Testimonial Privileges

Question 1

Spousal Privileges

Answer 1

1. Spousal-immunity

Shields witness-spouse from testifying against spouse in criminal case about matters that occurred before or during marriage.

a) Privilege held by Witness-spouse
b) Duration: only during active marriage.
2. Martial-Communications

Protects against disclosure of confidential spousal communications made during marriage in criminal & civil cases.

a) Privilege held by both spouses.
b) Duration: continues after divorce
c) Under the majority view, either spouse may assert the privilege—even after termination of the marriage—and:
i) refuse to testify about the communication OR
ii) prevent the other spouse from testifying about the communication.

Question 2

Waiving Attorney-Client Privilege

Answer 2

1. Waiver

Only client can waive privilege by:

i) voluntarily disclosing information to third party
ii) voluntarily giving up privilege (eg, contractually)
iii) failing to timely claim privilege (eg, after inadvertent disclosure)
iv) failing to object to another’s disclosure of confidential information
2. No waiver

Privilege not waived by:

i) client’s death
ii) termination of attorney-client relationship

Question 3

Attorney-client Privilege

Answer 3

The attorney-client privilege protects communications between an attorney and a client that were:

(1) made for the purpose of obtaining legal advice or representation AND
(2) intended to be and kept confidential.

A communication is confidential if the circumstances indicate an intention of secrecy between the client and the attorney.

• This means that a communication is not confidential if the client voluntarily shares it with a third party

Question 4

When the court is deciding preliminary questions of fact related to whether evidence is admissible, a privilege exists, or a witness is qualified, when must the hearing on any of these matters be conducted outside the jury’s presence?

Answer 4

The court must decide preliminary questions of fact related to whether evidence is admissible, a privilege exists, or a witness is qualified.

Any hearing on these matters must be conducted outside the jury’s presence if

(1) the matter involves the admissibility of a confession,
(2) a defendant in a criminal case is a witness and so requests, OR
(3) justice so requires.

Question 5

Marital communication privilege vs. spousal immunity privilege

Answer 5

The marital-communications privilege protects confidential communications during the marriage from disclosure in a civil or criminal case.

• statements that overheard by a spouse are not considered communications between spouses.

In contrast, the spousal-immunity privilege protects persons from being required to testify against their spouse in a criminal case about events that occurred before or during the marriage.

• A person can be called by the prosecution as a witness against his/her spouse in a criminal case. But the witness-spouse, as the sole holder of the spousal-immunity privilege, can choose whether to testify—even over the defendant-spouse’s objection

Question 6

Federal Inadvertant Waiver Rule

What does it apply to?

Answer 6

The federal inadvertent waiver rule (Federal Rule 502) applies to the disclosure of information covered by:

1) the attorney work-product protection as well as

2) communications covered by the attorney-client privilege.