Privileges and Procedure

Question 1

Attorney-Client Privilege

Answer 1

Confidential (client must intend confidentiality)

Communications (privilege does not apply to underlying information, pre-existing documents, or physical evidence)

Between an attorney and a client (or a representative of either)

Made during professional legal consultation (primary purpose of the communications must be to obtain or render legal services)

Privilege belongs to the client and survives the termination of the relationship and even death. The only exceptions are for future crimes or fraud, if the client puts the legal advice at issue, or if there is an attorney-client dispute.

Question 2

Joint Client Rule

Answer 2

If two or more clients with common interest consult the same attorney, their communication with counsel concerning the common interest are privileged as to third parties. But if the joint clients later have a dispute with each other concerning the common interest, privilege does not apply between them.

Question 3

Representative of the Client

Answer 3

Agent reasonably necessary to facilitate the provision of legal services.

Question 4

Physician-Patient Privilege

Answer 4

Confidential communication or information obtained by physician from patient

For the purpose of diagnosis or treatment of medical condition

Applies to therapists and counselors who diagnose or treat mental illness.

In federal court, only applies to mental health, not physical health.

Privilege does not apply if the patient expressly or impliedly puts physical or mental condition at issue.

Question 5

Spousal Immunity

Answer 5

In criminal cases only,

A spouse cannot be compelled to testify against the defendant spouse

The witness holds the privilege and can testify willingly. Also, this privilege is terminated by divorce. It does not apply to communications or acts in furtherance of fraud or future crimes or communications or acts destructive of the familial unit (i.e. child or spousal abuse).

Question 6

Confidential Communication Between Spouses

Answer 6

In any type of case, a spouse is not allowed to disclose the confidential communications made during marriage without the consent of the other spouse.

This privilege survives divorce. It does not apply to communications or acts in furtherance of fraud or future crimes or communications or acts destructive of the familial unit (i.e. child or spousal abuse).

Question 7

Judicial Notice

Answer 7

The recognition of a fact as true without formal presentation of evidence. A court may judicially note a fact that is not subject to reasonable dispute because the fact is:

generally known within the trial court’s jurisdiction

can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned

In civil cases, the jury must accept a judicially noticed fact as conclusive. In criminal cases, the judge should instruct the jury that they may but are not required to accept the judicially noticed fact.

Question 8

Presumptions

Answer 8

A rule that requires a particular inference to be drawn from an ascertained set of facts.

In civil cases, presumption is destroyed when the adversary produces evidence to rebut it.

In criminal cases, the defendant does not need to produce evidence to rebut a presumption because there are no mandatory presumptions against criminal defendants.

Question 9

Limited Admissibility

Answer 9

Allows the court to admit the evidence to be used for one purpose but not for another. If the court does this, it must also, upon timely request, issue a limiting instruction.

Question 10

Other Privileges

Answer 10

Clergy-penitent

Accountant-client

Professional journalist

Governmental privileges