Privileges

Question 1

Privileges Recongized on the MBE

Answer 1

(1) Attorney-Client
(2) Work Product
(3) Spousal immunity and marital communications
(4) Doctor-patient privilege
(5) Clergy-Penitent Privilege
(6) Fifth Amendment Privilege Against Self-Incrimination

Question 2

Attorney Client Privilege

this encourages the client to speak openly to his or her attorney. the client holds the privilege and it lasts forever (even after death)

The privilege applies to:

Answer 2

(i) Confidential communications - if the client knows a third party is listening, there is no privilege.
(ii) Between an attorney (or agent of atty) and client
(iii) Made for the purpose of obtaining legal advice
(iv) And there is no waiver
(v) And there is no exception that applies
a. Future crime or fraud
b. Lawsuit between atty and client
c. Joint Client Rule - if two clients consult an atty and later have a dispute with ea. other concerning the interest, the privilege does not apply.

Question 3

Work Product Protection

Answer 3

A rule that an opposing party may generally not discover or compel disclosure if written or oral materials prepared by or for an attorney in the course of legal representation, expecially in preparation for litigation.

In limited circumstances, the opposing party may discover or compel disclosure of work product upon a showing of “substantial need” and “undue hardship.”

However, even then, the opposing counsel will never be able to discover the attorney’s mental impressions.

Question 4

Spousal Immunity and Marital Communications

Purpose: to protect marriage that exist at the time of trial.

Answer 4

Spousal Immunity Elements

(1) Applies in a criminal trial
(2) Held by the witness spouse
(3) Must be married at the time of trial
(4) Event/Communication could have occurred before/during the marriage.

MICHIGAN - applies it to civil cases as well but states that during civil cases the privilege is held by the party who the witness spouse proposes to testify against (usually the defendant-spouse)

Question 5

Spousal Immunity and Marital Communications

Confidential Communication

Purpose: To encourage communication between spouses during marriage.

Answer 5

Confidential Communication Elements

(1) Applies in a civil or criminal trial
(2) Held by both spouses
(3) There must be a confidential communication
(4) Made during marriage (they do not have to be married at trial)

MICHIGAN - In criminal cases, only the witness spouse holds the privilege (for civil cases, it is same as federal)

Question 6

Exception to both marital privileges

Answer 6

(a) Litigation between spouses (e.g. divorce)
(b) abuse of spouse or children

Question 7

Doctor-patient privilege

NOTE: There is no dr.-patient privilege recognized under federal law. The federal rules recognize a Psychotherapist-patient privilege which covers communications made to social workers, counselors, etc

Answer 7

Elements of the doctor-patient privilege

(1) Confidential communication by a patient to a doctor.
(2) For purpose of diagnosis a treatment of a medical condition.

Exceptions

(a) If a patient puts their physical or mental condition at issue (e.g. suring for injuries from car accident)
(b) Dispute between patient and doctor
(c) Future crimes

Question 8

Clergy-Penitent Privilege

Answer 8

A person has a right to refuse to disclose or prohibit others from disclosing confidential communications to a member of the clergy (minister, priest, etc).

Question 9

Fifth Amendment Privilege Against Self-Incrimination

Answer 9

(1) It can be claimed at any civil or criminal, state or federal proceeding.
(2) It applies only to testimonial statements. Examples of what is not testimonial - blood tests, DUI, handwriting/voice samples.
(3) The 5th Amend. does not apply if the prosecutor grants immunity. There are two types of immunity.
(a) Use immunity - cannot use testimony or anything derived directly from it in future prosecution.
(b) Transactional immunity - will not prosecute for the crime(s) later.