Testimonial Privileges

Question 1

In a federal court case arising under federal substantive law, privileges are governed by [federal common law / state law].

Answer 1

Federal common law

Question 2

Federal substantive law includes which kinds of cases?

Answer 2

All civil cases arising under the Constitution or federal statutes, and all criminal cases

Question 3

In a federal court case based on diversity jurisdiction, where state substantive law applies to parties’ claims and defenses, the federal court must apply [federal common law / state law] when considering testimonial privilege.

Answer 3

State law

Question 4

Name the 7 kinds of privilege recognized by federal common law.

Answer 4

(1) Attorney-client privilege
(2) Spousal testimonial privilege
(3) Confidential marital communications privilege
(4) Psychotherapist/social worker-client privilege
(5) Clergy-penitent privilege
(6) Governmental privileges
(7) Privilege against self-incrimination

Question 5

Who may assert a testimonial privilege?

Answer 5

Generally, any testimonial privilege may only be asserted by the person holding the privilege. In some cases, the person with whom the confidence was shared may assert the privilege on the holder’s behalf.

Question 6

True or false: To be privileged, a communication must be shown or presumed to have been made in confidence (meaning, not intended to be disclosed to third parties).

Answer 6

True

Question 7

True or false: Counsel for the parties and the judge may comment on someone’s claim of privilege at trial.

Answer 7

False

Question 8

Any privilege is waived by:

Answer 8

(1) Failure to claim the privilege;
(2) Voluntary disclosure of the privileged matter by the privilege holder; or
(3) A contractual provision waiving in advance the right to claim a privilege

Question 9

A privilege based on confidential communications is [destroyed / not destroyed] because it was overheard by someone whose presence is unknown to the parties.

Answer 9

Not destroyed

Question 10

The attorney-client privilege applies to:

Answer 10

(1) Confidential communications,
(2) Between attorney and client (or representatives of either),
(3) Made during professional legal consultation,
(4) Unless the privilege is waived or an exception is applicable

Question 11

True or false: Disclosures made before an attorney accepts or declines a case are covered by the attorney-client privilege.

Answer 11

True

Question 12

A privilege is [waived / not waived] when someone wrongfully discloses information without the privilege-holder’s consent.

Answer 12

Not waived

Question 13

A waiver by one joint holder [affects / does not affect] the right of the other holder to assert the privilege.

Answer 13

Does not affect

Question 14

Statements made by corporate officials or employees to an attorney are protected if:

Answer 14

The employees were were authorized or directed by the corporation to make such statements.

Question 15

True or false: The attorney client-privilege only applies to communications.

Answer 15

True

Question 16

True or false: The attorney-client privilege applies to underlying information, pre-existing documents, and physical evidence.

Answer 16

False

Question 17

True or false: Communications made in the known presence and hearing of a stranger are protected by the attorney-client privilege.

Answer 17

False

Question 18

True or false: Representatives of an attorney or the attorney’s client may be present without destroying the privilege.

Answer 18

True

Question 19

True or false: The attorney-client privilege applies if the client reasonably believes the attorney is a member of the bar, even if the attorney is not.

Answer 19

True

Question 20

Communications made to third persons (such as administrative assistants, messengers, or accountants) are confidential and covered by the attorney-client privilege if:

Answer 20

The communications are necessary to transmit information between attorney and client

Question 21

HYPO: Delbert is sued for his alleged negligence in an auto accident. He tells his attorney what happened and gives her the cell phone with which he was making a call at the time of the accident. Before trial, Delbert is deposed by plaintiff’s counsel:

(1) Must Delbert respond if asked, “What did you tell your attorney about the accident?”
(2) Must Delbert respond if asked, “Describe what you were doing at the time of the accident?”
(3) If served with a subpoena, must Delbert’s attorney produce Delbert’s cell phone?

Answer 21

(1) No. This is protected by the attorney-client privilege.
(2) Yes. The underlying facts of the accident are not protected by the attorney-client privilege.
(3) Yes. Physical evidence is not protected by the attorney-client privilege.

Question 22

HYPO: Client visits Doctor at Attorney’s request to help Attorney evaluate the extent of Client’s injuries. Will communications between Client and Doctor be privileged under (1) the physician-patient privilege? (2) The attorney-client privilege?

Answer 22

(1) No. Because the visit was not for the purposes of treatment, the physician-patient privilege will not apply.
(2) Yes. The visit was necessary to transmit information between Attorney and Client, so those communications will be protected even though it was between Client and Doctor.

