Testimonial Privileges Flashcards
Testimonial Privileges - General Concept
- permit a person to refuse to disclose, and prohibit others from disclosing certain confidential info in judicial proceedings
Fed vs State Privilege Law - When They Apply
- privileges are governed FED common law in a fed court case arising under fed substantive law
- privileges governed by STATE law in fed court case based on div jur, where state substantive law applies to parties’ claims + defenses
Major Privileges Recognized by Federal Courts
- attorney-client privilege
- spousal immunity
- privilege for confidential marital communications
- psychotherapist/social worker client privilege
- clergy-penitent privilege
- governmental privileges
Persons Who May Assert Privilege
- privileges = personal to the holder -> generally can be asserted only by the holder
- sometimes person w/ whom confidence was shared may assert the privilege on the holder’s behalf though
Confidentiality
- to be privileged, communication must be shown or presumed to have been made in confidence (not intended to be disclosed to third parties)
Commenting on Privileges
- forbidden -> neither counsel for the parties nor the judge may comment on someone’s claim of a privilege
Waiver
Any privilege is waived by:
1) failure to claim the privilege
2) voluntary disclosure of the privileged matter by the privilege holder OR
3) a contractual provision waiving in advance the right to claim a privilege
NOT waived by:
- someone wrongfully disclosing info w/o privilege holder’s consent
- waiver by one joint holder does not affect right of the other holder to assert the privilege
Eavesdroppers
- privilege based on confidential communications is not destroyed because it was overheard by someone whose presence is unknown to the parties
- under modern view, in absence of negligence by he person claiming the privilege, even the eavesdropper would be prohibited from testifying
Attorney-Client Privilege - Elements
Applies to:
- confidential communications
- between attorney and client (or representatives of either)
- made during professional legal consultation
- unless the privilege is waived or an exception is applicable
Attorney-Client Relationship
- “attorney” = member of the bar, OR someone the client reasonably believes to be a member of the bar
- “client” must be seeking the professional services of the attorney at the time of the communication
- disclosures made before attorney accepts or declines the cases are covered by the privilege
Corporate Clients (attorney-Client Privilege)
- corporations are “clients” within the meaning of the privilege
- statements made by officials or employees to an attorney are protected if the employees were authorized or directed by the corporation to make such statements
Confidential Communication
- privilege applies to communications only
- does NOT apply to underlying info, pre-existing docs, or physical ev
- to be protected, a communication must be confidential (not intended to be disclosed to third parties)
-> communications made in known presence and hearing of a stranger are not privileged - reps of attorney or client may be present without destroying the privilege
Attorney-Client Privilege - Communications Through Agents
- communications made to third parties are confidential + covered by privilege if necessary to transmit info between attorney + client
- ex: administrative assistants, messengers, accountants
- communications between client + doctor during exam made at attorney’s request -> physician-patient privilege DOESN’T apply because no treatment contemplated, but attorney-client DOES apply, as long as doctor not called as testifying expert
Attorney-Client Privilege - Joint Client Rule
- if 2 or more clients w/ a common interest consult same attorney, their communications w/ the attorney concerning the common interest are privileged as to third parties
- BUT if joint clients later have a dispute w/ each other concerning common interest + one client sues other, privilege does NOT apply as between them
Professional Legal Consultation
- primary purpose of the communication must be to obtain or render legal services (not to give business or social advice)
Attorney-Client Privilege - Who Holds?
