Privileges Flashcards
TESTIMONIAL PRIVILEGES
= permit one to refuse to disclose and prohibit other from disclosing certain sorts of confidential information in judicial proceedings
reason for privileges
TESTIMONIAL PRIVILEGES
- practicality
2. society’s desire to encourage certain relationship by ensuring their confidentiality
2 types of privilege
TESTIMONIAL PRIVILEGES
- instrumental
2. privacy
instrument privileges
TESTIMONIAL PRIVILEGES
- Justification = utilitarian reasons supporting socially valuable things
- Such as = people getting advice from lawyers or speaking openly to physicians or therapist
privacy privileges
TESTIMONIAL PRIVILEGES
- Justification = privacy concerns
- Such as = marital communications or national security secrets
rules
TESTIMONIAL PRIVILEGES
- No privileges in FRE
- RULE 501 provides applicable privilege law
- 1101(c) provides application to proceeding
RULE 501
TESTIMONIAL PRIVILEGES
- COMMON LAW, as interpreted as by US court in light of reason and experience, GOVERNS a claim of privilege UNLESS any of the following provides otherwise
a. US Constitution
b. Federal statute
c. Rules prescribed by SC
- But in a CIVIL CASE, STATE LAW governs privilege regarding a claim or defense for which state law supplies the rule of decision
RULE 1101(c) TESTIMONIAL PRIVILEGES
- Privileges apply to “all stages of all actions, cases, and proceedings”
- Includes hearing conducted under FRE 104(a) to determine the preliminary admissibility of evidence
5 privileges recognized by federal law
TESTIMONIAL PRIVILEGES
- Attorney-client privilege
- Spousal immunity
- Confidential marital communications
- Psychotherapist/social worker-client privilege
- Clergy-penitent privilege
privilege not recognized by federal law
TESTIMONIAL PRIVILEGES
= Doctor-patient privilege
NOTE: often recognized by state law
persons who may assert privilege - 3 takeaways
TESTIMONIAL PRIVILEGES
- Privilege is personal = may be asserted only by
a. the party whose interest is sought to be protected OR
b. someone authorized to assert it on the holder’s behalf - If privilege is held by more than one person, each of them can claim the privilege
- Person with whom the confidence was shared may sometimes claim it on the holder’s behalf
who may assert privilege?
TESTIMONIAL PRIVILEGES
Privilege is personal = may be asserted only by
a. the party whose interest is sought to be protected OR
b. someone authorized to assert it on the holder’s behalf
if privilege is held by more than one persons, who can claim the privilege?
TESTIMONIAL PRIVILEGES
If privilege is held by more than one person, each of them can claim the privilege
confidentiality - 2 takeaways
TESTIMONIAL PRIVILEGES
- Communication must be shown to have been made in confidence to be privileges
- Many states recognize presumption that any disclosures made in course of relationship for which privilege exists were made in confidence
comment on/inference from use
TESTIMONIAL PRIVILEGES
No inference should be drawn from fact that witness has claimed a privilege
= Counsel for parties and judge are not permitted to make any comment or argument base on claim of privilege
4 waivers of privilege
TESTIMONIAL PRIVILEGES
All types of privileges are waived by
- Failure to claim the privilege by the holder herself
- Failure to object when privileged testimony is offered
- Voluntary disclosure of privileged matter by the holder or someone with holder’s consent (unless disclosure is also privileged)
- Contractual provision waiving in advance the right to claim a privilege
privilege not waived
TESTIMONIAL PRIVILEGES
Privilege is not waived where
- Someone wrongfully disclosed the information without the holder’s consent
- One joint holder waives the privilege
eavesdroppers
TESTIMONIAL PRIVILEGES
A privilege based on confidential communications is not abrogated because the communication is overheard by someone whose presence is unknown to the parties
= privilege still applies to the parties to the confidential communication
whether eavesdroppers may testify
TESTIMONIAL PRIVILEGES
Traditional view = the eavesdropper may testify to what he has overheard
Modern trend = as long as the holder of the privilege was not negligent, there is no waiver of the privilege, and eavesdropper is also prohibited from testifying
rationale
ATTORNEY-CLIENT PRIVILEGE
= to encourage candor between client and attorney
general rule
ATTORNEY-CLIENT PRIVILEGE
- Communications
- between an attorney and client (or representatives thereof)
- made during professional consultation
- are privileged from disclosure
NOTE = Objects and preexisting documents are not protected
relevant law
ATTORNEY-CLIENT PRIVILEGE
- First testimonial privilege ever established
- Common law privilege
- Codified by statute in some jurisdiction
holder of the privilege
ATTORNEY-CLIENT PRIVILEGE
= client or representative
NOTES
- person who was the attorney at the time of communication can claim the privilege, but only on behalf of the client
- attorney’s authority to do this is presumed in the absence of any evidence to the contrary
duration of the privilege
ATTORNEY-CLIENT PRIVILEGE
= indefinitely
- Termination of attorney-client relationship does not terminate privilege
- Client’s death does not terminate the privilege
