TESTIMONIAL PRIVILEGES

Question 1

TESTIMONIAL PRIVILEGES

Answer 1

1) Testimonial Privileges
2) Attorney-Client Privilege
3) Doctor-Patient Privilege
4) Psychotherapist & Social Worker-Client Privilege
5) Spousal Testimonial Privilege
6) Marital Communications Privilege
7) 5th Amendment Privilege Against Self-Incrimination

Question 2

Testimonial Privileges

Answer 2

Federal courts recognize several testimonial privileges. There are NO FRE privilege rules, federal courts have created and adopted these privileges.

State privilege rules (which often vary) apply in federal cases based on diversity jx.

Testimonial Privileges:

(1) Attorney-Client
(2) Doctor-Patient
(3) Psychotherapist/Social Worker-Patient
(4) Spousal
(5) Material Communications
(6) 5th A Privilege Against Self-Incrimination

Question 3

Attorney-Client Privilege

Answer 3

Communications between an attorney and client or client’s representatives are privileged in all proceedings unless waived. For organizational clients, the privilege applies to any employee authorized to speak to the attorney.

To be protected, a communication must be:

(1) Intended to be confidential; AND
(2) Made ot facilitate legal services.

The privilege does NOT apply if:

(1) A client seeks legal services to further a fraud or similar crime; OR
(2) If the communication related to an alleged breach of the attorney’s duty (i.e. attorney defending a malpractice claim)

Question 4

Physician-Patient Privilege

Answer 4

The physician-patient privilege is a statutory privilege in most states, but not found in the FRE.

The physician-patient privilege prevents disclosure of information confidentially conveyed by a patient to a physician. To be protected, the communication must be:

(1) Made for purposes of obtaining diagnosis or treatment
(2) Pertinent to a diagnosis or treatment; AND
(3) Intended by the patient to be confidential

The privilege does NOT apply where:

(1) Patient’s condition is a legal issue (e.g. personal injury)
(2) Physician’s services were sought to aid in a crime, tort, or to escape capture; OR
(3) Dispute between doctor and patient (e.g. malpractice)

Note: MBE usually assumes the existence of this privilege, but an answer choice indicating privilege as an evidentiary rule will be incorrect

Question 5

Psychotherapist/Social Worker-Client Privilege

Answer 5

The psychotherapist/social worker-client privilege is a statutory privilege in most states, but not found in the FRE.

The psychotherapist/social worker-patient privilege prevents disclosure of material conveyed by patient in a civil and criminal cases if:

(1) Client intends the communication to be confidential; AND
(2) Communication is made to facilitate therapy or social work

Note: MBE usually assumes the existence of this privilege, but an answer choice indicating privilege as an evidentiary rule will be incorrect

Question 6

Spousal Testimonial Privilege

Answer 6

The spousal testimonial privilege applies in CRIMINAL cases only. A witness may refuse to testify against a spouse DURING marriage. Only the witness may invoke the privilege (i.e. Defendant cannot prevent a willing spouse from testifying against him)

Question 7

Marital Communication Privilege

Answer 7

In civil and criminal cases martial communications are privileged in any later proceeding. Martial communications are CONFIDENTIAL COMMUNICATIONS made DURING marriage. The marital communication privilege applies even if spouses divorce after confidential communication was made.

Either spouse may invoke the privilege. A spouse can lose the privilege if he breaks confidentiality (i.e. relays a material communication to a third party), the other spouse still retains the privilege.

The exception does NOT apply:

(1) In suits between spouses
(2) In suits which one spouse is charged with a crime or tort against children; OR
(3) In suits in which spouses are co-defendants

Question 8

5th Amendment Privilege Against Self-Incrimination

Answer 8

The 5th Amendment privilege against self-incrimination prohibits a witness from being compelled to testify against herself. This applies in civil and criminal cases (including sentencing). Courts will allow a witness to invoke the privilege if there is some reasonable possibility of self-incrimination

*Criminal Defendant’s cannot be punished for invoking privilege