Privileges Flashcards
Privileges
- Fed. Rules defer to Federal Common law privileges
- Exception - Diversity Cases - State rules apply
What are the 4 communication privileges recognized in federal courts and in all 50 states?
- Attorney-Client
- Psychotherapist-Client
- Clergy-Penitent
- Husband-Wife
What are the steps to analyzing a privilege issue?
Excluding evidence by way of privilege only occurs if:
- The persons in the conversation must be in a protected relationship
- A communication must have occured
- The communication must be made with the intent of confidentiality
- Only the holder of the privilege can assert the privilege
- The holder didn’t waive the privilege at any point
- No exceptions to the privilege apply
Confidential Communication
- Necessary for priv. to apply
- If overheard, privilege is destroyed, unless:
- no knowledge of 3d party’s presence or
- 3d party is nec. to assist in communication (translator)
Waiver of Privilege
Privilege may be waived if the person who holds the privilege:
- Fails to assert the priv. in a timely manner (when testimony is offered)
- Voluntarily discloses communication to a 3d party, or
- Contractually waives it in advance
Wrongful disclosure is not a waiver
In the attorney client priv., who is the holder and what is protected?
- Holder - Client
- Protected:
- Communications made for the purpose of seeking prof. legal advice or services, AND
- WOrk products prepared in anticipation of litigation (not observations)
What is the scope of persons the attorney-client privilege can apply to?
Anyone who is assisting and furthering the representation, including paralegals, secrataries, and doctors making physical exams
When is attorney-client privilege destroyed ?
- When the parties are aware that someone else is listening to the conversation or
- Waived
- Priv. can survive client’s death
In what circumstances is there not attorney-client privilege?
- Client is planning a future crime and fraud
- Relevant to dispute b/w attorney and client (malpractice allegation)
- Relevant to dispute b/w parties who claim through the same deceased client
- Between former co-clients who are now adverse to each other
Are fee arrangements privileged information?
NO
Attorney-Client Privilege - Work Product
- Documents prepared by attorney for his own use in connection with the client’s case aren’t covered by a-c priv. b/c not communications
- Protected under work-product doctrine and not subject to discovery, unless party seeking disclosure
- Demonstrates substantial need, and
- can’t obtain the info by any other means without undue hardship
When do doctor-patient privileges exist?
Through State Statute - Protected So long as co. made for the purp. of obtaining medical treatment
When does the Physician-Patient Priv. not exist?
- The info was acquired for reasons other than treatment
- The patient’s physical condition is at issue
- Statement is made as part of the commission of a crime or tort
- Dispute exists b/w patient and physician
- Patient contractually waives privilege, OR
- Case is brought in federal court & state law doesn’t apply (most cases involve a federal question)
Psychotherapist-Patient Privilege
- Patient hold priv.
- Priv. doesn’t exist if:
- Patient’s mental condition is at issue
- Statement was result of state ordered exam or
- Case is commitment proceeding against patient
Spousal Immunity
Protects all communications, regardless of confidentiality, both during and before marriage
- Spouse of criminal D can’t be called as a witness by the prosecution
- Married pers. can’t be compelled to testify against his spouse in any criminal proceeding regardless of who D is
Spousal immunity - Holder of the Privilege
- Federal Courts & Majority of States - Witness spouse holds the the priv & may choose to test. but can’t be compelled to do so
- State Courts & Minority of States - Party spouse holds priv. & may prevent witness spouse from testifying, even if witness spouse wants to testify
Confidential Marital Communications
Communications made b/w spouses while they were married is privileged if the communication was made in reliance on the sanctity of marriage
Confidential Marital Communications - Whol holds the privilege?
Majority - Held by both spouses
Minority - Only the communicating spouse can assert the priv.
When is marital communication privilege terminated?
- Never terminates
- Time for asserting priv. extends beyond the termination of the marriage
When is Spousal Immunity Terminated ?
- Ends when the marriage ends
What are the exceptions to the marital communication privilege and Spousal Immunity ?
- where one spouse is suing the other
- When one spouse is charged with a crime against the other spouse OR
- One spouse is charged with a crime against a child
The religious Privilege protects what confidential communications?
- From penitent to clergyman
- Under conditions of confidentiality
- With inteent to give spiritual guidance
When does the 5th amendment privilege against self-incrimination apply?
- Allows witness to refuse to give testimony that may tend to incriminate him
- priv. only belongs to human beings
- Covers only current statements
When can 5th amendment rights be waived
- When the holder of the priv. voluntarily discloses the privileged information
- BUT it can be asserted again
What are the requirements for spousal immunity?
- A valid marriage
- A criminal case
- No divorce
What type of evidence does the 5th amendment not apply to?
- Blood
- hair
- handwriting samples
- fingerprints
- lineups
- photo IDs
May the prosecutor use the defendant’s assertion of the 5th amendment priv. against him?
No
- Can’t comment on the defendant’s failure to take the stand
- Can’t argue that the jury should draw a negative inference from the assertion of the priv.
When can witnesses and parties in civil cases assert the 5th amendment ?
When on the stand
Immunity
- Witness may be compelled to provide incriminating test. if the gov’t grants him immunity from prosecution
- NOT entitled to Transactional Immunity
- Protection against prosecution for the entire transaction about which he is testifying
- Gov’t const. req. to offer Use Immunity
- Prohibits use of the compelled test. against the witness
- If gov’t does prosecute the witness
- Gov’t has burden to show that the compelled test. didn’t provide an investigatory lead that was helpful to the prosecution
What is the consequence of a failure to assert a privilege when a priv. applies to a piece of evidence ?
Priv. is waived as to whatever info was objectionable
Governmental Privilege
The gov’t, at all levels, is privilegd against disclosing
- The identity of an informant in a criminal case, and
- communication of official information by or public officials
- Info that relates to the internal affairs of the gov’t & is not open to the public
What protections are offered to a witness with transactional immunity ?
The witness can’t be prosecuted for the underlying offense
What protection does a witness with use immunity have?
Witness can’t have their testimony used against them BUT they can still be charged with the underlying offense
When can an opposing party use a party asserting their 5th Amend. right against them
- Only in Civil Cases
- Never in criminal cases
