Privileges

Question 1

In a civil case (diversity actions), the privilege of a witness is determined by ?

Answer 1

State law

Question 2

In federal question cases and criminal cases, the privilege of a witness is determined by

Answer 2

federal common law

Question 3

except as provided by statute, no person has a privilege to

Answer 3

1. refuse to be a witness
2. refuse to disclose a matter
3. refuse to produce any object or writing

Question 4

There are four Confidential Communication privileges recognized in federal courts and in all 50 states:
(4)

Answer 4

1. attorney client
2. psychotherapist client
3. clergy - penament
4. husband -wife

Question 5

Six Key Privilege Issues

Answer 5

(1) protected relationship
(2) communication
(3) confidentiality
(4) holder
(5) waiver
(6) exceptions

Question 6

Attorney-Client Privilege
Holder?
What is protected?

Answer 6

1. communications made for the purpose of seeking professional legal advice or services
2. work product prepared in anticipation of litigation
   ≠observations

holder = client

Question 7

Who does attorney-client extend to?

Answer 7

anyone who is furthering the representation (anyone furthering the litigation, a doctor physically making exam)

Question 8

How is attorney-client destroyed?

Answer 8

When you are aware that someone is listening to the conversation

Question 9

Who is the client in attorney-client

Answer 9

anyone, entity, who is seeking legal services or is consulting with the possibility of obtaining legal services

Question 10

Who is a lawyer in attorney-client?

Answer 10

1. anyone who is reasonably believed by the client to engage in the practice of law

Question 11

Who can claim privilege in attorney-client?

Answer 11

The client or the lawyer on the client’s behalf

Question 12

Failure to assert a privilege generally results in

Answer 12

a waiver to whatever information was objecitonable

Question 13

When is there no Attorney Client Privilege?

3

Answer 13

1. Future crime and fraud
2. when client sues attorney
3. “Joint Client” exception: Two clients hire the same attorney and are then involved in litigation between each other. Result: Their earlier communications are not privileged absent an agreement otherwise.

Question 14

Are fee arrangements privileged?

Answer 14

no

Question 15

Duration of the attorney client privilege?

Answer 15

beyond the client’s death

Question 16

Doctor-patient privilege only exist through

Answer 16

statutes

-need to be in federal court based on diversity

Question 17

Doctor-patient privilege extends to?

Answer 17

Licensed social worker, marriage counselors, psychotherapist

≠educational or vocational counselors

Question 18

Doctor-patient privilege applies to/when?

Answer 18

The privilege applies to protect confidential communications between a licensed doctor and a patient
+
patient is seeking medical help

Question 19

When does Doctor-patient privilege not apply?

Answer 19

1. personal injury

2. malpractice suits against doctor

Question 20

Marital Communications Privilege can be asserted by?

Answer 20

Either spouse, both are the holders

Question 21

Marital Communications Privilege protects?

Answer 21

those conversations by the parties intended to be confidential

ONLY DURING MARRIAGE

≠observations

Question 22

When is marital communication privilege terminated?

Answer 22

it never terminates

Question 23

Where does marital communication privilege not exist?

3

Answer 23

1. crimes against one spouse v another, or against a child
2. divorce proceedings
3. joint participation in a crime

Question 24

What is spousal immunity

Answer 24

Protects all communications, regardless of confidentiality, both during and before marriage; includes testimony, observations, and impressions. A spouse cannot be compelled to testify about virtually anything

Question 25

Who can assert spousal immunity?

Answer 25

in fed court, the spouse who is testifying but they do not have to

Question 26

What are the requirements for spousal immunity

Answer 26

1. a valid marriage
2. criminal cases
3. No divorce

Question 27

Religious privilege Protects confidential communications made:

Answer 27

from pennant to clergyman
-under conditions of confidentiality
With intent to give spiritual guidance

Question 28

Fifth Amendment Privilege Against Self-Incrimination applies only to?

Answer 28

Testimony on the stand

-goes to the stand and does not talk

Question 29

Examples where Fifth Amendment privilege does NOT apply

Answer 29

Blood, hair, handwriting samples, fingerprints, lineups, photo IDs; scars, tattoos; put on a hat, item of clothing; bloody glove, “read this.”

Question 30

Can testimony given at a preliminary hearing waive 5th amendment rights at trial?

Answer 30

No, can’t be compelled

Question 31

May the prosecutor comment on defendant’s 5th amendment privilege at trial?

Answer 31

no

Question 32

Witnesses or parties in civil cases must assert the 5th amendment when?

Answer 32

When on the state

Question 33

a witness with Transactional Immunity

Answer 33

cannot be prosecuted for the underlying offense

Question 34

a witness with Use Immunity

Answer 34

cannot have their testimony used against them but can still be charged with the underlying offense

Question 35

when does someone waive 5th amendment?

Answer 35

Occurs expressly whenever the holder of the privilege voluntarily discloses the privileged info.

Question 36

When can you comment on someone asserting their 5th amendment right?

Answer 36

Civil cases

≠criminal cases