Short & Happy Guide Chapter 10: Privileges

Question 1

__________ provide the legal right to refuse to testify on certain matters or, to prevent someone else from testifying on certain matters.

Answer 1

Privileges

Question 2

The privileges also apply to documents as well. These are generally referred to as ________ ________.

Answer 2

Testimonial Privileges

Question 3

There are many kinds of ________ _______. Some are recognized at the federal level, some at the state level, and some at both.

Answer 3

Testimonial privileges

Question 4

In _______ cases, state law governs these privileges while federal law governs privileges in cases where jurisdiction is based on ________ _______.

Answer 4

Diversity

Federal question

Question 5

The FRE do not specifically set forth independent privileges, but they do contain rules that relate to, and recognize, certain privileges. True or False.

Answer 5

True

Question 6

Privilege in General.

What FRE?

Answer 6

501

Question 7

________ may arise at the federal and state levels.

Answer 7

Privileges

Question 8

At the ________ level, privileges are created by common law, federal statute, or the Constitution, which is recognized by FRE 501.

Answer 8

Federal level

Question 9

At the state level, rules are usually created by the State’s Supreme Court.

What does this refer to?

Answer 9

Privileges

Question 10

__________ are held by the individuals to whom they apply.

Answer 10

Privileges

Question 11

Privileges are held by the ________ to whom they apply.

Answer 11

Individuals

Question 12

Privileges are held by the individuals to whom they apply. It means that, for example, with the attorney-client privilege, the privilege belongs to the ______, not the _______.

Answer 12

Client

Attorney

Question 13

Privileges are held by the individuals to whom they apply. It means that, for example, with the attorney-client privilege, the privilege belongs to the client, not the attorney. This means that the client is the one who holds the ________ and may assert the _______.

Answer 13

Privilege

Privilege

Question 14

Assume that a client is discussing his case with his attorney. The client admits that he robbed the convenience store. The client “______” the privilege. This means that the attorney cannot reveal this information unless permitted by the client. It’s the client’s privilege. The attorney must, absent client consent, take the information to his grave. Of course there are exceptions to this too. But you will learn more about that in your professional responsibility course.

Answer 14

Owns

Question 15

For the privilege to apply, the ________ must be made in _________.

Answer 15

Communications

Confidence

Question 16

For the privilege to apply, the communications must be made in confidence. If you tell your lawyer, across a crowded restaurant, that you robbed the convenience store then there is no _________.

Some states recognize a _______ _______ that communications made in certain relationships are made in confidence. But- shouting across a crowded room would easily rebut the presumption of confidentiality.

Answer 16

Privilege

Rebuttable presumption

Question 17

Neither the lawyers nor the judge may ______ on the fact that a person exercised his or her privilege. For instance, in the presence of a jury, commenting on a person’s choosing not to testify so as not to possibly incriminate herself (5th Amendment) _________ constitute reversible error.

Answer 17

Comment

MAY

Question 18

________ may be waived — intentionally or otherwise.

Answer 18

Privileges

Question 19

Privileges may be waived - intentionally or otherwise. Here are ways in which someone may waive a privilege.
1. ?
2.
3.
4.

Answer 19

1. Failure to Claim a Privilege

Question 20

Privileges may be waived - intentionally or otherwise. Here are ways in which someone may waive a privilege.
1.
2. ?
3.
4.

Answer 20

2. Intentional Waiver

Question 21

Privileges may be waived - intentionally or otherwise. Here are ways in which someone may waive a privilege.
1.
2.
3. ?
4.

Answer 21

3. Written Agreement

Question 22

Privileges may be waived - intentionally or otherwise. Here are ways in which someone may waive a privilege.
1.
2.
3.
4. ?

Answer 22

4. Carelessness

Question 23

Ways in which someone may waive a privilege:

___________ to _______ a __________: When evidence which would otherwise be protected by the privilege is offered into evidence and no objection is made then the privilege is waived.

Answer 23

Failure to Claim a Privilege

Question 24

Ways in which someone may waive a privilege:
Failure to Claim a Privilege: When evidence which would otherwise be protected by the privilege, is offered into evidence and no ________ is made then the privilege is _________.

