Privileges Flashcards
If federal question case in federal court, privileges are governed by:
federal common law
If diversity jurisdiction case in federal court, privileges are governed by:
the privilege law of the state whose substantive law is applicable.
*but state law on competency, burdens of proof, and presumptions can apply from state law
What are the elements of attorney-client privilege?
Privilege applies to:
- confidential communications (not pre-existing documents or physical evidence)
- between attorney and client (or rep of either)
- made during professional, legal consultation
- unless privilege is waived or an exception is applicable
What are exceptions to attorney-client privilege?
- future crime or fraud
- client puts legal advice in issue (“I followed my attorney’s advice on taxes” during a tax fraud prosecution)
- attorney-client dispute
What is the physician-patient privilege?
The physician-patient privilege is usually created by state statute, and it applies to:
- confidential communication or information acquired by physician from patient
- for diagnosis or treatment of medical condition
But doe snot apply if patient expressly or impliedly puts physical or mental condition in issue.
T/F: In federal-court actions based solely on federal law (federal question), privilege exists for psychotherapists BUT not for usual physician-patient confidences.
True.
What is spousal immunity?
Criminal cases: spouse cannot be compelled to testify after D-spouse, but he/she can choose to testify against spouse if he/she chooses.
What are confidential communications between spouses?
In any case, spouse is not required and is not allowed without other spouse’s consent to disclose confidential communication made by one to another during the marriage. *Privilege survives divorce.
What are exceptions to the confidential communications between spouses?
The exceptions include:
- communications or acts in furtherance of future crime or fraud
- communications or acts destructive of the family unit (spousal or child abuse)
Can spousal immunity be used to protect a spouse from testifying on matters from before the marriage?
If a marriage exists, the privilege can be asserted even as to matters that took place before the marriage.
When may the spousal immunity doctrine be invoked?
When the privilege of spousal immunity is invoked, a married person whose spouse is D in a criminal case may not be called as a witness by the prosecution, and a married person may not be compelled to testify against his spouse in any criminal proceeding. Spousal immunity may be invoked in criminal cases only.
A defendant was visiting with his girlfriend in his apartment when a visitor came to see him. The defendant and the visitor engaged in a conversation relating to the distribution of illegal narcotics in the girlfriend’s presence. Two months later, the defendant and his girlfriend married. Subsequent to the marriage, the defendant was arrested and charged under federal law with the sale and distribution of drugs. The prosecutor wants the defendant’s wife to testify about the conversation between the defendant and the visitor, but the defendant forbids it.
May the defendant’s wife testify about the conversation?
The wife may testify if she chooses to do so. The privilege of spousal immunity belongs to the witness-spouse.
As long as a marriage exists, the privilege can be asserted even as to matters that occurred prior to the marriage. Because the defendant is a criminal D, his wife cannot be compelled to testify about his conversation with the visitor. She may, however, choose to testify, and D cannot stop her.
This is not an issue of confidential communications (between spouses) because it was made in the presence of a stranger and not between spouses.
D was being sued for striking and seriously injuring a child with his car one evening while the child was playing in the street near the curb. At trial, the attorney for the child’s parents seeks to have the D’s wife testify that he had told her what had happened as soon as he had gotten home, and that he had said, “Between you and me, just before all this happened, I took a quick peek at the back seat to make sure I brought my briefcase home with me. If I had kept my eyes on the road, I never would’ve hit the kid.” The wife was recently divorced from D and eager to testify against him. The attorney for the child’s parents also presented evidence that, unknown to either D or his wife, their neighbor overheard this conversation through her open window.
Assuming a proper objection by the defense attorney, will the wife be permitted to so testify?
D’s statement to his wife was made in reliance upon the intimacy of what was at that time their marital relationship. Thus, he has a privilege to prevent her from disclosing the statement.
Given that the statement essentially constituted an admission of liability by the defendant, that he prefaced it with “between you and me,” and that he made the statement in the privacy of their home, it seems likely that the statement was made in confidentiality and in reliance upon the intimacy of the marital relationship. A third-party overhearing does not destroy the privilege.
The police arrested the defendant and charged him with murder. After the defendant’s arrest, two police officers went to his home, where they found his wife. The victim had been killed on the night of March 13, and the officers asked the wife to give them the jacket that the defendant wore on the evening of March 13. Without saying a word, the wife handed the officers a jacket that was covered with bloodstains. Crime lab tests established that the blood on the jacket matched the victim’s blood characteristics. At the defendant’s trial for murder, the prosecution seeks to introduce the jacket into evidence.
Assuming the prosecution successfully establishes a foundation, if the defense objects to the jacket’s admissibility, should the court admit the jacket?
The jacket is admissible as relevant evidence linking the defendant to the crime. Generally, all relevant evidence is admissible if offered in an unobjectionable form and manner (i.e., if it does not violate an exclusionary rule, such as hearsay). Clearly, the bloodstained jacket makes it more probably true that the defendant committed the murder than it would have been without the jacket; therefore, the jacket is relevant evidence. Because it does not violate any exclusionary rule, the jacket is admissible.
