Privileges and Other Exclusions Flashcards
Privileges - General + List
- Definition: When there is potential evidence, but an individual has the right to hold the evidence secret and cannot be forced to provide the information
- The FRE contain no specific privilege provisions; state law applies
Exam Tip 6: In federal question cases, privileges are determined under federal common law, pursuant to Rule 501 of the Federal Rules of Evidence. In diversity or supplemental claims in which a state’s substantive laws apply, that state’s law determines whether a privilege applies.
- A claim of privilege applies at all stages of a case [FRE 1101]
1. Confidential COmmunication
2. Spousal Immunity
3. Confidential Marital Communications
4. Attorney Client
Privilege - Confidential Communications
- For a communication to be privileged it must be confidential
- Overheard by an unwanted third party = privilege destroyed because it is not confidential
- Exceptions - privilege not destroyed
- If third party is unknown eavesdropper
- If party’s presence is necessary (e.g., translator)
- Holder may waive privilege
- If holder fails to timely assert it
- Involuntary disclosed
- Contractual waiver
Note 18: Wrongful disclosure without holder’s consent is not a waiver.
Privilege - Spousal - General
Two distinct privileges: Spousal Immunity and confidential marital communications
1)Spousal Immunity: a spouse is immune from testifying against husband or wife
Example 96: John Wilkes Booth is married. His wife cannot be forced to testify against him because she has spousal immunity.
2)Confidential Marital Communication: prevents a spouse from being able to testify about something that was said during the marriage
Privilege - Spousal Immunity
- General Rule: A criminal defendant’s spouse may not be called as a witness by the prosecution to testify against the defendant.
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A married person may not be compelled to testify against her spouse in any criminal proceeding including a grand jury.
- It does not matter who the defendant is.
Example 97: David Herold’s wife is called to testify in Booth’s trial. The spousal immunity privilege applies even though Herold is not the defendant.
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Holder of the privilege
- Federal court and a majority of the states: witness-spouse holds privilege and may choose to testify
- Example 98: John Wilkes Booth’s spouse, the witness spouse
- Minority of states: Party-spouse holds the privilege. May prevent spouse from testifying, even if witness spouse wants to testify
- Example 99: John Wilkes Booth, the party spouse
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Period of the privilege
- Applies to testimony about events occurring before and during the marriage
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Time limit to assert
- Only during a valid marriage
- Expires on divorce or annulment.
Privilege - Confidential Marital Communication
- A communication made between spouses while married is privilegedwhen made in reliance on sanctity of marriage.
Example 100: John Wilkes Booth says to his wife, “I am going to kill Abraham Lincoln.” This is considered a confidential marital communication.
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Holder
- Majority – Holder is both parties
Example 101: In federal court spousal immunity - Mrs. Booth holds the privilege and can choose to testify against her husband John Wilkes Booth. She can waive her spousal immunity to testify and take the stand. However, Booth can object and invoke the confidential marital communication privilege if Mrs. Booth attempts to testify to a statement Booth made to her in confidence during their marriage.
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Scope of the privilege
- Only applies to communications made during the marriage.
- Applies to both civil and criminal cases.
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Time limit to assert
- Extends indefinetely past end of the marriage.
Privilege - Spousal - Exceptions
Neither spousal privilege applies
- When one spouse is suring the other spouse
- When one spouse is charged with crime is against the other spouse
- When one spouse is charged with crime is against the children of either spouse
Privilege - Atty-Client - Elements
1)Confidential
- Communication must be intended to be confidential
- Third party present = generally destroy the privilege.
- Exception: Client representatives do not destroy the privilege
2)Communication
- Communication must be for legal advice or representation.
- Even if no legal advice is given and no representation occurs, statements made by the potential client can be privileged.
Example 102: John Wilkes Booth is seeking legal advice and tells an attorney his story. Even if the attorney does not give legal advice or Booth does not retain the attorney, attorney-client privilege still attaches.
- Not privileged
- Fee arrangement
- Identity of client
- Underlying facts of employment
- Statement made to an attorney who is acting in another capacity
Example 103: The attorney is a tax preparer and acting in that capacity. Or, the attorney is the chief operations officer and general counsel of a corporation and acting on behalf of the corporation. Statement is not privileged if made to an attorney who is acting in another capacity.
- Corporate Clients
- Some states limit the privilege only to the control group members of the corporation (i.e., directors and officers)
- Federal law: Non-control group communications can be privileged if they are communicating within their employment duties and for the purpose of seeking legal advice for the corporation.
3)Holder
- The client holds the privilege; only the client can waive the privilege.
- The attorney must assert the privilege on the client’s behalf.
- The privilege exists until it is waived and survives the client’s
Privilege - Atty-Client - Exceptions
The attorney-client privilege does not exist in the following situations:
- Communications made to enable or aid commission of what client knew or should have known was a crime or fraud.
- Communication re disputes between attorney and client (e.g., malpractice)
- Communication between two parties who claim the same diceased client
- Communications between co-clients of the same attorney who are now adverse
Note 19: Attorney documents do not fall under attorney-client privilege—Workproduct doctrine
Privilege - Atty-Client - Effect of Discolure on Waiver
Disclosures of protected information.
- Inadvertent disclosure - No waiver of privilege in a federal proceeding if holder
- Took reasonable steps to prevent disclosure; and
- Took reasonable steps to rectify disclosure.