Answer 24

Objection

Waived

Question 25

Ways in which someone may waive a privilege:
_______ _______: Recall that the privilege is owned by the person to whom it applies. That person (i.e., the client) may waive the privilege. It belongs to the client to do with as she desires; therefore, she can waive it if she wants to.

Answer 25

Intentional Waiver

Question 26

Ways in which someone may waive a privilege:
Intentional Waiver: Recall that the privilege is owned by the person to whom it applies. That person (i.e., the client) may waive the privilege. It belongs to the client to do with as she desires; therefore, she can ______ it if she wants to.

Answer 26

Waive

Question 27

Ways in which someone may waive a privilege:
_______ _______: A person may waive her privilege, in advance, in writing.

Answer 27

Written Agreement

Question 28

Ways in which someone may waive a privilege:
Written Agreement: A person may waive her privilege, in advance, in ________.

Answer 28

Writing

Question 29

A party may inadvertently waive a privilege if the party is _________.

Answer 29

Careless

Question 30

A party may inadvertently waive a privilege if the party is careless. For example, in one case, a party did not take precautions to make sure that the documents he gave to his lawyer remained ________. Some of the papers were co-mingled with other documents that could be reviewed by a third-party. In that case, the court found that “if a client wishes to preserve the attorney- client privilege he must take some affirmative action to preserve __________.”

Answer 30

Confidential
Confidentiality

Question 31

What if someone overheard a communication that would, otherwise, be privileged? This is similar to the carelessness waiver previously discussed. If someone overhears information that would otherwise be privileged, the ________ __________ become the critical question.

Answer 31

Surrounding circumstances

Question 32

What if someone overheard a communication that would, otherwise, be privileged? This is similar to the carelessness waiver previously discussed. If someone overhears information that would otherwise be privileged, the surrounding circumstances become the critical question.

If the lawyer and the client (for example) take appropriate precautions to maintain _________, then the privilege would hold, and the client can prevent the person who heard the information from revealing it. On the other hand, if the conversation takes place at lunch in a crowded restaurant, then the privilege would likely be waived.

Answer 32

Confidentiality

Question 33

Commonly Recognized Privileges:
1. ?
2.
3.
4.
5.
6.
7.
8.
9.

Answer 33

1. Accountant- Client

Question 34

Commonly Recognized Privileges:
1.
2. ?
3.
4.
5.
6.
7.
8.
9.

Answer 34

2. Attorney- Client

Question 35

Commonly Recognized Privileges:
1.
2.
3. ?
4.
5.
6.
7.
8.
9.

Answer 35

3. Attorney- Work Product

Question 36

Commonly Recognized Privileges:
1.
2.
3.
4. ?
5.
6.
7.
8.
9.

Answer 36

4. Clergy-Penitent

Question 37

Commonly Recognized Privileges:
1.
2.
3.
4.
5. ?
6.
7.
8.
9.

Answer 37

5. Journalist

Question 38

Commonly Recognized Privileges:
1.
2.
3.
4.
5.
6. ?
7.
8.
9.

Answer 38

6. Physician- Patient

Question 39

Commonly Recognized Privileges:
1.
2.
3.
4.
5.
6.
7. ?
8.
9.

Answer 39

7. Psychotherapist/ Social Worker

Question 40

Commonly Recognized Privileges:
1.
2.
3.
4.
5.
6.
7.
8. ?
9.

Answer 40

8. Self-Incrimination

Question 41

Commonly Recognized Privileges:
1.
2.
3.
4.
5.
6.
7.
8.
9. ?

Answer 41

9. Spousal Privileges

Question 42

In diversity cases, state law governs privileges, in federal question cases, federal law governs.
1. Accountant- Client

Federal Common Law:
State Law:

Answer 42

Federal Common Law: Privilege NOT recognized
State Law: Privilege Usually Recognized

Question 43

In diversity cases, state law governs privileges, in federal question cases, federal law governs.
2. Attorney- Client

Federal Common Law:
State Law:

Answer 43

Federal Common Law: Privilege Recognized
State Law: Privilege Usually Recognized

Question 44

This privilege is the most common, most heavily used, most well-recognized (next to the 5th Amendment privilege) and certainly one of the most often tested.

