Testimonial Privileges

Question 1

Are testimonial privileges in the FRE?

Answer 1

No. Recognized by federal courts but not FRE rules

Question 2

Testimonial Privileges: Self-Incrimination (General)

Answer 2

Under 5th Amend, W cannot be compelled to privide self-incriminating testimony in either civil or criminal cases

• W may invoke privilege if there is a reasonable possibility of self-incrimination

Question 3

Testimonial Privileges: Self-Incrimination (Civil Cases)

Answer 3

Jury may draw an adverse inference from W’s assertion of 5th Amend privilege

Question 4

Testimonial Privileges: Self-Incrimination (Criminal Cases)

Answer 4

D cannot be punished for invoking privilege

Question 5

Attorney-Client Privilege: General

Answer 5

Communications between an attorney and client are privileged in ALL proceedings unless waived

• If organizational client, privilege applies to any employee authorized to speak to attorney

Question 6

Attorney-Client Privilege: Requirements for Protection

Answer 6

A communication must be:

• intended to be confidential and
• made to facilitate legal services

Question 7

Attorney-Client Privilege: Exceptions

Answer 7

Privilege does NOT apply:

• if client seeks legal services to aid in planning or commission of crime or fraud
• if communication relates to an alleged breach of attorney’s duty

Question 8

Attorney-Client Privilege: Joint Representatives of Parties in Lawsuit

Answer 8

Where an attorney acts for both parties in a transaction, no privilege can be invoked between them, BUT can be invoked against a third party

Question 9

Attorney-Client Privilege: Fees

Answer 9

Records of fee payments, including fee arrangements and payments, are not covered

Question 10

Doctor-Patient Privilege: Recognition

Answer 10

Not recognized by FRE, but recognized and applied in most federal courts on basis of state law

Question 11

Doctor-Patient Privilege: Requirements

Answer 11

To be protected, communication must be:

• Made for purposes of obtaining diagnosis or treatment
• Pertinent to diagnosis or treatment, and
• Intended by the patient to be confidential

Question 12

Doctor-Patient Privilege: Exceptions

Answer 12

Privilege does not apply where:

• Patient’s condition is a legal issue (e.g. personal injury)
• Physician’s services were sought in aid of crime, tort, or to escape capture, or
• Dispute between doctor and patient (e.g. malpractice)

Question 13

Therapist-Client Privilege

Answer 13

Privileged in all civil or criminal cases if:

• Client intends communication to be confidential, and
• Communication is made to facilitate therapy or social work
• In most ways, operates similar to attorney-client privilege

Question 14

Spousal Testimonial Privilege: Definition

Answer 14

A person whose spouse is a D in a CRIMINAL case cannot be:

• called as a witness by the prosecution, or
• compelled to testify against their spouse in a CRIMINAL proceeding

Question 15

Spousal Testimonial Privilege: Who can invoke?

Answer 15

Only the witness-spouse may invoke the privilege

D cannot prevent a willing spouse from testifying against them

Question 16

Spousal Testimonial Privilege: When can it be invoked?

Answer 16

Privilege can only be invoked during marriage

Question 17

Marital Communications Privilege: Definition

Answer 17

Confidential communications made during marriage are privileged in any later CIVIL or CRIMINAL proceeding

Question 18

Marital Communications Privilege: Who can invoke?

Answer 18

Either spouse may invoke the privilege

Question 19

Marital Communications Privilege: When can it be invoked?

Answer 19

Can be invoked during marriage or after divorce if confidential communication was made during marriage

Question 20

Marital Communications Privilege: Loss of Privilege

Answer 20

A spouse can lose the privilege if they break confidentiality (i.e. relay a marital communication to a third party)

• The other spouse still retains the privilege

Question 21

Marital Communications Privilege: Exceptions

Answer 21

The privilege does not apply in:

• suits between the spouses
• suits in which one spouse is charged with a crime or tort against children
• suits in which spouses are co-defendants