- Intentional disclosure – limitation on scope of waiver – in a federal proceeding
- Acts as a waiver of the privilege
- Extends to undisclosed information if:
- Both sets of information concern the same subject; and
- Fairness requires disclosure of both
- Disclosure in a state proceeding does not act as a waiver in a later federal proceeding if:
- Would not have been a waiver in federal courts; or
- Was not a disclosure under state law
- Federal court must apply most protective law
Court order: A federal court may order that disclosure of a privileged communication is not a waiver for later proceedings
Parties’ Agreement: The parties’ agreement regarding disclosure only binds the parties, unless it is incorporated into a court order
Privilege - Physician-Patient
- Not privileged under common law
- Most states protect by statute, so long as communication is for medical treatment
- Patient holds the privilege; only patient can waive
- Situations where the privilege does NOT exist:
- Information was acquired for reasons other than treatment
Example 104: John Wilkes Booth goes to the doctor and says, “I have the measles, and I’m looking to kill Lincoln,” the latter half of the statement is not privileged.
* Patient’s physical condition is issue in the case
Example 105: A plaintiff is suing for damages for injuries from a car accident. Statements made to the plaintiff’s doctor regarding those injuries are not privileged because those injuries are at issue in the case.
* Communication was made as part of the commission of a crime or tort * A dispute exists between the physician and the patient * The patient contractually agreed to waive the privilege * A case is brought in federal court and state law does not apply. * What if an attorney sends a client to a doctor? Communication is not privileged unless treatment is being contemplated.
Example 106: JWB said to Dr. Mudd, “I broke my leg when I shot the president. I need you to fix my leg to escape.” This statement is not privileged because it relates to the commission of a crime or tort.
Privilege - Psychotherapist-Patient
- Federal courts and most states recognize this privilege.
- Made between a psychiatrist, psychologist, or licensed social worker and a patient
- Patient holds privilege, but psychotherapist must assert in patient’s absence
- This privilege does NOT exist if:
1) Patient’s mental condition is at issue
2) Communication was part of a court-ordered exam
3) Case is a commitment proceeding against the patient
* The psychotherapist-patient privilege is more widely recognized than the doctor-patient privilege.
Privilege - Self-Incrimination
5th Amendment Protection - Allows a witness to refuse to give testimony that may tend to incriminate him
- Only covers current testimony, not prior statements.
- Does not apply to physical characteristics or mannerisms
- Holder: Human beings – not corporation or other organizations
Comment
- Criminal case: A prosecutor cannot comment on a defendant’s failure to take the stand or suggest that the jury should draw a negative inference therefrom.
- Civil case: Opposing counsel can ask the jury to draw negative inferences from a witness’s claim of privilege.
Immunity
- A witness may be compelled to provide incriminating testimony if the government grants him immunity from prosecution.
- Transactional immunity: Protection regards entire transaction
- Use immunity: Protection only covers the compelled statements.
Note 20: The government is constitutionally required to offer “use” immunity, which prohibits only the use of the compelled testimony against the witness.
Example 107: David Herold can be compelled to testify at Booth’s trial without violating the 5th Amendment if the government offers him use immunity. Use immunity protects Herold from being prosecuted based on statements he makes about aiding and abetting Booth. Use immunity does not protect Herold from his other actions as a co-conspirator or other statements he makes during his testimony.
Exceptions
- If the government does prosecute the witness, government has the burden to show in a later proceeding that compelled testimony did not provide an investigative lead to the prosecution.
- No privilege if witness’s danger of incrimination has been removed (i.e., acquittal or conviction)
Privilege - Others
4.Clergy-Penitent
- A confidential communication made by a penitent to a member of the clergy is privileged.
- Holder? Penitent holds the privilege; clergy member asserts
5.Accountant-Client
- Not available at common law
- Many jurisdictions recognize this privilege by statute
- Operates similarly to the attorney-client privilege
6.Professional Journalist
- No federal privilege protecting a journalist’s source of information
- Some states have enacted statutes extending protection to journalists.
7.Governmental Privileges
- The government, at all levels, is privileged against disclosing the identity of an infomrant in a criminal case and the communication of official information by or to public officials.
Public Policy Exclusions - Subseq. Rem. Measure
- Prohibits admission of measures taken after injury or harm that make future injury less likely
- Inadmissible to prove negligence, a defective product or design, or culpable conduct.
Example 108: Mary Todd Lincoln is suing Ford’s Theater for inadequate security and locks. After the assassination, but before trial, Ford fixes the locks and adds security bars. The fact that he did that is not admissible to prove that Ford was negligent or that he was culpable.
- Admissible to show ownership/control of the property or for impeachment purposes.
Example 109: Mary Todd Lincoln is suing Ford’s Theater for inadequate security and locks. Ford denies that he owns the theater. Evidence that Ford fixed the locks and added security bars could be offered for impeachment or to show ownership.
Public Policy Exclusions - Compromise Offers/Negot.
- Offers, conduct, or statements made during negotiations are not admissible to prove a disputed claim, an amount, or for impeachment
- Exceptions
- Negotiations with governmental agencies (e.g., IRS) are admissible in a later criminal case
- Admissible to prove bias, obstruction, or to negate a claim of delay
Note 21: Evidence discussed in a negotiation is not protected from admission.
- A compromise is not admissible on behalf of any party (who participated in the compromise negotiations). If there are multiple parties and one settles, the agreement is not admissible.