Question 23

State the rule regarding joint clients for the purposes of the attorney-client privilege.

Answer 23

If 2 or more clients with a common interest consult the same attorney, their communications with the attorney concerning the common interest are privileged as to third parties.

If the joint clients later have a dispute with each other concerning the common interest and one client sues the other, the privilege does not apply as between them.

Question 24

True or false: For the attorney-client privilege to apply, the primary purpose of the communication may include business advice or social advice in addition to obtaining or rendering legal services.

Answer 24

False. The primary purpose must be to obtain or render legal services.

Question 25

(1) Who holds the attorney-client privilege?
(2) Who may claim it?
(3) Who may waive it?

Answer 25

(1) The client
(2) Both the client, and the attorney on the client’s behalf absent contrary evidence
(3) Only the client (or the client’s estate representative after the client’s death)

Question 26

How long does the attorney-client privilege apply?

Answer 26

Indefinitely. It continues after the attorney-client relationship ends and even after the client’s death.

Question 27

Situations in which the attorney-client privilege does not apply:

Answer 27

(1) If the attorney’s services were sought to aid in the planning or commission of something the client should have known was a crime or fraud (e.g., a client asks their attorney to help them disguise bribes to look like legitimate business expenses)
(2) Where the client has put the legal services at issue in the case (e.g., a tax fraud defendant claims reliance on advice of their attorney)
(3) For a communication relevant to an issue of breach of duty in a dispute between attorney and client (e.g., an attorney sues a client for unpaid fees, or a client sues an attorney for malpractice)
(4) Regarding a communication relevant to an issue between parties claiming through the same deceased client

Question 28

True or false: Documents prepared by an attorney for their own use in a case are protected by the attorney-client privilege.

Answer 28

False

Question 29

True or false: Documents prepared by an attorney for their own use in a case are not subject to discovery (except in cases of necessity).

Answer 29

True

Question 30

Generally, a voluntary disclosure of privileged material operates as a waiver of the attorney-client privilege or work product protection only with respect to the disclosed material. Undisclosed attorney-client privileged material is subject to waiver only if:

Answer 30

(1) The waiver was unintentional,
(2) The disclosed and undisclosed material concern the same subject matter, and
(3) The material should be considered together to avoid unfairness

Question 31

True or false: There is no waiver of the attorney-client privilege in the event of disclosure if the disclosure was inadvertent and the holder took reasonable steps to prevent disclosure and rectify the error.

Answer 31

True

Question 32

Confidential information acquired by a physician is privileged if:

Answer 32

(1) There was a professional relationship between the physician and patient for the purposes of medical treatment;
(2) The information was acquired for the purpose of diagnosis or treatment; and
(3) The information was necessary for diagnosis or treatment

Question 33

(1) Who holds the physician-patient privilege?
(2) Who may claim it?
(3) Who may waive it?

Answer 33

(1) The patient
(2) Both the patient, and the physician if the patient is unavailable at the time of trial
(3) Only the patient

Question 34

The physician-patient privilege does not apply (or is impliedly waived) if:

Answer 34

(1) The patient puts their physical condition in issue (e.g., in a personal injury lawsuit)
(2) The physician’s assistance was sought to aid wrongdoing (e.g., to help the patient commit a crime or tort);
(3) The communication is relevant to an issue of breach of duty in a dispute between the physician and patient (e.g., a medical malpractice case);
(4) The patient agreed by contract to waive the privilege (e.g., in an insurance policy); or
(5) It is a federal case applying the federal common law of privilege

Question 35

HYPO: Doctor examines Patient’s lungs in hospital room while Visitor is present. (a) Patient tells Doctor, “Do you suppose my wheezing is due to the 4 packs of cigarettes I smoke every day?” (b) After Visitor leaves, Patient says to Doctor, “Know any good lawyers? I haven’t paid my income taxes in 3 years.”

(1) In state court action in which the condition of Patient’s lungs is an issue, could Doctor be compelled to disclose statement (a)?
(2) In prosecution for income tax evasion, could Doctor be compelled to disclose statement (b)?

Answer 35

(1) Yes. Though the communication related to treatment, there was no confidentiality because of Visitor’s presence, so the privilege was destroyed.
(2) Yes. The information about tax evasion was not communicated for the purpose of diagnosis or treatment.

Question 36

What is the key difference between the physician-patient privilege and the psychotherapist/social worker-client privilege?