Answer 44

2. Attorney- Client.

Question 45

There are certain requirements which, if met, permit the client to exercise the privilege. The United States Supreme Court has recognized the privilege, and, in fact, describes it as “the oldest of the privileges for confidential communications known to the common law.”

Answer 45

2. Attorney- Client

Question 46

The Supreme Court has not given us precise elements as to what is protected by the Attorney- Client privilege. However, many state courts have required these elements for the privilege to apply:
1. ?
2.
3.
4.

Answer 46

1. Legal advice of any kind is sought

Question 47

The Supreme Court has not given us precise elements as to what is protected by the Attorney- Client privilege. However, many state courts have required these elements for the privilege to apply:
1.
2. ?
3.
4.

Answer 47

2. From a legal professional in his or her capacity as such

Question 48

The Supreme Court has not given us precise elements as to what is protected by the Attorney- Client privilege. However, many state courts have required these elements for the privilege to apply:
1.
2.
3. ?
4.

Answer 48

3. The communication relates to that purpose; and

Question 49

The Supreme Court has not given us precise elements as to what is protected by the Attorney- Client privilege. However, many state courts have required these elements for the privilege to apply:
1.
2.
3.
4. ?

Answer 49

4. The communication is made in confidence

Question 50

This element might seem pretty simple. Usually, it is. You might think that the typical scenario is a client seeking advice from his lawyer in the lawyer’s office. However, legal advice can be sought under many different circumstances.

It could happen anywhere - even a bar.

But if you examine the fourth element the communication must be made in confidence the environment of the bar may undermine or destroy that element.

What does this refer to?

Answer 50

2. Attorney- Client Privilege

Element 1:
Legal Advice of Any Kind is Sought

Question 51

The privilege is limited to situations in which the attorney is acting as a legal advisor.

Business advice does not count, and is not protected. That is, giving business advice is not acting in the capacity of a legal professional.

What does this refer to?

Answer 51

2. Attorney- Client Privilege

Element 2:
From a Legal Professional in His or Her Capacity

Question 52

If you are discussing sports scores with your lawyer, then this communication is not protected.

What does this refer to?

Answer 52

2. Attorney- Client Privilege

Element 2:
From a Legal Professional in His or Her Capacity

Question 53

A communication between lawyer and client can consist of many kinds; those related to the client’s seeking of legal advice will be ________; those unrelated will not be __________.

Answer 53

protected

protected

Question 54

In the reference above, the attorney must be acting in his or her capacity as a legal professional. Here, the communication must relate to the purpose of seeking legal advice.

Sports statistics? Not so much; unless you are a sports agent, the scores are your client’s, and you are speaking to your client about his upcoming contract.

What does this refer to?

Answer 54

2. Attorney- Client Privilege

Element 3: The communication Relates to that Purpose

Question 55

The Communication must be made in confidence. Although not usually a problem, certain situations can create problems with confidentiality. Consider the client who brings in his or her spouse for support. If the spouse is not a client also, then oops we might have a breach of confidence. If the communication occurs in a crowded restaurant again, we might have a problem.

What does this refer to?

Answer 55

2. Attorney- Client Privilege

Element 4: The Communication is Made in Confidence

Question 56

What about personnel at law firms?

Communication to, or with, them does not breach the confidentiality requirement. Associates, para-professionals, and staff are all appropriate individuals to communicate with, and to be part of, any communication with clients. Without the protections extending to these individuals, the job of an attorney would be virtually impossible.

True or False.

Answer 56

True

Question 57

In diversity cases, state law governs privileges, in federal question cases, federal law governs.
3. Attorney- Work Product

Federal Common Law:
State Law:

Answer 57

Federal Common Law: Privilege Recognized

State Law: Privilege Usually Recognized

Question 58

For example, if he interviews a witness, the witness is not a client. Therefore, communication is not protected by the attorney- client privilege. However, the communication might be protected under the work product privilege because the attorney is performing work on behalf of her client.

What does this refer to?

Answer 58

3. Attorney- Work Product

Question 59

The United States Supreme Court has told us that _____ ______ is not subject to discovery except in the very rare circumstance where it is a necessity and cannot otherwise be obtained by other means.

