Privileges Flashcards
In a civil case (diversity actions), the privilege of a witness is determined by ?
State law
In federal question cases and criminal cases, the privilege of a witness is determined by
federal common law
except as provided by statute, no person has a privilege to
- refuse to be a witness
- refuse to disclose a matter
- refuse to produce any object or writing
There are four Confidential Communication privileges recognized in federal courts and in all 50 states:
(4)
- attorney client
- psychotherapist client
- clergy - penament
- husband -wife
Six Key Privilege Issues
(1) protected relationship
(2) communication
(3) confidentiality
(4) holder
(5) waiver
(6) exceptions
Attorney-Client Privilege
Holder?
What is protected?
- communications made for the purpose of seeking professional legal advice or services
- work product prepared in anticipation of litigation
≠observations
holder = client
Who does attorney-client extend to?
anyone who is furthering the representation (anyone furthering the litigation, a doctor physically making exam)
How is attorney-client destroyed?
When you are aware that someone is listening to the conversation
Who is the client in attorney-client
anyone, entity, who is seeking legal services or is consulting with the possibility of obtaining legal services
Who is a lawyer in attorney-client?
- anyone who is reasonably believed by the client to engage in the practice of law
Who can claim privilege in attorney-client?
The client or the lawyer on the client’s behalf
Failure to assert a privilege generally results in
a waiver to whatever information was objecitonable
When is there no Attorney Client Privilege?
3
- Future crime and fraud
- when client sues attorney
- “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.
Are fee arrangements privileged?
no
Duration of the attorney client privilege?
beyond the client’s death
Doctor-patient privilege only exist through
statutes
-need to be in federal court based on diversity
Doctor-patient privilege extends to?
Licensed social worker, marriage counselors, psychotherapist
≠educational or vocational counselors
Doctor-patient privilege applies to/when?
The privilege applies to protect confidential communications between a licensed doctor and a patient
+
patient is seeking medical help
When does Doctor-patient privilege not apply?
- personal injury
2. malpractice suits against doctor
Marital Communications Privilege can be asserted by?
Either spouse, both are the holders
Marital Communications Privilege protects?
those conversations by the parties intended to be confidential
ONLY DURING MARRIAGE
≠observations
When is marital communication privilege terminated?
it never terminates
Where does marital communication privilege not exist?
3
- crimes against one spouse v another, or against a child
- divorce proceedings
- joint participation in a crime
What is spousal immunity
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
Who can assert spousal immunity?
in fed court, the spouse who is testifying but they do not have to
What are the requirements for spousal immunity
- a valid marriage
- criminal cases
- No divorce
Religious privilege Protects confidential communications made:
from pennant to clergyman
-under conditions of confidentiality
With intent to give spiritual guidance
Fifth Amendment Privilege Against Self-Incrimination applies only to?
Testimony on the stand
-goes to the stand and does not talk
Examples where Fifth Amendment privilege does NOT apply
Blood, hair, handwriting samples, fingerprints, lineups, photo IDs; scars, tattoos; put on a hat, item of clothing; bloody glove, “read this.”
Can testimony given at a preliminary hearing waive 5th amendment rights at trial?
No, can’t be compelled
May the prosecutor comment on defendant’s 5th amendment privilege at trial?
no
Witnesses or parties in civil cases must assert the 5th amendment when?
When on the state
a witness with Transactional Immunity
cannot be prosecuted for the underlying offense
a witness with Use Immunity
cannot have their testimony used against them but can still be charged with the underlying offense
when does someone waive 5th amendment?
Occurs expressly whenever the holder of the privilege voluntarily discloses the privileged info.
When can you comment on someone asserting their 5th amendment right?
Civil cases
≠criminal cases
