PRIVILEGES Flashcards
Attorney-Client Privilege
The client is the holder of the privilege and may refuse to disclose (and prevent other persons from disclosing confidential communications made for the purpose of seeking professional legal advice or services.
Confidential Communication:
Communications are protected, observations are not. This includes oral and written statement and conduct intended to be confidential
Extends to agent’s of the attorney (accountants, investigators, translators, doctors, jury consultants, secretaries)
Privilege survives the client’s death
Exceptions:
- Future crime or fraud
- Suits between attorney and client
Caveats:
1. Fee arrangements and billing records not privleged
Effect of ease droppers on atty-client privilege
Unknown Eavesdropper - Do not destroy the privilege
Known or anticipated eavesdroppers destroy the privilege.
Waiver of Attorney-Client Privilege
- Failure to assert in a timely manner
- Waiver of privileges generally only extends to permit reasonable scrutiny of the disclosed information
Blank waiver IF:
- Waiver is intentional
- Both disclosed and undisclosed information concerns same subject matter
Inadvertent Waiver (waiver failure) IF client:
- Did not intend to waive privilege
- Took reasonable steps to protect the information and
- Took timely steps to remedy the disclosure
Doctor-Patient and Psychotherapist-Patient Privilege
There is privilege for confidential communications between a psychotherapist and a patient who is seeking diagnosis or treatment for a medical condition (mental or emotional)
Psychotherapist includes:
1. Social workers, psychologists, mental health specialists, psychiatrists, marriage counselors NOT educational and vocational counselors
Exception:
- Statement made regarding commitment proceedings
- Statement dealing with court-ordered examinations
- When medical condition is part of the claim
Marital Communication Privilege
Protects confidential communications between the spouses made during the marriage. Can be asserted by either spouse in any proceeding.
Survives divorce and death of marriage.
Communications in the presence of older children, friends and relatives are not protected
Exception:
- Victim spouses or children
- Suits between spouses
- Joint spousal participation in crime
Spousal Immunity
Protects all communications both during and before marriage in a criminal case. Spouse enforcing the privilege cannot be compelled to testify against nearly anything.
The witness spouse is the holder, and chooses whether or not to use the privilege.
Exceptions:
- Situations where one spouse is charged with a crime against the other
- Criminal cases involving a child of either spouse
Religious Privilege
Protects confidential communications made from pertinent (follower) to clergyman in their capacity as a spiritual advisor.
Can be asserted by either party. Confidentiality needed to be involved
No exceptions
Political Vote, Informer, Executive Privilege
Political Vote - Everyone has privilege to refuse to disclose their vote unless compelled by state election laws
Identity of Informer - US and states have privilege to refuse to disclose identity of person providing info to law enforcement. Can only be assert by government
Executive Privilege - Power of the president and other executive branch officials to withhold confidential communicators. relating to national security and protecting the privacy or white house deliberations
Fifth Amendment Privilege against Self-Incrimination
Constitutional privilege that allows individuals to avoid self incrimination through testimony.
Real and demonstrative evidence is not protected. (blood, hair, handwriting sample, fingerprints, lineup, photo ID, scars, tattoos, requiring party to put on hat or glove, request to read something out loud
Immunities
Transaction Immunity - Witness cannot be prosecuted for the underlying offense.
Use Immunity - Statements by witness will not be used against them, but prosecution can still occur
Immunized witness may still be persecuted for perjury