Answer 59

work product

Question 60

In diversity cases, state law governs privileges, in federal question cases, federal law governs.
4. Clergy- Penitent

Federal Common Law:
State Law:

Answer 60

Federal Common Law: Privilege Recognized

State Law: Privilege Usually Recognized

Question 61

American _____ _____ compels the recognition of a clergy-penitent privilege.

The privilege between clergy and penitent is rooted in the imperative need for confidence and trust.

The privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return.

Answer 61

common law

Question 62

4. Clergy- penitent
   For a communication to be protected, and for the privilege to apply:
   a. ?
   b.
   c.

Answer 62

a. The communication must be made with a reasonable expectation of confidentiality

Question 63

4. Clergy- penitent
   For a communication to be protected, and for the privilege to apply:
   a.
   b. ?
   c.

Answer 63

b. The communication must be made to a member of the clergy; and

Question 64

4. Clergy- penitent
   For a communication to be protected, and for the privilege to apply:
   a.
   b.
   c. ?

Answer 64

c. The clergy must have been acting in his or her professional or spiritual capacity.

Question 65

A ______ member is a minister, priest, rabbi, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting him.

Answer 65

clergy

Question 66

The ________ may be claimed by the clergy member or by the penitent, the penitent’s guardian or conservator, or by the penitent’s personal representative if the penitent is deceased.

Answer 66

privilege

Question 67

The communication will be considered confidential if it was made privately, and if it was not ________ for further disclosure except to third-parties present in furtherance of, or essential to, the purpose of the communication.

In one case, a letter to a cleric was not subject to the privilege because there was no indication that it was _______ to be confidential, nor did the letter indicate that it was seeking religious counsel or spiritual advice, etc.

Answer 67

intended

intended

Question 68

The communication must be made in the clergy’s capacity as a _______ ______.

Answer 68

spiritual advisor

Question 69

Some examples of what NOT to do: A communication was made to a cleric (clergy) seeking help in avoiding taxes. This would not fall within the privilege. Yes, it really happened. In another case, a guy had an employee who happened to be a priest. His communications to his employee were not protected because the priest was not employed as a priest. !!

Answer 69

!!

Question 70

In diversity cases, state law governs privileges, in federal question cases, federal law governs.
5. Journalist

Federal Common Law:
State law:

Answer 70

Federal Common Law: Privilege Not Recognized

State Law: Privilege Usually Recognized

Question 71

At the federal level the Supreme Court has not recognized a privilege for a journalist’s sources. At the state level, some (but not all) jurisdictions have recognized a journalist’s privilege.

The privilege often has the following requirements:
a. ?
b.
c.

Answer 71

a. It may only be claimed by the journalist - not by another witness

Question 72

At the federal level the Supreme Court has not recognized a privilege for a journalist’s sources. At the state level, some (but not all) jurisdictions have recognized a journalist’s privilege.

The privilege often has the following requirements:
a.
b. ?
c.

Answer 72

b. The journalist need not be credentialed for an established press entity; and

Question 73

At the federal level the Supreme Court has not recognized a privilege for a journalist’s sources. At the state level, some (but not all) jurisdictions have recognized a journalist’s privilege.

The privilege often has the following requirements:
a.
b.
c. ?

Answer 73

c. The person acting as a journalist must have intended to gather the information for the purpose of dissemination and should independently seek the information (as opposed to serving or promoting the interests of another).

Question 74

Journalist: The Following Information is Protected By the Privilege
a. ?
b.

Answer 74

a. A journalist’s confidential sources

Question 75

Journalist: The Following Information is Protected By the Privilege
a.
b. ?

Answer 75

b. Potentially, a journalist’s non-confidential sources, depending on the circuit and the nature of the proceedings in which the privilege is invoked.

Question 76

Journalist: To assert the privilege:
a. ?
b.

Answer 76

a. The party claiming the privilege has the initial burden to prove that at the beginning of the investigation, she had intended to disseminate to the public the information obtained through the investigation; and

Question 77

Journalist: To assert the privilege:
a.
b. ?

