Privileges

Question 1

In Federal diversity actions, what defines the scope of privileges available to a witness in a civil case?

Answer 1

State law

Question 2

In Federal question and criminal actions, what defines the scope of privileges available to a witness?

Answer 2

Federal common law

Question 3

Unless as provided by statute, what privileges can a person never assert?

Answer 3

The privilege to refuse to:

1. Be a witness
2. Disclose a matter
3. Produce any object or writing

Question 4

What are the four communication privileges recognized in Federal courts and in all 50 states?

Answer 4

1. Attorney - Client
2. Psychotherapist - Client
3. Clergy - Penament
4. Husband - Wife

Question 5

What are the steps to analyzing a privileges issue?

Answer 5

Excluding evidence by way of privilege only occurs if:

Step 1: The persons in the conversation must be in a protected relationship

Step 2: A communication must have occurred

Step 3: The communication must be made with the intent of confidentiality.

Step 4: Only the holder of the privilege can assert the privilege.

Step 5: The holder did not waive the privilege at any point.

Step 6: No exceptions to the privilege applies.

Question 6

In the Attorney-Client Privilege: who is the holder? What is protected?

Answer 6

Holder: Client

Protected:

Communications made for the purpose of seeking professional legal advice or services

And

Work product prepared in anticipation of litigation

≠ observations

Question 7

What is the scope of persons the attorney-client privilege can apply to?

Answer 7

Anyone who is assisting and furthering the representation: paralegals, secretaries, doctors making physical exams.

Question 8

How is attorney-client destroyed?

Answer 8

When the parties are aware that someone is listening to the conversation.

Question 9

Who qualifies as the client in attorney-client privilege?

Answer 9

Any person or entity who is seeking legal services or is consulting with the possibility of obtaining legal services.

Question 10

Who is a lawyer for attorney-client privilege?

Answer 10

Anyone who is reasonably believed by the client to engage in the practice of law

Question 11

Who can claim privilege in the attorney-client privilege?

Answer 11

The client or the lawyer on the client’s behalf.

Question 12

What is the consequence of a failure to assert a privilege when a privilege applies to a piece of evidence?

Answer 12

The privilege is waived to whatever information was objectionable.

Question 13

In what unique client circumstances is there not attorney-client privilege?

Answer 13

1. Client is planning a future crime and fraud
2. When a client sues attorney
3. Joint Clients: Two clients hire the same attorney and are then involved in litigation between each other.

Question 14

Are fee arrangements privileged information?

Answer 14

No

Question 15

Duration of the attorney client privilege?

Answer 15

Infinite: beyond the client’s death.

Question 16

When do doctor-patient privileges exist?

Answer 16

Only thru state statute: the case needs to be in federal court based upon diversity.

Question 17

When it applies, what fields does the doctor-patient privilege extend to?

Answer 17

1. Licensed social worker
2. Marriage counselors
3. Psychotherapist
4. Medical Providers

≠ Educational or Vocational counselors

Question 18

What is the scope of the doctor-patient privilege?

Answer 18

The privilege applies to protect confidential communications between:

1. A licensed doctor and a patient
2. For communications directly associated with medical treatment.

Question 19

When does doctor-patient privilege not apply?

Answer 19

1. Personal injury cases

And

2. Malpractice suits againsts doctor.

Question 20

Who can assert the marital communications privilege?

Answer 20

Either spouse, both are the holders of the privilege.

Question 21

What does the marital communications privilege protect?

Answer 21

Those conversations by the parties intended to be confidential during their marriage.

≠ Observations

Question 22

When is marital communication privilege terminated?

Answer 22

It never terminates

Question 23

What are the exceptions to the marital communication privilege?

Answer 23

The privilege does not exist when:

1. Crimes of one spouse v. another or against a child
2. Divorce proceedings

Or

3. When spouses jointly participate in a crime.

Question 24

What is spousal immunity?

Answer 24

Protects all communications, regardless of confidentiality, both during and before marriage.

The immunity 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 Federal court, the spouse who is testifying has the right to assert it. The non-testifying spouse cannot assert the privilege.

Question 26

What are the requirements for spousal immunity?

Answer 26

1. A valid marriage
2. A Criminal cases
3. No divorce.

Question 27

The religious privilege protects what confidential communications?

Answer 27

Only applies to communications:

1. From pennant to clergyman
2. Under conditions of confidentiality
3. With intent to give spiritual guidance

Question 28

The 5th Amendment privilege against self-incrimination only applies when?

Answer 28

Witness testimony

Question 29

What types of evidence for the 5th Amendment not apply to?

Answer 29

Blood, hair, handwriting samples, fingerprints, lineups, photo IDs.

Question 30

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

Answer 30

No, the 5th Amendment can never be waived

Question 31

May the prosecutor use a the ∆’s asserting of the 5th Amendment privilege against him?

Answer 31

No

Question 32

When can witnesses and parties in civil cases assert the 5th Amendment?

Answer 32

When on the stand.

Question 33

What protections are offered to a witness with transactional immunity?

Answer 33

The witness cannot be prosecuted for the underlying offense.

Question 34

What protection does a witness with use immunity have?

Answer 34

The cannot have their testimony used against them; however, they can still be charged with the underlying offense.

Question 35

How is the 5th Amendment waived?

Answer 35

Occurs whenever the holder of the privilege voluntarily discloses the privileged informoation.

However, it can be asserted again.

Question 36

When can an opposing party use a party asserting their 5th amendment right against them?

Answer 36

Only in civil cases

≠ criminal cases