Testimonial Privileges

Question 1

What are the recognized privileges? What are the differences between federal and states (majority)?

Answer 1

Federal:

• Attorney-Client
• Clergy-Parishioner
• Spousal privileges
• Psychotherapist-Patient

Majority of States also recognize the Doctor-Patient – which Federal law does not recognize.

Question 2

What is the rule for attorney-client privilege?

Answer 2

The privilege protects any communication between lawyer and client (or their representatives) so long as it is confidential and for the purpose of legal representation in a specific matter UNLESS the privilege is waived by the client or an exception applies.

The client must intend confidentiality.

Question 3

In regards to the attorney-client privilege, what is considered a communication? Who is considered a client?

Answer 3

Communications - privilege applies only to communications, NOT TO underlying information, pre-existing documents, physical evidence.

The primary purpose of the communication must be to get or give legal advice (not business or social advice).

The client must intend confidentiality.

Question 4

For the purposes of the attorney-client privilege, who is considered an attorney?

Answer 4

“Attorney” includes a member of the bar, as well as someone the client reasonably believes is a member of the bar, and representatives of the attorney.

Question 5

Under the attorney-client, what is the joint client rule?

Answer 5

Joint Client rule - If two or more clients with common interest consult the same attorney, their communications with counsel concerning the common interest are privileged as to third parties.

But if the joint clients later have dispute with each other concerning the common interest, privilege does not apply as between them.

Question 6

For the purposes of the attorney-client privilege, who is considered a client?

Answer 6

“Client” includes a person seeking to become a client and representatives of the client.

Question 7

What are the exceptions for the attorney-client privilege?

Answer 7

Exceptions:

• Future crime or fraud
• The client puts the advice in issue
• Attorney-client dispute

Question 8

How can an attorney-client privilege be waived?

Answer 8

• Voluntary Waiver
• Subject Matter Waiver
• Inadvertent Waiver

Question 9

What is a voluntary waiver? Who can waive the privilege?

Answer 9

When the client willfully chooses to waive the privilege.

Only the client (or upon death, the client’s estate) has the power to waive the privilege.

Question 10

What is a subject matter waiver? Who can waive the privilege?

Answer 10

A subject matter waiver occurs when, the client voluntary waives the privilege as to some communications which also waives the privilege as to other communications if:

• the partial disclosure is intentional, and
• the disclosed and undisclosed communication concern the same subject, and
• fairness requires that the disclosed and undisclosed communications be considered together.

Question 11

What is the rule regarding inadvertent waivers?

Answer 11

Disclosure of a privileged communication will not waive the privilege, so long as the privilege-holder took reasonable steps to prevent the disclosure and correct the error.

Question 12

What is the doctor-patient privilege? What is the difference between the federal privilege and the Virginia privilege? How is the privilege waived?

Answer 12

The privilege includes any communication or information acquired by a doctor from a patient so long as it is confidential and for the purposes of diagnosis or treatment. (“doctor” includes therapists, nurses, and PAs).

Federal Distinction: Covers only psychotherapists

Virginia Distinction: Physician-patient privilege only available in civil actions. Neither medical nor psychotherapist privilege applies in criminal trials.

Waiving the privilege: If the patient expressly or impliedly puts physical or mental condition in issue (e.g. asserting an insanity defense, P in a personal injury case).

Question 13

What are the two spousal privileges?

Answer 13

1. Spousal communications and
2. Spousal Immunity (Testimony)

Question 14

What is spousal communications privilege?

Answer 14

Confidential communications between spouses are privileged.

Applies to relationship between legally married couples and covers confidential statements if they were married at the time of communications and may be waived only by both spouses.

Applicable in criminal or civil cases.

Question 15

In what type of cases are spousal communications privileged?

Answer 15

Civil or criminal cases.

Question 16

What does the spousal communications privilege protect?

Answer 16

Confidential communications. (e.g. if communication is in front of children or some other third party, then not confidential).

Question 17

For the spousal communications privilege to apply, when must the couple be married?

Answer 17

Must be married at the time of the communication.

Question 18

Who is the holder of the spousal communications privilege? Who can waive the privilege?

Answer 18

Both spouses. Held by and may be waived with the consent of both spouses.

Question 19

What is spousal immunity (spousal testimony) privilege?

Answer 19

In a criminal case, the prosecution cannot compel the D’s spouse to testify against the D.

Applies only to criminal cases; covers any witness called for the prosecutor if the witness and D are married at the time of the trial. May be waived by the witness spouse.

Question 20

In what type of cases are spousal immunity (testimony) privileged?

Answer 20

Criminal proceedings.

Question 21

What does the spousal immunity (testimony) privilege protect?

Answer 21

The privilege protects everything.

Question 22

For the spousal immunity (testimony) privilege to apply, when must the couple be married?

Answer 22

Must be married at the time of the trial.

Question 23

Who is the holder of the spousal immunity (testimony) privilege? Who can waive the privilege?

Answer 23

The witness spouse hold the privilege and can waive it.