Answer 77

b. The party claiming the privilege must do more than assert it; she must also provide the court with particularized allegations or facts that support the claim of privilege

Question 78

Journalist: To overcome the privilege:
a. ?
b.
(1)
(2)
(3)

Answer 78

a. A court must weigh the First Amendment concerns against the opposing need for disclosure in light of the facts of the case.

Question 79

Journalist: To overcome the privilege:
a.
b. ?
(1)
(2)
(3)

Answer 79

b. A three- part test for overcoming the privilege has been followed by many courts:

Question 80

Journalist: To overcome the privilege:
a.
b.
(1) ?
(2)
(3)

Answer 80

(1) Whether the information is relevant to the underlying cause of action

Question 81

Journalist: To overcome the privilege:
a.
b.
(1)
(2) ?
(3)

Answer 81

(2) Whether the information can be obtained by alternative means; and

Question 82

Journalist: To overcome the privilege:
a.
b.
(1)
(2)
(3) ?

Answer 82

(3) Whether there is a compelling interest in the information

Question 83

In diversity cases, state law governs privileges, in federal question cases, federal law governs.
6. Physician-patient

Federal Common Law:

State Law:

Answer 83

Federal Common Law: Privilege NOT recognized

State Law: Privilege Usually Recognized

Question 84

Although this privilege is not recognized by federal law, most state-court jurisdictions recognize some form of this privilege. The elements commonly used require the communication to be:
i. ?
ii.
iii.

Federal common law, however, protects a patient’s limited right to privacy regarding medical records.

Answer 84

i. Made to a medical professional (need not be an actual doctor)

Question 85

Although this privilege is not recognized by federal law, most state-court jurisdictions recognize some form of this privilege. The elements commonly used require the communication to be:
i.
ii. ?
iii.

Federal common law, however, protects a patient’s limited right to privacy regarding medical records.

Answer 85

ii. Acquired while attending to the patient; and

Question 86

Although this privilege is not recognized by federal law, most state-court jurisdictions recognize some form of this privilege. The elements commonly used require the communication to be:
i.
ii.
iii. ?

Federal common law, however, protects a patient’s limited right to privacy regarding medical records.

Answer 86

iii. Related to the treatment

Question 87

In diversity cases, state law governs privileges, in federal question cases, federal law governs.
7. Psychotherapist/ Social Worker

Federal Common Law:

State Law:

Answer 87

Federal Common Law: Privilege Recognized

State Law: Privilege Usually Recognized

Question 88

7. Psychotherapist/ Social Worker: Individuals have limited rights to refuse to disclose, and to prevent another person from disclosing confidential communications made to a psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of a psychotherapist, to diagnose or treat:
   i. ?
   ii.
   iii.

Answer 88

I. A mental condition;

Question 89

7. Psychotherapist/ Social Worker: Individuals have limited rights to refuse to disclose, and to prevent another person from disclosing confidential communications made to a psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of a psychotherapist, to diagnose or treat:
   i.
   ii. ?
   iii.

Answer 89

ii. An emotional condition

Question 90

7. Psychotherapist/ Social Worker: Individuals have limited rights to refuse to disclose, and to prevent another person from disclosing confidential communications made to a psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of a psychotherapist, to diagnose or treat:
   i.
   ii.
   iii. ?

Answer 90

iii. A drug addiction

Question 91

In diversity cases, state law governs privileges, in federal question cases, federal law governs.
8. Self-Incrimination (5th Amendment)

Federal Common Law:

State Law:

Answer 91

Federal Common Law: Privilege Recognized

State Law: Privilege Usually Recognized

Question 92

The privilege against _____ _______ is constitutional. Specifically, it is an absolute right provided by the 5th Amendment to the United States Constitution.

Answer 92

self- incrimination

Question 93

This means that a witness (any witness- not just a party) may refuse to answer any question which might elicit information that might subject him or her to criminal prosecution.

Additionally, a defendant in a criminal case may under this privilege refuse to take the stand at all and it cannot be legally held agains there for exercising this privilege.

What does this refer to?

Answer 93

5. Self- Incrimination (5th Amendment)

Question 94

This privilege always applies. That is, it can be claimed in any federal or state proceeding whether criminal or civil.

