Privileges

Question 1

Privileges

in general

Answer 1

• Evidentiary privileges preserve human dignity and protect valuable relationships and social interests
• The FRE do not codify any privileges. It is left up to federal common law.
  
  • 501: when state law governs civil claim or defense, state law determines privilege
• Federal law recognizes 3 major privileges
  
  • Right against self-incrimination
    
    • Applies to both civil and criminal
  • Attorney-client privilege
  • Spousal privilege
• For every privilege, must know
  
  • Who holds the privilege and has the power to waive it
  • When the privilege applies
  • What info the privilege covers
  • Whether the privilege is absolute or qualified

Question 2

The attorney-client privilege

Answer 2

• 5 components
  
  • Client
  • Attorney
  • Communication
  • Confidentiality
• Purpose is facilitating professional legal services
• Only protects the communication itself, not the underlying facts
• Clients cannot use the privilege to hide documents or other items that exist independently of the a-c relationship
• The client controls the privilege and decides whether to waive it
  
  • However the atty usually asserts the p on behalf of the client
• Disclosing the confidential comm to a 3rd party waives the p
• If a client seeks legal assistance to commit a crime or fraud, the p does not protect any communications
• Work product privilege
  
  • Complements the a-c p by protecting docs and other materials prepared in anticipation of litigation
    
    • An atty’s mental impressions and legal theories receive absolute p
    • More factual work product has qualified protection

Question 3

Upjohn factors:

to determine if an employee is a client covered by A-C privilege

Answer 3

(i) they were made to in-house counsel at the direction of corporate superiors,
(ii) concerned matters within the scope of the employees’ in-house duties,
(iii) the information was not available from upper-level management; and
(iv) the employees were aware that they were being questioned in order for the corporation to receive legal advice

Question 4

Spousal privilege

Testimonial privilege

(vs. marital / confidential communication)

Answer 4

• Only applies when a spouse is a criminal defendant
  
  • Or the target of a grand jury investigation
  • DOES NOT apply in civil proceedings
    
    • CALIFORNIA EXCEPTION: applies both criminal and civil
• The spouse may refuse to testify about ANYTHING
• Applies only during the life of the marriage
  
  • Also applies to info obtained before the marriage
• The witness spouse controls the privilege. She can testify if she wants to.
• Does not apply when
  
  • the spouse commits a crime against the other, or
  • against a child in their custody, or
  • They jointly commit a crime

Question 5

Spousal privilege

marital / confidential communication

(vs. Testimonial privilege)

Answer 5

• Both civil and criminal
• Survives the end of the marriage, but only applies to communications made during the marriage (not before the marriage)
• Both spouses control the privilege
  
  • Neither spouse may waive w/out the other’s consent
• Presence of a 3rd party defeats the privilege
• Does not cover observations (only communications)
• Does not apply when
  
  • the spouse commits a crime against the other, or
  • against a child in their custody, or
  • They jointly commit a crime

Question 6

Psychotherapist-Patient Privilege

Answer 6

• In most particulars, this privilege operates in the same manner as the attorney-client privilege
• Applies only to communications for the purpose of diagnosis or treatment of a mental or emotional problem
• Exceptions
  
  • Patient puts mental condition in issue
  • Breach of duty to therapist (malpractice, failure to pay)
  • CALIFORNIA:
    
    • patient is a danger to himself or others
    • Court-appointed therapists
  • Minors <16 who have been victims of crimes

Question 7

Physician-Patient Privilege

Answer 7

• Not in federal courts
• CALIFORNIA: yes, in civil cases, for communications made for the purpose of diagnosis or treatment
• Exceptions
  
  • When patient puts condition in issue, physician has duty to report, competency proceedings, crime-fraud, breach of duty

Question 8

Executive Privilege

Answer 8

• Protects confidential communications between the president and his close advisors
• 2 levels
  
  • Shelters military diplomatic and national security secrets (stronger)
  • Protects more generalized interest in confidentiality (qualified)
    
    • This can be overcome by making a sufficient showing of need

Question 9

Clergy - Communicant Privilege

Answer 9

• Elements
  
  • Covers communications
  • Made in confidence
  • By a person seeking spiritual counseling
  • To a member of the clergy
• Supreme court has never explicitly held that it exists, but has approved it in dicta
• Communicant controls the privilege, but is usually asserted by the clergy

Question 10

Right against self-incrimination

Answer 10

• Fifth amendment- “no person… shall be compelled in a criminal case to be a witness against himself.”
• Only applies if you are exposed to criminal liability
• Available to any witness in any proceeding, criminal or civil
• If a defendant chooses to testify, they waive the privilege
• Privilege is absolute
  
  • However, can testify in exchange for immunity from her testimony
• Only applies to people, not corporations
• If you confess, you may still assert the privilege. It is not an ongoing waiver of your rights.

Question 11

Barbri

Spousal Immunity

Answer 11

• Criminal cases only- where one spouse is a defendant
• Witness-spouse holds the privilege
  
  • Can testify if she wants to
• Does not survive the marriage. After marriage is over, the spouse can be compelled to testify about observations.
  
  • but confidential communications are still privileged

Question 12

Barbri

Marital Confidential Communications

Answer 12

• Civil and criminal
• Both spouses hold the privilege.
  
  • Must have consent of both to waive privilege
• Survives the marriage

Question 13

Barbri

Both Spousal privileges

Answer 13

• Exceptions to both
  
  • Communications about future crime
  • Spousal / child abuse
• They can work in conjunction
  
  • If spouse decides to testify about observations (waiving the spousal immunity privilege), the confidential communications privilege keeps her from testifying about communications (because there must be consent from both spouses to waive it)

Question 14

Privilege against self-incrimination

criminal or civil?

Answer 14

BOTH