Answer 36

The psychotherapist/social worker-client privilege applies under federal common law and in most states, while the physician-patient privilege is not federally recognized.

Question 37

What are the key characteristics of the spousal testimonial (spousal immunity) privilege?

Answer 37

(1) Applies only in criminal cases
(2) A married person whose spouse is a criminal defendant may not be called as a witness
(3) A married person may not be compelled to testify against the legal interests of their spouse in any criminal proceeding, regardless of whether the spouse is a defendant
(4) There must be a valid, existing marriage at the time of trial
(5) The privilege lasts only during the marriage (even if the events at issue took place before the marriage)
(6) Federal and state court

Question 38

In federal court:

(1) Who holds the spousal immunity privilege?
(2) Who may claim it?
(3) Who may waive it?

Answer 38

(1) The witness-spouse
(2) The witness-spouse
(3) The witness-spouse

Question 39

What are the key characteristics of the confidential martial communications privilege?

Answer 39

(1) Applies in both civil and criminal cases
(2) Communications must be confidential
(3) Either spouse can refuse to disclose the communication OR prevent the other spouse from doing so
(4) The marital relationship must exist when the communication is made
(5) Divorce does not terminate the privilege
(6) Communications after divorce are not protected
(7) Federal and state court

Question 40

True or false: Treats and abusive language are protected by the confidential martial communications privilege.

Answer 40

False

Question 41

Neither spousal immunity privilege nor confidential marriage communications privilege apply in these situations:

Answer 41

(1) Communications or acts in furtherance of a future joint crime or fraud;
(2) In legal actions between the spouses; or
(3) In cases where a spouse is charged with a crime against the testifying spouse or either spouse’s children

Question 42

HYPO: Niles is prosecuted for the murder of his brother Frazier. Niles and Daphne are a married couple. Niles comes home on the night of Frazier’s demise wearing a blood-stained Armani topcoat, which Daphne observed.

(1) At trial, the prosecutor calls Daphne to the stand to testify to her observations about Niles’s topcoat, but she refuses to testify. The prosecutor seeks to compel her testimony. Result?
(2) Assume Daphne is willing to testify against Niles. In addition to the topcoat observation, she seeks to testify to the following: “Niles told me when he got home that he stabbed Frazier.” Niles objects. Result?

Answer 42

(1) This is a criminal case, so the spousal immunity privilege applies, and Daphne may not be compelled to testify against Niles.
(2) Objection will be sustained. Daphne can properly waive the spousal immunity privilege to testify, but Niles can claim the confidential marital communications privilege to prevent Daphne from testifying as to anything he said to her.

Question 43

HYPO: Niles is prosecuted for the murder of his brother Frazier. Niles and Daphne are a married couple. Niles comes home on the night of Frazier’s demise wearing a blood- stained Armani topcoat, which Daphne observed. Daphne divorces Niles before his case goes to trial. The prosecutor calls her to the stand.

(1) Can Daphne be compelled to testify to her observations about Niles’s topcoat?
(2) Can Niles prevent Daphne from disclosing his admission to her about stabbing Frazier?

Answer 43

(1) Yes. The spousal immunity privilege only applies while the marriage exists. Because they are no longer married, Daphne may be compelled to testify.
(2) Yes. The confidential marriage communications privilege is not destroyed by divorce. Because the communications occurred while they were married, he may claim the privilege to prevent her from testifying as to anything he said while they were married.

Question 44

Explain the clergy-penitent privilege.

Answer 44

Federal courts and many states recognize a privilege for statements made to a member of the clearly. The elements are similar to those of the attorney-client privilege.

Question 45

Explain the privilege against self-incrimination.

Answer 45

Under the Fifth Amendment, a witness cannot be compelled to testify against themselves. Any witness compelled to appear in a civil or criminal proceeding may refuse to give an answer that ties the witness to the commission of a crime.

Question 46

Explain governmental privileges, broadly.

Answer 46

Official information not otherwise open to the public may be privileged.

The government also holds a privilege that protects the identity of an informer. The privilege is waived if the informer’s identity is voluntarily disclosed by a privilege holder (an appropriate government representative).

Question 47

Explain the accountant-client privilege.

Answer 47

Many states recognize a privilege for statements made to an accountant. The elements of this privilege are similar to the attorney-client privilege.

Question 48

Explain the professional journalist privilege.

Answer 48

Some states recognize a right for a professional journalist to protect their sources of information.