Answer 94

Self- Incrimination (5th Amendment)

Question 95

Testimony is considered _______ wen answers would support a conviction under a criminal statute and embraces those which would furnish a link in the chain of evidence needed to prosecute the witness for a crime.

Answer 95

incriminating

Question 96

In diversity cases, state law governs privileges, in federal question cases, federal law governs.
9. Spousal Privileges

Federal Common Law:
State Law:

Answer 96

Federal Common Law: Privilege Recognized

State Law: Privilege Usually Recognized

Question 97

Under federal common law, two types of spousal privileges exist:
a. ?
b.

Answer 97

a. The marital confidential-communiations privilege; and

Question 98

Under federal common law, two types of spousal privileges exist:
a.
b. ?

Answer 98

b. The spousal testimonial privilege

Question 99

The Marital Confidential Communications Privilege:
a. Generally
(1) ?
(2)
(3)

Answer 99

(1) Protects confidential communications between spouses

Question 100

The Marital Confidential Communications Privilege:
a. Generally
(1)
(2) ?
(3)

Answer 100

(2) Is held by both spouses

Question 101

The Marital Confidential Communications Privilege:
a. Generally
(1)
(2)
(3) ?

Answer 101

(3) Applies in both civil and cirminal cases

Question 102

Both spouses jointly hold this privilege and either spouse may refuse to disclose a ________ ________ made between the spouses while they were married. In some jurisdictions, the privilege also permits one spouse to prevent the other spouse from testifying as to the confidential communication.

Answer 102

confidential communication

Question 103

The Marital Confidential Communications Privilege:
b. The privilege has two elements. The communication must be made:
(1) ?
(2)

Answer 103

(1) During a valid marriage; and

Question 104

The Marital Confidential Communications Privilege:
b. The privilege has two elements. The communication must be made:
(1)
(2) ?

Answer 104

(2) in reliance upon the intimacy of the marital relationship

Question 105

The Marital Confidential Communications Privilege:
c. Waiver/ Inapplicability of the privilege:
(1) ?
(2)
(3)
(4)

Answer 105

(1) If the communication is made in the presence of a stranger, then the privilege will be waived;

Question 106

The Marital Confidential Communications Privilege:
c. Waiver/ Inapplicability of the privilege:
(1)
(2) ?
(3)
(4)

Answer 106

(2) The privilege does not apply in actions (lawsuits) between spouses (i.e., divorces).

Question 107

The Marital Confidential Communications Privilege:
c. Waiver/ Inapplicability of the privilege:
(1)
(2)
(3) ?
(4)

Answer 107

(3) The privilege does not apply in criminal cases against the testifying spouse; and

Question 108

The Marital Confidential Communications Privilege:
c. Waiver/ Inapplicability of the privilege:
(1)
(2)
(3)
(4) ?

Answer 108

(4) The privilege does not apply to actions against either of the spouse’s children (i.e., assault and battery, incest, bigamy, child abuse, child endangerment or neglect, etc.)

Question 109

iii. The Spousal Testimonial Privilege.
1. Generally
This privilege protects a ______ _____ ______. The defendant’s spouse may not be called, and cannot be compelled, to testify against the defendant in any criminal proceeding. In this context, “criminal proceeding” includes a grand jury proceeding.

Answer 109

married criminal defendant

Question 110

iii. The Spousal Testimonial Privilege.
2. To Whom Does the Privilege Belong?

In federal courts, the privilege is held by the ________-________ it is not held by the defendant. So, if the witness- spouse chooses not to invoke the privilege, then she may testify.

In state courts, the person holding the privilege may vary from jurisdiction to jurisdiction. It can be held only by the witness-spouse of, in some states, it can be held by both parties. Therefore, in the latter situation, the defendant could prevent the witness-spouse from testifying.

Answer 110

witness-spouse;

Question 111

iii. The Spousal Testimonial Privilege.
The privilege has two elements:
1. ?
2.

Answer 111

1. There must be a valid marriage; and

Question 112

iii. The Spousal Testimonial Privilege.
The privilege has two elements:
1.
2. ?

Answer 112

2. The privilege lasts only while the marriage is valid.