situations where there is no A/C Priv
- Future crime and fraud
- Suits between attorney and client
Duration of A/C Priv
From initial contact until beyond client’s death
Doctor-Patient Privilege
Statutory privilege that most states have
2 Types of Husband/Wife Privilege
- Marital Communication
- Spousal Immunity
When does the Marital Communications Privilege apply?
Criminal and civil cases
How long does the Marital Communications Privilege last?
- Survives divorces
- Survives death of spouse
What does the Marital Communications Privilege protect?
Confidential communications made during the marriage (communications the parties intended to be confidential)
Who holds the Marital Communications Privilege?
Either spouse
Who can waive the Marital Communications Privilege?
Only by both spouses together
When does the Spousal Testimony Privilege apply?
Criminal cases
What does the Spousal Testimony Privilege protect?
All communications made before or during a valid marriage
How long does the Spousal Testimony Privilege last?
Only during the marriage;
the privilege terminates upon divorce or annulement
Who holds the Spousal Testimony Privilege?
- Under common law = the party spouse
- In federal courts = witness spouse
Who can waive the Spousal Testimony Privilege?
The witness-spouse
Exception to spousal privileges
spousal communication privilege NOR the spousal testimony privilege will cover communications or acts:
- in furtherance of a future crime or fraud; or
- destructive of the family unit.
- Suits between spouses
- Suits in which spouses are co-defendants
What is the Clergy-Penitent Privilege?
- 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
Fifth Amendment Privilege Against Self-Incrimination
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
2 Types of Immunity
- Transactional Immunity
- Use Immunity
Transactional Immunity
- A witness with transactional immunity cannot be prosecuted for the underlying offense
- Witness cannot be prosecuted for any crime referred to in the testimony
Use Immunity
- 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
What does the Psychotherapist/Patient Privilege protect?
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
When does the Psychotherapist/Patient Privilege apply?
Criminal and civil
Who may waive the Psychotherapist/Patient Privilege?
Patient/client
