Testimonial Privileges Flashcards
Generally
Permit a person to refuse to disclose, and prohibit others from disclosing, certain confidential info in judicial proceedings
Exam Approach
Usually straightforward. May be asked to determine whether federal or state privlege law should be applied in a particular case in fed court.
1) Cases based on federal law–federal common law applies
2) Diversity cases–state privilege law applies
Federal Common Law privleges
1) Att-client
2) Spousal immunity
3) Confidential martial communications
4) Psychotherapistst/social worker-client privlege
5) Clergy-pentient privlege
6) Gov privleges
General COnsiderations
1) Privlege is personal to holder (but somestimes may be asserted on their behalf)
2) Communication msut have been confidential
3) Comment on privlege is forbidden (party or judge)
4) Waiver
–failure to claim
–voluntary disclosure
–contractual waiver
–BUT NOT when someone wrongfully discloses info without the privlege holders consent
5) Eavesdroppers - does not destroy privlege (if presence unknown to the parties)
–Modern view: even eavesdropper is prohibited from testifying
Att-Client Privlege
Privleged from disclosure. Applies to:
1) COnfidential Comms
2) between att and client (and eithers rep)
–bar member or client believes he is
3) During professional legal
consultation
–primary purpose: obtain or render legal services
–applies to prelim consultations
4) Unless exception applies
Applies indefinitley, even after death. But can be waived by estate
Att-Client and Corporate CLients
Protected if hte employees were authorized or directed by the corp to make such statements
Att-Client - Confidential comms
Must not be intended for outside disclosure.
Applies ONLY to communications.
Comms made in known presence of stranger is not privleged, but reps of att or client may be present without destroying privlege.
Att-Client Privlege - Agents
Comms through agents privleged if necessary to transmit info between Att and Client
Att-Client - Joint Client Rule
When Joint clients have common interest, their comms with attorney are not privleged IF THEY SUE EACHOTHER later
Att-Client Exceptions
1) att services sought to aid in crime or fraud (or should have known)
2) Where client has put the LEGAL SERVICES AT ISSUE in the case
–ex. bad advice
3) Dispute between att and client (breach of duty)
4) for c omm relevant to an issue between parties claiming through the same decesased client
Att Work Product
Not protected by att-client privlege. But not subject to discovery except in cases of necessity.
Limitations on Waiver of Att-Client and Work Product Rule
Generally, vol disclosure waives only with respect to THAT material.
Undisclosed privleged material is subject to waiver ONLY IF:
1) waiver was intentional,
2) The disclosed and undisclosed material concerns the same subject matter and
3) the material should be considered together to avoid unfairness
No waiver if disclosure was:
1) in advertent
2) holder took reasonable steps to prevent disclosure and rectify the error
Physician-Patient Privlege
STATE PRIVLEGE ONLY. Most states have adopted.
Confidential info acquired by physician privleged if:
1) pro relationship existed for purposes of med treatment
2) information acquired for purposes of diagnosis or treatment, AND
3) the information necessary for diagnosis or treatment
Applicability to crim cases vary by state
Main exceptions to physician patient privlege
1) patient puts their physical condition in issue
2) assistance sought to aid wrongdoing
3) dispute between physician and patient
4) Patient agreed to waive privlege
5) Federal case applying federal law (not recognized)
Psychotherapist/Social Worker-Patient privlege
Operates like att-client privlege.
No privlege where patient puts mental condition at issue
Privleges relating to marriage
1) Spousal immunity
2) Privlege for confidential marital comms
Spousal Immunity
Applies to CRIM cases only.
Prevents D’s spouse from being compelled to testify against D in crim case.
Spouses must be married at time of trial.
Witness-spouse holds privlege (not D spouse). SPouse MAY choose to testify.
Privlege for Confidential Marital Comms
Applies in civil and crim.
Confidential comms between spouses during a valid marriage are privleged. EITHER SPOUSE can refuse to disclose the comm OR PREVENT any other person from doing so.
Marital relationship must exist WHEN THE COMM IS MADE. (remains if they divorce).
Private comms are generally presumed to be confidential. Comms must have been confidential in nature.
–threats, abusive language is not conf
–stranger rule, but may still be protected if made in presence of young children living in home
When neither maritial priv applies
1) Joint crime-fraud
2) Legal actions between spouses
3) SPouse charged with crime against other spouse or either spouse’s children