attorney-client relationship
ATTORNEY-CLIENT PRIVILEGE
- Must exist at the time of communications
- Client must be seeking professional services of the attorney
- Disclosures made before attorney has decided to accept/decline the case = covered
confidential communication
ATTORNEY-CLIENT PRIVILEGE
CONFIDENTIAL if communication was not intended to be disclosed to third persons
- other than those
a. to whom disclosure would be in furtherance of the rendition of legal services to the client OR
b. who are necessary for the transmission of the communication
NOT CONFIDENTIAL if communication was made in the known presence and hearing of a stranger
= not privileged
2 major requirements
ATTORNEY-CLIENT PRIVILEGE
- attorney-client relationship
2. confidential communication
examination by doctor at attorney’s request
ATTORNEY-CLIENT PRIVILEGE
= covered by attorney-client privilege
b/c examination is necessary to help client communicate her condition to the attorney
= not covered by physician-patient privilege
b/c no treatment is contemplated
BUT privilege would be waived if doctor were later called as an expert witness by same client
attorney acts for both parties
ATTORNEY-CLIENT PRIVILEGE
Lawsuit between the two parties = no privilege can be invoked
b/c they obvious did not desire and could not expect confidentiality as between themselves in a joint consultation
Lawsuit between either or both of the parties and 3P = privilege can be claimed
b/c multiple parties can desire and expect confidentiality as against the outside world
attorney’s work product
ATTORNEY-CLIENT PRIVILEGE
Documents prepared by an attorney for his own use in prosecuting his client’s case are not protected by attorney-client privilege
BUT may be protected by the attorney’s “work product” rule
client - definition
ATTORNEY-CLIENT PRIVILEGE
= can be an individual private citizen, a public officer, a corporation, or any other organization or entity, public or private, seeking professional legal services
representative of client - definition
ATTORNEY-CLIENT PRIVILEGE
= one having the authority to obtain legal services or to act on advice rendered by an attorney, on behalf of the client
attorney - definition
ATTORNEY-CLIENT PRIVILEGE
= any person who is authorized or, in many jurisdictions, who is reasonably believed by the client to be authorized, to practice law in any state or nation
representative of attorney - definition
ATTORNEY-CLIENT PRIVILEGE
= one employed by the attorney to assist in the rendition of professional services
Example = clerk or secretary
corporation as client
ATTORNEY-CLIENT PRIVILEGE
Can be a client within the meaning of attorney-client privilege
statement of any corporate officials or employees made to the attorney
ATTORNEY-CLIENT PRIVILEGE
= protected if they were authorized or directed by the corporation to make such statements
work product rule
ATTORNEY-CLIENT PRIVILEGE
= work product of a lawyer is not subject to discovery except in cases of necessity
3 exceptions
ATTORNEY-CLIENT PRIVILEGE
- Legal advice in aid of future wrongdoing if client knew or should have known was a crime or a fraud
- Claimants through same deceased client
- When client puts legal advice into issue
when client puts legal advice into issue - examples
ATTORNEY-CLIENT PRIVILEGE
Example = tax fraud case where client claims to rely on advice of lawyer as defense
Example = legal malpractice or unpaid legal fee
disclosure in federal procedure - voluntarily disclosed
ATTORNEY-CLIENT PRIVILEGE
A voluntary disclosure of privileged material made in a federal proceeding operates as a waiver of the attorney-client privilege or work product protection only with respect to the disclosed material
RULE 502 limitations on waiver of attorney-client privilege and work product rule
ATTORNEY-CLIENT PRIVILEGE
RULE 502 =
- allows parties to disclose privileged material without risking waiver of the attorney-client privilege and work product rule as to undisclosed material
- also protects against waiver when the disclosure is the result of an innocent mistake
disclosure in federal procedure - undisclosed
ATTORNEY-CLIENT PRIVILEGE
The waiver does not extend to undisclosed privileged material unless:
- the waiver is intentional,
- both the disclosed and undisclosed material concern the same subject matter, and
- fairness dictates that all the material should be considered together to avoid a misleading presentation of evidence
RULE 502(a)
disclosure in federal procedure - inadvertent disclosure
ATTORNEY-CLIENT PRIVILEGE
IF
1. the disclosure was inadvertent and
2. the holder took reasonable steps to prevent disclosure and rectify the error
= then there is no waiver
RULE 502(a) and (b)
prior disclosure in state procedure
ATTORNEY-CLIENT PRIVILEGE
A disclosure of privileged material made in a state proceeding is not an effective waiver in a subsequent federal proceeding if:
a. the disclosure would not operate as a waiver if it had been made in a federal proceeding, or
b. the disclosure is not a waiver under that state’s law
RULE 502(c)
rule
CLERGY-PENITENT PRIVILEGE
PRIVILEGE TO
- refuse to disclose AND/OR
- prevent others from disclosing
- Confidential communication
- by the penitent
- to a member of the clergy
