Testimonial privileges?

Question 1

If you are asked whether federal or state priv law should apply on the exam, how should you answer?

Answer 1

In fed case
2) arising under fed substantive law (fed question/crim Law)
3) Privs are governed by fed law

In fed case
1) based in diversity,
2) state substantive law applies to claims
3) apply law of state.

Question 2

Who can assert priv?

Answer 2

Thee holder of it.

Question 3

What must a communication be to be privelged?

Answer 3

Confidential– not intended to be disclosed to 3rd parties.

Question 4

How is Priv waived?

Answer 4

1) Failure to claim it
2) voluntary disclosure of priv matter by holder
3) contractual provision waiving it

Question 5

If the priv holder doesn’t consent, and someone discloses wrongfully the info, what happens?

Answer 5

Priv still applies

Question 6

If a joint holder of priv waived it, what happens?

Answer 6

Other joint holder’s priv is not waived

Question 7

What is modern view of eavesdroppers and priv?

Answer 7

In absence of Negligence by person claiming priv, an eaves dropper is prohibited from testifying.

Question 8

If a client reasonably believes an attorney is a member of the bar but the attorney is not, is their priv?

Answer 8

Yes.

Question 9

If a client is not seeking prof services of attorney when comment is made, what happens?

Answer 9

No priv.

Question 10

When are statements to an attorney by corporate officials/employees protected?

Answer 10

Statements are protect if employees were authorized/directed by Corp to make statements

Question 11

Since priv only applies to confidential communication, what happens if there are reps of the att/client in the room? What about communication through agents like admins/accountants/messengers?

Answer 11

Still confidential. Priv survives. COnfidential still.

Question 12

If an attorney sends a client to a Doc to get an exam, what result?

Answer 12

NO phys patient priv because no treatment is complicated.
Att Cli priv because as long as Dr not called as testifying expert.

Question 13

IF former joint clients sue each other, what happens to the atty priv they once had?

Answer 13

Doesn’t apply as between them .

Question 14

When is there no att-cli priv?

Answer 14

If attys services were used to aid in planning/commissh of crime OR
2) client should have known was a crime

OR

where Cli put legal services at issue in case (tax fraud–she relied on advice of atty.. no priv)

Common relevant to breach of duty in dispute between att client
COmm sent to an issue between parties claim through deceased client

Question 15

When does general phys-patient majority rule apply in fed court?

Answer 15

Case sitting in diversity.

Question 16

What are exceptions to P-P P?

Answer 16

1) patient puts phys condition at issue
2) Phys was sought to aid wrongdoing
3) Breach of duty between phys/pat
4) Contract
5) fed case applying fed law of priv

Question 17

Is there a federal law of phys patient privelged?

Answer 17

No, if it’s not diversity Phys patient wont apply.

Question 18

What is spousal immunity?

Answer 18

A spouse whose partner is a defendant in criminal case cannot be called as witness for prosecution.

Question 19

What types of cases can a married person be called to testify against their spouses legal interest?

Answer 19

None.

Question 20

When does spousal immunity end?

Answer 20

Divorce.

Question 21

When do we consider if spousal immunity exists?

Answer 21

At time of trial.

Question 22

If someone hasn’t officially gotten their marriage accepted, what result for SI

Answer 22

No SI – only valid marriages

Question 23

In SI, who holds the privilege?

Answer 23

The witness spouse – they can’t be compelled but they can choose to testify in federal court.

Question 24

What is confidential marital communications?

Answer 24

Communications made in reliance and intimacy of marital relationship. It ap

Question 25

were does confidential marital communications apply?

Answer 25

Civil and criminal

Question 26

who holds priv in confidential marital communications ?

Answer 26

Both spouses and can prevent other from test.

Question 27

when does priv in confidential marital communications end?

Answer 27

It survives the marriage, but only covers statements made during the marriage.

Question 28

When does neither marital priv apply?

Answer 28

IF made in furtherance commission of a joint crime in future
2) legal actions between spouses
3) where spouse has been charged with crime against testifying spouse/child