Short & Happy Guide Chapter 10: Privileges Flashcards
__________ provide the legal right to refuse to testify on certain matters or, to prevent someone else from testifying on certain matters.
Privileges
The privileges also apply to documents as well. These are generally referred to as ________ ________.
Testimonial Privileges
There are many kinds of ________ _______. Some are recognized at the federal level, some at the state level, and some at both.
Testimonial privileges
In _______ cases, state law governs these privileges while federal law governs privileges in cases where jurisdiction is based on ________ _______.
Diversity
Federal question
The FRE do not specifically set forth independent privileges, but they do contain rules that relate to, and recognize, certain privileges. True or False.
True
Privilege in General.
What FRE?
501
________ may arise at the federal and state levels.
Privileges
At the ________ level, privileges are created by common law, federal statute, or the Constitution, which is recognized by FRE 501.
Federal level
At the state level, rules are usually created by the State’s Supreme Court.
What does this refer to?
Privileges
__________ are held by the individuals to whom they apply.
Privileges
Privileges are held by the ________ to whom they apply.
Individuals
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 _______.
Client
Attorney
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 _______.
Privilege
Privilege
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.
Owns
For the privilege to apply, the ________ must be made in _________.
Communications
Confidence
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.
Privilege
Rebuttable presumption
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.
Comment
MAY
________ may be waived — intentionally or otherwise.
Privileges
Privileges may be waived - intentionally or otherwise. Here are ways in which someone may waive a privilege.
1. ?
2.
3.
4.
- Failure to Claim a Privilege
Privileges may be waived - intentionally or otherwise. Here are ways in which someone may waive a privilege.
1.
2. ?
3.
4.
- Intentional Waiver
Privileges may be waived - intentionally or otherwise. Here are ways in which someone may waive a privilege.
1.
2.
3. ?
4.
- Written Agreement
Privileges may be waived - intentionally or otherwise. Here are ways in which someone may waive a privilege.
1.
2.
3.
4. ?
- Carelessness
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.
Failure to Claim a Privilege
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 _________.
Objection
Waived
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.
Intentional Waiver
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.
Waive
Ways in which someone may waive a privilege:
_______ _______: A person may waive her privilege, in advance, in writing.
Written Agreement
Ways in which someone may waive a privilege:
Written Agreement: A person may waive her privilege, in advance, in ________.
Writing
A party may inadvertently waive a privilege if the party is _________.
Careless
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 __________.”
Confidential
Confidentiality
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.
Surrounding circumstances
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.
Confidentiality
Commonly Recognized Privileges:
1. ?
2.
3.
4.
5.
6.
7.
8.
9.
- Accountant- Client
Commonly Recognized Privileges:
1.
2. ?
3.
4.
5.
6.
7.
8.
9.
- Attorney- Client
Commonly Recognized Privileges:
1.
2.
3. ?
4.
5.
6.
7.
8.
9.
- Attorney- Work Product
Commonly Recognized Privileges:
1.
2.
3.
4. ?
5.
6.
7.
8.
9.
- Clergy-Penitent
Commonly Recognized Privileges:
1.
2.
3.
4.
5. ?
6.
7.
8.
9.
- Journalist
Commonly Recognized Privileges:
1.
2.
3.
4.
5.
6. ?
7.
8.
9.
- Physician- Patient
Commonly Recognized Privileges:
1.
2.
3.
4.
5.
6.
7. ?
8.
9.
- Psychotherapist/ Social Worker
Commonly Recognized Privileges:
1.
2.
3.
4.
5.
6.
7.
8. ?
9.
- Self-Incrimination
Commonly Recognized Privileges:
1.
2.
3.
4.
5.
6.
7.
8.
9. ?
- Spousal Privileges
In diversity cases, state law governs privileges, in federal question cases, federal law governs.
1. Accountant- Client
Federal Common Law:
State Law:
Federal Common Law: Privilege NOT recognized
State Law: Privilege Usually Recognized
In diversity cases, state law governs privileges, in federal question cases, federal law governs.
2. Attorney- Client
Federal Common Law:
State Law:
Federal Common Law: Privilege Recognized
State Law: Privilege Usually Recognized
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.
- Attorney- Client.
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.”
- Attorney- Client
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.
- Legal advice of any kind is sought
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.
- From a legal professional in his or her capacity as such
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.
- The communication relates to that purpose; and
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. ?
- The communication is made in confidence
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?
- Attorney- Client Privilege
Element 1:
Legal Advice of Any Kind is Sought
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?
- Attorney- Client Privilege
Element 2:
From a Legal Professional in His or Her Capacity
If you are discussing sports scores with your lawyer, then this communication is not protected.
What does this refer to?
- Attorney- Client Privilege
Element 2:
From a Legal Professional in His or Her Capacity
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 __________.
protected
protected
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?
- Attorney- Client Privilege
Element 3: The communication Relates to that Purpose
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?
- Attorney- Client Privilege
Element 4: The Communication is Made in Confidence
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.
True
In diversity cases, state law governs privileges, in federal question cases, federal law governs.
3. Attorney- Work Product
Federal Common Law:
State Law:
Federal Common Law: Privilege Recognized
State Law: Privilege Usually Recognized
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?
- Attorney- Work Product
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.
work product
In diversity cases, state law governs privileges, in federal question cases, federal law governs.
