Testimonial privileges? Flashcards
If you are asked whether federal or state priv law should apply on the exam, how should you answer?
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.
Who can assert priv?
Thee holder of it.
What must a communication be to be privelged?
Confidential– not intended to be disclosed to 3rd parties.
How is Priv waived?
1) Failure to claim it
2) voluntary disclosure of priv matter by holder
3) contractual provision waiving it
If the priv holder doesn’t consent, and someone discloses wrongfully the info, what happens?
Priv still applies
If a joint holder of priv waived it, what happens?
Other joint holder’s priv is not waived
What is modern view of eavesdroppers and priv?
In absence of Negligence by person claiming priv, an eaves dropper is prohibited from testifying.
If a client reasonably believes an attorney is a member of the bar but the attorney is not, is their priv?
Yes.
If a client is not seeking prof services of attorney when comment is made, what happens?
No priv.
When are statements to an attorney by corporate officials/employees protected?
Statements are protect if employees were authorized/directed by Corp to make statements
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?
Still confidential. Priv survives. COnfidential still.
If an attorney sends a client to a Doc to get an exam, what result?
NO phys patient priv because no treatment is complicated.
Att Cli priv because as long as Dr not called as testifying expert.
IF former joint clients sue each other, what happens to the atty priv they once had?
Doesn’t apply as between them .
When is there no att-cli priv?
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
When does general phys-patient majority rule apply in fed court?
Case sitting in diversity.
What are exceptions to P-P P?
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
Is there a federal law of phys patient privelged?
No, if it’s not diversity Phys patient wont apply.
What is spousal immunity?
A spouse whose partner is a defendant in criminal case cannot be called as witness for prosecution.
What types of cases can a married person be called to testify against their spouses legal interest?
None.
When does spousal immunity end?
Divorce.
When do we consider if spousal immunity exists?
At time of trial.
If someone hasn’t officially gotten their marriage accepted, what result for SI
No SI – only valid marriages
In SI, who holds the privilege?
The witness spouse – they can’t be compelled but they can choose to testify in federal court.
What is confidential marital communications?
Communications made in reliance and intimacy of marital relationship. It ap
were does confidential marital communications apply?
Civil and criminal
who holds priv in confidential marital communications ?
Both spouses and can prevent other from test.
when does priv in confidential marital communications end?
It survives the marriage, but only covers statements made during the marriage.
When does neither marital priv apply?
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
