Testimonial Privileges

Question 1

in federal cases arising under federal constitutional law, testimonial privileges are governed by what law?

Answer 1

federal common law

Question 2

in federal cases based on diversity jurisdiction, where state substantive law applies, testimonial privileges are governed by what law?

Answer 2

the privilege law of the state

Question 3

generally, what are the federally recognized categories of privilege? (5)

Answer 3

1) attorney-client privilege
2) spousal immunity
3) privilege for confidential marriage communications
4) psychotherapist/LSW-client privilege
5) governmental privileges

Question 4

true or false: only certain states recognize physician-patient, accountant-client, and professional journalist privileges.

Answer 4

TRUE (not federally recognized)

Question 5

what are the three general ways a party can waive privilege?

Answer 5

1) failure to claim the privilege
2) voluntary disclosure of the privileged matter by the privilege holder
3) a contractual provision waives the right to claim the privilege in advance

Question 6

true or false: a privilege based on confidential communications is DESTROYED if it was overheard by someone whose presence is unknown to the parties. (eavesdroppers)

Answer 6

FALSE (this will NOT destroy the privilege)

Question 7

under the modern view, can an eavesdropper be prevented from testifying?

Answer 7

YES (so long as there was no negligence by the person claiming the privilege)

Question 8

what is the general rule of attorney client privilege?

Answer 8

communications between an attorney and client, made during professional consultation are privileged from disclosure

Question 9

who is an “attorney” for A-C privilege purposes?

Answer 9

a member of the bar OR someone the client reasonably believes to be a member of the bar

Question 10

who is a “client” for A-C privilege purposes?

Answer 10

someone seeking the professional services of an attorney at the time the communication was made

Question 11

true or false: disclosures made BEFORE the attorney accepts/declines the case are covered by the privilege.

Answer 11

TRUE (preliminary discussions are covered)

Question 12

when are statements made by corporate officials protected under the A-C privilege?

Answer 12

when the employees were authorized/directed by the corporation to make such statements

Question 13

what does the A-C privilege apply to?

Answer 13

ONLY to communications

Question 14

true or false: the A-C privilege does NOT apply to underlying info, pre-existing documents, or physical evidence.

Answer 14

TRUE (all of these are NOT protected)

Question 15

true or false: communications made in the KNOWN presence and hearing of a stranger are NOT privileged.

Answer 15

TRUE

Question 16

true or false: the presence of representatives of an attorney or client will destroy the A-C privilege.

Answer 16

FALSE (they may be present)

Question 17

when are communications thru agents (admin assistants, messenger, etc) protected?

Answer 17

if such communications are necessary to transmit between the attorney and client

Question 18

true or false: the A-C privilege WILL cover communications between a client and doctor during an examination made at the attorney’s request.

Answer 18

TRUE (so long as the doctor is NOT called as a testifying expert)

Question 19

when 2 or more clients with a common interest consult the same attorney, are their communications about that interest privileged?

Answer 19

ONLY as to third parties (not as to each other if a later dispute about the common interest arises between them)

Question 20

what does “professional legal consultation” mean for A-C purposes?

Answer 20

the primary purposes of the communication must be to obtain or render legal services (mere business/social advice doesn’t count)

Question 21

what party holds the A-C privilege?

Answer 21

the client

Question 22

what party can waive the A-C privilege?

Answer 22

the client only

Question 23

true or false: an attorney’s authority to claim the A-C privilege on behalf of a client is PRESUMED (absent contrary evidence)

Answer 23

TRUE

Question 24

what are the 4 exceptions to A-C privilege?

Answer 24

1) when attorney’s services were sought to aid in the planning or commission of something the client should have known was a CRIME/FRAUD,
2) the client has put the legal services AT ISSUE in the case,
3) communications are relevant to an issue of breach of duty in a dispute BETWEEN the attorney and client, or
4) communication is relevant to an issue between parties claiming thru the SAME DECEASED CLIENT

Question 25

true or false: documents prepared by an attorney for their own use in a case ARE protected by the A-C privilege.

