Testimonial Privileges Flashcards
Comment on Privilege
Fed - no-one can comment on invocation of privilege
GA - a party’s assertion of privilege may not be used against them in a criminal case. However, in a CIVIL case, a party’s assertion of privilege may be used by the trier of fact to draw a negative inference against the party - that the party asserted the privilege because disclosing the information would be against their interest.
Physician Patient Privilege
Fed - doesn’t recognize physician patient privilege
GA - does not recognize physician patient privilege - however there is a physician shield that protects confidentiality of medical information - but this does not create an evidentiary privilege
Mental Health Privilege
Fed - recognize privilege between psychotherapist/licensed social worker and patient
GA - the privilege applies to a variety of providers - look for psychiatrists, nurses who specialize in mental health, or any other licensed mental health provider
GA’s mental health privilege is absolute and applies even when the patient’s injuries or treatment are at issue in a civil proceeding.
Spousal Immunity
Fed - the privilege doesn’t apply where the marriage is a sham
GA - the privilege may be asserted even though the marriage was entered into for the purpose of preventing the testimony of the witness spouse
Marital Communications
Fed - the privilege belongs to both spouses
GA - the privilege belongs to the communicator spouse. Where the communicator spouse has died, the privilege cannot be waived by the administrator of their estate or by their surviving spouse.
When the Marital Privileges Don’t Apply
GA does not recognize the joint crime/fraud exception or an exception for lawsuits between spouses. Below are GA’s exceptions:
1) where the defendant is charged with a crime against ANY minor child - but the spouse can be compelled to testify only on the specific act for which the defendant is charged
2) where the defendant is charged with a crime against their spouse
3) where the defendant is charged with causing physical damage to the couple’s property or to their spouse’s separate property
4) in termination of parental rights or dependency proceedings
Clergy-Penitent
Ga recognizes a clergy penitent privilege for communications professing religious faith, seeking spiritual comfort, or seeking counseling
The privilege is not waived if the penitent has other individuals present for counseling purposes
Privilege Against Self Incrimination
GA (very broad) - no party or witness is required to testify as to any matter that may incriminate or tend to incriminate then or that tends to bring infamy, disgrace, or public contempt upon themselves or any member of their family.
HOWEVER, a witness is required to answer questions that are not incriminating but tend to bring infamy, disgrace, or public contempt upon themselves or their family if the proposed evidence is material to the issues in the case.
It is only where the proposed answer has not effect on the case except to impair the witness’s credibility that the witness may fall back on the privilege
Accountant - Client Privilege
GA recognizes the accountant client privilege - the exceptions are similar to the attorney client privilege
Professional Journalist Privilege
any person or entity engaged in gathering and dissemination of news for the public has a qualified privilege against disclosure or any information obtained or prepared in gathering or dissemination of news in any proceeding where the person asserting the privilege is NOT a party, unless it is show that the privilege has been waived or that what is sought
1) is material and relevant
2) cannot be reasonably obtained by alternative means; and
3) is necessary to the property preparation or presentation of the case of a party seeking the information, document, or item
