Testimonial Evidence: Privileges

Question 1

Applicable Law

Answer 1

State court applying state law or federal court applying state law (diversity): state law applies
Federal law applies: federal common law applies (includes atty-client, spousal immunity, marital commcns, psychotherapist/social worker, clergy-penitent)

Question 2

Attorney Client Privilege

Answer 2

CONFIDENTIAL COMMC’NS between atty and client (or a rep of either) made during professional legal consultation are privileged from disclosure unlesss waived by client or an exception applies; survives client’s death

• Client must intend confidentiality
• *Doesn’t cover physical evidence or observations, just commc’ns
• **Client must intend to have a legal relationship

Question 3

Joint Client Rule

Answer 3

If 2 or more clients with common interst consult the same atty, their communications w counsel about the common interest are privileged as to 3Ps, but if they have a dispute about the common interest, privilege lifts

Question 4

Exceptions to attorney-client privliege

Answer 4

future crime or fraud, client makes an issue of legal advice, dispute between attorney and client

Question 5

Effect of eavesdroppers

Answer 5

Privilege based on confidential communications isnt abrogated because the commcn is overheard by someone whose presence is unknown (eavesdropper)

Question 6

Spousal Immunity

Answer 6

One spouse cannot be forced to give adverse testimony against the other in a CRIMINAL CASE; privilege belongs to the TESTIFYING spouse; privilege only applies if spouses are married at the time of trial, but applies to matters that predate the marriage

Question 7

Confidential Marital Communications Privilege

Answer 7

Spouse is not required and is not allowed, without other spouse’s consent, to disclose a confidential communication made by one to the other during the marriage in ANY case; BOTH spouses hold privilege; protects only confidences (not observations); applies only to commcns DURING marriag

Question 8

Exceptions to Marital Privileges

Answer 8

Commcns or acts in furtherance of future crime or fraud (Bonnie and Clyde), commcns or acts destructive of family (e.g., DV or child abuse), one spouse suing the other

Question 9

Psychotherapist/social worker-client privilege

Answer 9

Client has a privilege against disclosure of CONFIDENTIAL info acquired by psychotherapist or social worker in a professional relationship entered into for the PURPOSE of getting treatment; waived if client pleads insanity

Question 10

Physician-Patient Privilege (not adopted in all jx)

Answer 10

Physician foreclosed from divulging info acquired while attending a patient in a professional capacity that was necessary to enable physician to act in his professional capacity

Question 11

Clergy-Penitent Privliege

Answer 11

A person has a privilege to refuse to disclose and to prevent others from disclosing a confidential commcn by the person to a member of the clergy in the clergy member’s capacity as a spiritual adviser