Answer 25

FALSE (BUT are protected by the work product doctrine)

Question 26

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 26

TRUE (work product doctrine)

Question 27

generally, what is the effect of a VOLUNTARY disclosure of privileged material? (ie–scope)

Answer 27

this disclosure operates as a waiver of the A-C privilege and WP protection but ONLY with respect to the disclosed material

Question 28

when is UNDISCLOSED privileged material subject to the waiver? (3 rqmts)

Answer 28

only where…
1) waiver was intentional
2) the disclosed and undisclosed material concern the same subject matter, and
3) the material should be considered together to avoid unfairness

Question 29

when does disclosure of privileged material NOT amount to waiver of the privilege?

Answer 29

when the disclosure was inadvertent and the holder took reasonable steps to prevent disclosure and rectify the error

Question 30

when is confidential info acquired by a physician privileged? (3 rqmts)

Answer 30

privileged if…
1) there was a PROFESSIONAL relationship between the patient and patient for purposes of medical treatment,
2) information was acquired for the PURPOSE of diagnosis or treatment, and
3) information was NECESSARY for diagnosis or treatment

Question 31

true or false: the physician-patient privilege is a federally recognized privilege.

Answer 31

FALSE (only recognized at the state level)

Question 32

what party does the physician-patient privilege belong to?

Answer 32

the patient

Question 33

what party can decide to claim or waive the privilege?

Answer 33

the patient

Question 34

true or false: the physician may claim the P-P privilege on the patient’s behalf if they are not available for trial.

Answer 34

TRUE

Question 35

what are the exceptions to the physician-patient privilege? (4)

Answer 35

privilege doesn’t apply if…
1) patient puts their physical condition at issue,
2) physician’s assistance was sought to aid wrongdoing,
3) communication is relevant to an issue of breach of duty in dispute BETWEEN the patient and the physician
4) patient agreed by contract to waive the privilege

Question 36

as to what other type of privilege does the psychotherapist-patient privilege operate in the same manner?

Answer 36

the attorney-client privilege

Question 37

what are the two distinct spousal privileges?

Answer 37

1) spousal immunity
2) privilege for confidential marital communications

Question 38

in what cases does the spousal immunity privilege apply?

Answer 38

one spouse may not be compelled to testify against their spouse in CRIMINAL cases where one spouse is the defendant or where one spouse’s legal interests are at issue

Question 39

when must the marriage be valid for spousal immunity to apply?

Answer 39

at the time of trial

Question 40

true or false: spousal immunity does NOT apply to events that took place BEFORE the marriage.

Answer 40

FALSE (the privilege applies during and before the marriage)

Question 41

who holds the spousal immunity privilege?

Answer 41

ONLY the witness-spouse (NOT the defendant spouse)

Question 42

in what cases does the privilege for confidential marital communications apply?

Answer 42

in ANY civil or criminal case, confidential communications between spouses are privileged

Question 43

who holds the privilege for confidential marital communications?

Answer 43

BOTH spouses (either can assert the privilege)

Question 44

true or false: spouses can even prevent OTHER third parties from disclosing confidential marital communications.

Answer 44

TRUE

Question 45

when must the marriage be valid for the privilege for confidential marital communications to apply?

Answer 45

at the time the communication was MADE

Question 46

when are communications “confidential” for the purpose of the confidential marital comms privilege?

Answer 46

when communications are made in reliance upon the intimacy of the marital relationship (generally presumed)

Question 47

true or false: threats or abusive language are NOT privileged as confidential marital comms.

Answer 47

TRUE

Question 48

true or false: confidential marriage comms are NOT confidential if made in the presence of young children living in the home.

Answer 48

FALSE (still protected under the privilege)

Question 49

true or false: divorce will terminate the confidential marital comms privilege as to statements made before the divorce.

Answer 49

FALSE (privilege survives divorce, only comms after divorce are NOT privileged)

Question 50

in what 3 circumstances will neither marital privilege apply?

Answer 50

will not apply to…
1) comms/acts in furtherance of a future joint crime or fraud
2) comms made in legal actions between spouses
3) cases where a spouse is charged with a crime against the testifying spouse or either spouse’s children