Privileges Flashcards
In federal diversity actions, what defines the scope of privileges available to a witness in a civil case?
State law
In federal questionand criminal actions,whatdefinesthescope of privileges available to a witness?
Federal common law
Unless as provided by statute, what privileges can a person never assert?
The privilege to refuse to:
- Be a witness
- Disclose a matter
- Produce any object or writing
What are the four communication privileges recognized in federal courts and in all 50 states?
- Attorney - Client
- Psychotherapist - Client
- Clergy - Penament
- Husband - Wife
What are the steps to analyzing a privileges issue?
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 apply
In the attorney-client privilege, who is theholderand what isprotected?
Holder: Client
Protected:
Communications made for the purpose of seeking professional legal advice or services
And
Work product prepared in anticipation of litigation
≠ observations
More Info: Attorney-Client Privilege
What is the scope of persons the attorney-client privilege can apply to?
Anyone who is assisting and furthering the representation, including paralegals, secretaries, and doctors making physical exams.
How is attorney-client destroyed?
When the parties are aware that someone is listening to the conversation
Who qualifies as the client in attorney-client privilege?
Any person or entity who is seeking legal services or is consulting with the possibility of obtaining legal services
Who is a lawyer for attorney-client privilege?
Anyone who is reasonably believed by the client to engage in the practice of law
Who can claim privilege in the attorney-client privilege?
The client or the lawyer on the client’s behalf
What is the consequence of a failure to assert a privilege when a privilege applies to a piece of evidence?
The privilege is waived as to whatever information was objectionable.
In what unique client circumstances is there not attorney-client privilege?
- Client is planning a future crime and fraud
- When a client sues attorney
- Joint Clients, meaning where two clients hire the same attorney and are then involved in litigation between each other
Are fee arrangements privileged information?
No
What is the duration of the attorney client privilege?
Infinite, going beyond the client’s death
When do doctor-patient privileges exist?
Only through state statute, so the case needs to be in federal court based upon diversity for it to apply federally
When it applies, what fields does the doctor-patient privilege extend to?
- Licensed social worker
- Marriage counselors
- Psychotherapist
- Medical Providers
≠ Educational or Vocational counselors
More Info: Doctor-Patient Privilege
What is the scope of the doctor-patient privilege?
The privilege applies to protect confidential communications:
- Between a licensed doctor and a patient
- Directly associated with medical treatment
* More Info:* Doctor-Patient Privilege
When does doctor-patient privilege not apply?
- Personal injury cases
And
- Malpractice suits againsts doctor
Who can assert the marital communications privilege?
Either spouse, both are the holders of the privilege
What does the marital communications privilege protect?
Those conversations by the parties intended to be confidential during their marriage
≠ Observations
When is marital communication privilege terminated?
It never terminates
What are the exceptions to the marital communication privilege?
The privilege does not exist when:
- Crimes of one spouse v. another, or against a child
- Divorce proceedings are before the court
Or
- Spouses jointly participate in a crime
What is spousal immunity?
It 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.
More Info: Spousal Immunity
Who can assert spousal immunity?
In federal court, the spouse who is testifying has the right to assert it. The non-testifying spouse cannot assert the privilege.
What are the requirements for spousal immunity?
- A valid marriage
- A criminal case
- No divorce
The religious privilege protects what confidential communications?
Only applies to communications:
- From pennant to clergyman
- Under conditions of confidentiality
- With intent to give spiritual guidance
The 5th Amendment privilege against self-incrimination only applies when?
Witness testimony
What types of evidence does the 5th Amendment not apply to?
Blood, hair, handwriting samples, fingerprints, lineups, and photo IDs.
Can testimony given at a preliminary hearing waive 5th amendment rights at trial?
No, the 5th Amendment can never be waived
May the prosecutor use the defendant’s assertionof the5th Amendment privilege against him?
No
When can witnesses and parties in civil cases assert the 5th Amendment?
When on the stand
More Info: Assertion of 5th Amendment
What protections are offered to a witness with transactional immunity?
The witness cannot be prosecuted for the underlying offense.
What protection does a witness with use immunity have?
The witnesses cannot have their testimony used against them; however, they can still be charged with the underlying offense.
How is the 5th Amendment waived?
Waiver occurs whenever the holder of the privilege voluntarily discloses the privileged informoation.
However, it can be asserted again.
When can an opposing party use a party asserting their 5th amendment right against them?
Only in civil cases, never in criminal cases
