Testimonial Privileges

Question 1

FRE privilege rules

Answer 1

there are none - privileges are NOT evidentiary rules

Question 2

types of testimonial privileges

Answer 2

attorney-client privilege
clergy-pertinent
spousal
marital communications
psychotherapist/social worker-patient
physician-patient
governmental

Question 3

self incrimination

Answer 3

under 5A, W cannot be compelled to provide self-incriminating testimony in civil or criminal cases

Effect
1. **Civil: **jury may draw adverse inference
2. **Criminal: **D cannot be punished

Question 4

attorney-client privilege

Answer 4

privileged unless waived

Communication must be:
1. intended to be confidential; and
2. made to facilitate legal services

Fees NOT covered

organization clients - anyone authorized to speak to attorney

Question 5

exceptions to attorney-client privilege

Answer 5

**Crime or fraud: **seeking to aid in planning or commission of a fraud or crime

**attorney defending malpractice claim: **relates to alleged breach of attorney’s duties

Question 6

joint representation of parties in a lawsuit
(attorney-client privilege)

Answer 6

No privilege if parties sue each other

Question 7

physician-patient privilege

Answer 7

communication must be:
1. made for purposes of obtaining diagnosis or treatment
2. pertinent to diagnosis or treatment, and
3. intended by the patient to be confidential

Question 8

physician-patient privilege exceptions

Answer 8

1. patient’s condition is a legal issue (eg. personal injury)
2. services were sought to aid in a crime, tort, or escape capture, or
3. dispute between doctor and patient (eg. malpractice)

Question 9

psychotherapist/social worker-patient privilege

Answer 9

privileged if:
1. client intends to the communication to be confidential, and
2. communication is made to facilitate therapy or social work

operates like attorney-client privilege

Question 10

spousal testimonial/immunity privilege

Answer 10

criminal cases only

A person whose spouse is a D in a criminal case cannot be:
1. called as a witness by the prosecution, or
2. compelled to testify against his spouse in a criminal proceeding

• Only W-spouse may invoke privilege (D cannot prevent willing spouse from testifying)
• Privilege can only be invoked during marriage (NOT after divorce)

can be asserted for matters before or during marriage

Question 11

marital communications privilege

Answer 11

Civil and criminal

confidential communications made during marriage are privileged in any later proceeding even if divorce afterwards

Either spouse may invoke privilege

A spouse loses privilege if he tells a 3P but other spouse keeps privilege

NOT before marriage communications (only during)

Question 12

marital communciations privilege exceptions

Answer 12

1. suits between spouses
2. suits in which one spouse is charged with a crime or tort against children
3. suits in which spouses are co-Ds