- In the clergy member’s capacity as a spiritual advisor
definition of clergy
CLERGY-PENITENT PRIVILEGE
Includes
- Minister
- Priest
- Rabbi
- Or other similar functionary of a religious organization
- Or reasonably believed to be so by the person consulting him
rule
SELF-INCRIMINATION
5th amendment =
- Witness cannot be compelled to testify against himself
- May refuse to answer any question whose answer may incriminate him
- May use the privilege to refuse to take the witness stand at all
holder of the privilege
SELF-INCRIMINATION
- Holder of the privilege = the witness
- Party cannot assert it on the witness’s behalf
definition of incriminating
SELF-INCRIMINATION
- Testimony is incriminating if
a. it ties the witness to the commission of a crime OR
b. would furnish a lead to evidence tying the witness to a crime - Testimony needs not prove guilt
applicability of privilege
SELF-INCRIMINATION
- Witness cannot refuse to answer b/c of exposure to civil liability = must be to avoid criminal liability
- Can be CLAIMED at any state or federal proceeding civil or criminal at which the witness’s appearance and testimony are compelled
- Can be invoked only by natural persons = cannot be invoked by corporations or associations
rationale
PSYCHOTHERAPIST-PATIENT PRIVILEGE
= to encourage candor between patient and medical professional
rule
PSYCHOTHERAPIST-PATIENT PRIVILEGE
SC recognizes federal privilege for communications between psychotherapist or license social worker and his client
application
PSYCHOTHERAPIST-PATIENT PRIVILEGE
Operates in same manner as attorney-client privilege
relevant law
PHYSICIAN-PATIENT PRIVILEGE
= Statutory privilege
NOTE: has not been adopted in all jurisdictions
rule
PHYSICIAN-PATIENT PRIVILEGE
= Physician cannot divulge information necessary to enable the physician to act in his professional capacity that he acquired while attending a patient in a professional capacity
key elements
PHYSICIAN-PATIENT PRIVILEGE
- Professional member of relationship must be present
- Information must be acquired while attending patient in the course of treatment
- Information must be necessary for treatment
nonapplicability
PHYSICIAN-PATIENT PRIVILEGE
privilege doesn’t apply in the following situations:
- Patient puts physician condition in issue
- Services in aid of wrongdoing
- Dispute between physician and patient
- Agreement to waive privilege
- Federal cases applying federal law of privilege
criminal proceedings
PHYSICIAN-PATIENT PRIVILEGE
Split of authority
- Some states = privilege applies in both civil and criminal cases
- Other states = privilege cannot be invoked in criminal cases generally
- Other states = privilege denied in felony cases
- Few states = denied only in homicide cases
psychotherapist - definition
PSYCHOTHERAPIST-PATIENT PRIVILEGE
psychiatrist or psychologist
2 types
HUSBAND-WIFE PRIVILEGES
- Spousal immunity
2. Confidential communications between spouses
application
SPOUSAL IMMUNITY
- Applicable in criminal cases only
- Immunity may be asserted only during marriage
- Immunity may be asserted even as to matters before the marriage
rule
SPOUSAL IMMUNITY
- Spouse cannot be compelled to testify against defendant spouse
- In any criminal proceeding
NOTE: applicable in criminal cases only
holder of the privilege
SPOUSAL IMMUNITY
- Holder of the privilege = witness spouse
- NOT the defendant spouse
rationale
SPOUSAL IMMUNITY
= to protect the harmony of the existing marriage
key elements
SPOUSAL IMMUNITY
- Valid marriage required
- Immunity may be asserted only during marriage
- Immunity may be asserted even as to matters before the marriage
rule
CONFIDENTIAL MARITAL COMMUNICATIONS
- In any civil or criminal case
- Either spouse
- Whether or not a party
- Has a privilege to refuse to disclose
- And to prevent another from disclosing
- A confidential communication made between spouses
- While they were married
holder of the privilege
CONFIDENTIAL MARITAL COMMUNICATIONS
- Holder of privilege = both spouses jointly hold privilege
- Either can refuse to disclose communication or prevent any other person from disclosing
rationale
CONFIDENTIAL MARITAL COMMUNICATIONS
= to encourage open communication and trust and confidence between spouses
key elements
CONFIDENTIAL MARITAL COMMUNICATIONS
- Valid marital relationship
2. Communication must be made in reliance upon the intimacy of the marital relationship
effect of divorce
CONFIDENTIAL MARITAL COMMUNICATIONS
- Divorce does not terminate privilege retroactively
- Communications after divorce = not privileged
communications made in reliance upon intimacy of marital relationship
CONFIDENTIAL MARITAL COMMUNICATIONS
- Includes = privileged
1. Spoken communication
2. Conduct intended as a communication - Doesn’t include = not privileged
1. Routine exchanges of a business nature
2. Abusive language
3. Misconduct directed to the spouse
exceptions
HUSBAND-WIFE PRIVILEGES
Neither spousal immunity nor confidential marital communications privileges applies in
- Legal actions between the spouses
- Cases involving crimes against testifying spouse
- Cases involving crimes against either spouse’s children
duration of privilege
SPOUSAL IMMUNITY
- Immunity may be asserted only during marriage
- Immunity may be asserted even as to matters before the marriage