- client holds the privilege
- only client can waive it
- attorney’s authority to claim the privilege on behalf of the client is presumed in the absence of contrary evidence
Attorney-Client Privilege - Duration
- the privilege applies indefinitely
- continues after relationship ends + after death
- estate rep has power to waive privilege after death
Attorney-Client Privilege - Exceptions
- if attorney’s services were sought to aid in planning or commission of something client should have known was a crime or fraud
- where client has put legal services at issue in the case
- for a communication relevant to an issue of breach of duty in a dispute between attorney + client
- regarding a communication relevant to an issue between parties claiming through the same deceased client
Attorney’s Work Product
- docs prepared by attorney for own use in a case are not protected by the privilege
- BUT not subject to discovery except in cases of necessity
Limitations on Waiver of Attorney-Client Privilege and Work Product Rule
- generally, a voluntary disclosure of privileged material operates as a waiver of attorney-client privilege or work product protection only wrt the disclosed material
- undisclosed privileged material is subject to the waiver only if:
1) the waiver was intentional
2) the disclosed + undisclosed material concern the same subject matter AND
3) the material should be considered together to avoid unfairness - no waiver if disclosure inadvertent + holder took reasonable steps to prevent disclosure + rectify error
Physician-Patient Privilege - Scope + Applicability
- most states have adopted physician-patient privilege
-> BUT no such privilege under fed common law
Confidential info acquired by physician privileged if:
- professional relationship between physician + patient for purposes of med treatment
- info acquired for purpose of diagnosis or treatment AND
- info necessary for diagnosis or treatment (non-med info not privileged)
- privilege belongs to patient + only patient can claim or waive (though doctor can claim on patient’s behalf if patient unavailable)
Physician-Patient Privilege - Exceptions
Physician-patient privilege does not apply (or is impliedly waived) if:
- patient puts their physical condition in issue
- physician’s assistance was sought to aid in wrongdoing
- communication is relevant to an issue of breach of duty in dispute between patient + physician
- patient agreed by contract to waive the privilege (ex: insurance case)
- fed case applying fed law of privilege
Physician-Patient Privilege - Crim Proceedings
- some states don’t allow this to be invoked in crim cases
- some deny only in felony cases, some only in homicide
- some don’t deny at all
Psychotherapist/Social Worker-Patient Privilege
- fed courts recognize privilege for confidential communications between psychotherapist or licensed social worker and patient/client
- in most particulars, this privilege operates in same manner as attorney-client privilege
- no privilege where patient puts mental condition at issue in case
Spousal Testimonial Privilege
- commonly known as spousal immunity
- when privilege of spousal immunity is invoked, married person whose spouse is def may not be called as a witness by prosecution
- ONLY in CRIMINAL cases
- married person may not be compelled to testify against legal interests of spouse in any crim proceeding, regardless of whether spouse is def
Spousal Testimonial Privilege - Duration
- must be a valid marriage for privilege to apply
- privilege only last during marriage
- privilege belongs to witness-spouse -> can CHOOSE to testify
Privilege for Confidential Spousal Communications
- in any crim or civil case, confidential communications between spouses during a marriage are privileged
- EITHER spouse can refuse to disclose the communication or prevent someone else from doing so
- for it to apply, the marital relationship must exist when the communication is made
- divorce doesn’t terminate the relationship, but communications afterward not protected
Marital Communications Privilege - Confidentiality
- communication must be made in reliance on the intimacy of marital relationship
- threats or abusive language NOT privileged
- communications made in known presence of a third party are NOT privileged
-> may be confidential though if made in presence of young children living in the home
When Neither Marital Privilege Applies
- communications or acts in furtherance of a future joint crime or fraud
- in legal actions between spouses OR
- in cases where a spouse is charged with a crime against the testifying spouse or either spouse’s children
Clergy-Penitent Privilege
- fed courts + many states recognized privilege for statements made to a member of the clergy, elements of which are very similar to attorney-client privilege
-> ex: only applies if penitent made communication to clergy member in clergy’s capacity as spiritual adviser
Governmental Privileges
- official info not otherwise open to public may be privileged
- gov also holds a privilege that protects the identity of an informer (someone who has provided gov with details of a potential crime)
- privilege is waived if informer’s identity is voluntarily disclosed by privilege holder (an appropriate gov rep)
Accountant-Client Privilege
- State only
- many states recognize privilege for statements made to accountant
- elements similar to attorney-client
Professional Journalist Privilege
- state only
- no constitutional right for professional journalist to protect sources
- only certain states recognize such a privilege