4. Clergy- Penitent
Federal Common Law:
State Law:
Federal Common Law: Privilege Recognized
State Law: Privilege Usually Recognized
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.
common law
- Clergy- penitent
For a communication to be protected, and for the privilege to apply:
a. ?
b.
c.
a. The communication must be made with a reasonable expectation of confidentiality
- Clergy- penitent
For a communication to be protected, and for the privilege to apply:
a.
b. ?
c.
b. The communication must be made to a member of the clergy; and
- Clergy- penitent
For a communication to be protected, and for the privilege to apply:
a.
b.
c. ?
c. The clergy must have been acting in his or her professional or spiritual capacity.
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.
clergy
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.
privilege
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.
intended
intended
The communication must be made in the clergy’s capacity as a _______ ______.
spiritual advisor
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. !!
!!
In diversity cases, state law governs privileges, in federal question cases, federal law governs.
5. Journalist
Federal Common Law:
State law:
Federal Common Law: Privilege Not Recognized
State Law: Privilege Usually Recognized
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.
a. It may only be claimed by the journalist - not by another witness
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.
b. The journalist need not be credentialed for an established press entity; and
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. ?
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).
Journalist: The Following Information is Protected By the Privilege
a. ?
b.
a. A journalist’s confidential sources
Journalist: The Following Information is Protected By the Privilege
a.
b. ?
b. Potentially, a journalist’s non-confidential sources, depending on the circuit and the nature of the proceedings in which the privilege is invoked.
Journalist: To assert the privilege:
a. ?
b.
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
Journalist: To assert the privilege:
a.
b. ?
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
Journalist: To overcome the privilege:
a. ?
b.
(1)
(2)
(3)
a. A court must weigh the First Amendment concerns against the opposing need for disclosure in light of the facts of the case.
Journalist: To overcome the privilege:
a.
b. ?
(1)
(2)
(3)
b. A three- part test for overcoming the privilege has been followed by many courts:
Journalist: To overcome the privilege:
a.
b.
(1) ?
(2)
(3)
(1) Whether the information is relevant to the underlying cause of action
Journalist: To overcome the privilege:
a.
b.
(1)
(2) ?
(3)
(2) Whether the information can be obtained by alternative means; and
Journalist: To overcome the privilege:
a.
b.
(1)
(2)
(3) ?
(3) Whether there is a compelling interest in the information
In diversity cases, state law governs privileges, in federal question cases, federal law governs.
6. Physician-patient
Federal Common Law:
State Law:
Federal Common Law: Privilege NOT recognized
State Law: Privilege Usually Recognized
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.
i. Made to a medical professional (need not be an actual doctor)
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.
ii. Acquired while attending to the patient; and
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.
iii. Related to the treatment
In diversity cases, state law governs privileges, in federal question cases, federal law governs.
7. Psychotherapist/ Social Worker
Federal Common Law:
State Law:
Federal Common Law: Privilege Recognized
State Law: Privilege Usually Recognized
- 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.
I. A mental condition;
- 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.
ii. An emotional condition
- 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. ?
iii. A drug addiction
In diversity cases, state law governs privileges, in federal question cases, federal law governs.
8. Self-Incrimination (5th Amendment)
Federal Common Law:
State Law:
Federal Common Law: Privilege Recognized
State Law: Privilege Usually Recognized
The privilege against _____ _______ is constitutional. Specifically, it is an absolute right provided by the 5th Amendment to the United States Constitution.
self- incrimination
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?
- Self- Incrimination (5th Amendment)
This privilege always applies. That is, it can be claimed in any federal or state proceeding whether criminal or civil.
Self- Incrimination (5th Amendment)
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.
incriminating
In diversity cases, state law governs privileges, in federal question cases, federal law governs.
9. Spousal Privileges
Federal Common Law:
State Law:
Federal Common Law: Privilege Recognized
State Law: Privilege Usually Recognized
Under federal common law, two types of spousal privileges exist:
a. ?
b.
a. The marital confidential-communiations privilege; and
Under federal common law, two types of spousal privileges exist:
a.
b. ?
b. The spousal testimonial privilege
The Marital Confidential Communications Privilege:
a. Generally
(1) ?
(2)
(3)
(1) Protects confidential communications between spouses
The Marital Confidential Communications Privilege:
a. Generally
(1)
(2) ?
(3)
(2) Is held by both spouses
The Marital Confidential Communications Privilege:
a. Generally
(1)
(2)
(3) ?
(3) Applies in both civil and cirminal cases
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.
confidential communication
The Marital Confidential Communications Privilege:
b. The privilege has two elements. The communication must be made:
(1) ?
(2)
(1) During a valid marriage; and
The Marital Confidential Communications Privilege:
b. The privilege has two elements. The communication must be made:
(1)
(2) ?
(2) in reliance upon the intimacy of the marital relationship
The Marital Confidential Communications Privilege:
c. Waiver/ Inapplicability of the privilege:
(1) ?
(2)
(3)
(4)
(1) If the communication is made in the presence of a stranger, then the privilege will be waived;
The Marital Confidential Communications Privilege:
c. Waiver/ Inapplicability of the privilege:
(1)
(2) ?
(3)
(4)
(2) The privilege does not apply in actions (lawsuits) between spouses (i.e., divorces).
The Marital Confidential Communications Privilege:
c. Waiver/ Inapplicability of the privilege:
(1)
(2)
(3) ?
(4)
(3) The privilege does not apply in criminal cases against the testifying spouse; and
The Marital Confidential Communications Privilege:
c. Waiver/ Inapplicability of the privilege:
(1)
(2)
(3)
(4) ?
(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.)
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.
married criminal defendant
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.
witness-spouse;
iii. The Spousal Testimonial Privilege.
The privilege has two elements:
1. ?
2.
- There must be a valid marriage; and
iii. The Spousal Testimonial Privilege.
The privilege has two elements:
1.
2. ?
- The privilege lasts only while the marriage is valid.
