Privileges

Question 1

Does the Federal Rules of Evidence have rules on privilege?

Answer 1

No, FRE has adopted federal common law privileges

(FRE 501)

⚠️ Note: In diversity actions, privileges are determined by the state’s substantive law

Question 2

Define

testimonial privilege

Answer 2

Allows a witness to refrain from disclosing certain knowledge

Question 3

What are the basic testimonial privileges?

Answer 3

1. Attorney/client
2. Psychotherapist/client
3. Spousal
4. Doctor/patient
5. Clergy-penitent (some jurisdictions)

Question 4

What is required for a privilege to apply?

Answer 4

1. Persons in the conversation are in a protected/privileged relationship;
2. Communication was intended to be confidential (i.e. outside the presence of a third party);
3. Holder is asserting the privilege;
4. Privilege was not waived; and
5. No exceptions apply

Question 5

When does the presence of a third party not destroy privilege?

Answer 5

1. Third party is essential to the conversation (e.g. translator); or
2. Third party’s presence is unknown to either party

Question 6

When is a privilege waived?

Answer 6

1. Privilege is not timely asserted;
2. Privilege is waived via contract; or
3. Holder intentionally tells a third party about the communication

Question 7

What is attorney-client privilege?

Answer 7

Privilege held by the client that protects communications intended to be confidential made for the purpose of seeking professional legal advice or services.

Question 8

Who does attorney-client privilege apply to?

Answer 8

• Client;
• Lawyer; and
• Anyone employed by the lawyer to assist in the rendition of legal services (e.g. paralegal, secretary, private investigator)

Question 9

In a corporation, who is protected by attorney-client privilege?

Answer 9

All employees who are either directed to communicate with the attorney or are communicating pursuant to their corporate responsibilities

Question 10

Under what circumstances does attorney-client privilege not exist?

Answer 10

If:

1. Communication was sought to faciliate a crime or fraud;
2. Lawyer’s client is now deceased and disclosure is necessary to effectuate a will;
3. Communication is necessary for the lawyer to defend him/herself; and
4. Lawyer had two joint clients who are now adverse to one another

Question 11

What is the duration of attorney-client privilege?

Answer 11

Until it is waived; survives client’s death

Question 12

If there has been an inadvertent disclosure of privileged information, what steps must be taken to ensure the privilege is not waived?

Answer 12

Holder of the privilege must:

1. Have taken reasonable steps to prevent disclosure; and
2. Promptly took reasonable steps to rectify the error

FRE 502(b)

Question 13

What is doctor-patient privilege and when does it exist?

Answer 13

State law privilege protecting communications between patients and physicians, recognized by most federal courts.

Exists when communication is:

1. Intended to be confidential;
2. Between a doctor and a patient;
3. Made for the purpose of obtaining treatment or a diagnosis; and
4. Relevant to the medical treatment or diagnosis

Question 14

Under what circumstances does doctor-patient privilege not apply?

Answer 14

1. Personal injury cases where patient’s condition is at issue;
2. If the examination or communication was made for the purpose of litigation;
3. If the communication was used to faciliate a crime;
4. If there is a dispute between the doctor and patient (e.g. malpractice); or
5. Patient waived the privilege

Question 15

When does the psychotherapist-patient privilege apply?

Answer 15

If communication was:

1. Intended to be confidential;
2. Made to a licensed therapist, psychologist, psychiatrist, or social worker;
3. During the therapy or course of treatment

Question 16

What are the two types of spousal privilege?

Answer 16

1. Spousal testimonial privilege; and
2. Marital communications privilege

Question 17

What is the marital communications privilege?

Answer 17

Privilege that can be invoked by either spouse. Protects confidential communications made during a legally valid marriage.

Applies in both civil and criminal cases.

Question 18

How long does the marital communication privilege last?

Answer 18

Never terminates, can be invoked after divorce for communications made during the marriage

Question 19

Under what circumstances does the marital communications privilege not apply?

Answer 19

1. When one spouse destroys confidentiality by disclosing the communications to a third party;
2. In a proceeding between the two spouses;
3. In a proceeding in which one spouse is charged with a crime against children or the other spouse;
4. In a proceeding in which the spouses are co-D’s; and
5. If communications were used to faciliate a crime

Question 20

What is spousal testimonial privilege/immunity?

Answer 20

Protects a witness-spouse from having to testify against a defendant-spouse in a criminal trial. Applies to events before and during the marriage.

⚠️ Note: Witness-spouse can testify, but cannot be forced to do so.

Question 21

Who can assert spousal immunity?

Answer 21

Witness-spouse only. The defendant-spouse cannot prevent the witness-spouse testifying.

Question 22

When does the spousal immunity terminate?

Answer 22

Upon divorce or annulment

Question 23

Compare spousal immunity and marital communications privilege

Answer 23

• Spousal immunity
  
  • Can only be asserted during the marriage (terminates upon divorce or annulment)
  • Can be asserted by the witness-spouse only
  • Can apply to communications before marriage
  • Criminal cases only
• Marital communications
  
  • Can be asserted at any time, including after divorce or death of a spouse
  • Can be asserted by either party
  • Only covers communications during marriage
  • Civil and criminal cases

Question 24

What does the Clergy-Penitent privilege protect?

Answer 24

The privilege only applies to communications:

1. Between penitent and clergyman;
2. In the clergyman’s role as a spiritual adviser;
3. Under conditions of confidentiality

Question 25

Do news organizations have the privilege to protect the identity of their sources?

Answer 25

Not on the federal level, but several states have enacted laws so that journalists are not required to reveal their sources

Question 26

What is the 5^th Amendment privilege and what does it apply to?

Answer 26

Holds that witnesses in criminal and civil trials have right against “self-incrimination,” i.e. can refuse to answer questions that would be incriminating

⭐️ For more information, please see the Criminal Procedure deck under “Confessions and Self-Incrimination”