Privileges Flashcards
Who can waive a privilege
The holder of the privilege
Two ways in which waiver of privilege can occur
(1) the first is formal, voluntary waiver at trial, in which the holder informs the court of his intent to waive the privilege
(2) the second is informal, voluntary waiver, in which the holder discloses the information to others without concern for its continued confidentiality. The significance of this type of waiver is that disclosure to one person is generally viewed as disclosure to all
What happens when privileged information is involuntary disclosed?
When privileged information is involuntarily disclosed, intercepted, or disclosed without authorization, the holder of the privilege may still be able to claim the privilege at trial.
Rule 501 - Privilege in General
The common law—as interpreted by United States Courts in the light of reason and experience—governs a claim of privilege unless any of the following provides otherwise:
- The United States Constitution
- A federal statute, or
- Rules prescribed by the Supreme Court
But, in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.
Two types of privilege
Instrumental privileges – these are privileges justified by utilitarian reasons supporting socially valuable things, such as people getting advice from lawyers or speaking openly to physicians or therapists
Privacy privilege – these privileges are justified by privacy concerns such as marital communications or national security secrets
412(a) - Rape Shield - Prohibited Uses
The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:
(1) evidence offered to prove that a victim engaged in other sexual behavior, or
(2) evidence offered to prove a victim’s sexual predisposition
Examples of “other sexual behavior” under Rule 412(a)(1)
Actual sexual activity
Conduct that suggests or implies sexual activity, and
Evidence of sexual fantasies, and “activities of the mind”
Rape Shield Rule and Relevance
Evidence prohibited by R412 might technically satisfy the minimal relevance requirements of R401, but it has limited probative value on the issue of whether the alleged sexual misconduct actually occurred.
Rule 412(b)(1) - Rape Shield - Exceptions in Criminal Cases
Exceptions, Criminal Cases – the court may admit the following evidence in a criminal case:
(A) evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence
(B) evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor, and
(C) evidence whose exclusion would violate the defendant’s constitutional rights
“physical evidence” in Rule 412(b)(1)
precludes evidence of psychological/mental injuries that might have occurred as a result of a sexual assault
Rule 412(b)(2) - Rape Shield - Exceptions in Civil Cases
Exceptions, Civil Cases – In a civil case, the court may admit evidence offered to prove a victim’s sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of a victim’s reputation only if the victim has placed it in controversy
Essentially creates a balancing test inverse to Rule 403
Rule 412(c) - Rape Shield - Procedure to Determine Admissibility
(1) Motion. If a party intends to offer evidence under 412(b), the party must:
(A) file a motion that specifically describes the evidence and states the purpose for which it is to be offered;
(B) do so at least 14 days before trial unless the court, for good cause, sets a different time;
(C) serve the motion on all parties; and
(D) notify the victim or, when appropriate, the victim’s guardian or representative.
(2) Hearing. Before admitting evidence under this rule, the court must conduct an in camera hearing and give the victim and parties a right to attend and be heard. Unless the court orders otherwise, the motion, related materials, and the record of the hearing must be and remain sealed.
Rule 412(d) - Rape Shield - Definition of Victim
In this rule, “victim” includes an alleged victim.
