Testimonial Privileges (come back to p 29) Flashcards
What is governing law under FRE?
Under CA?
FRE –> federal rules DO NOT provide specific privilege rules. They are based on common law.
CA –>
- privileges are statutory
- privilege law is exempt from prop 8
What rules apply with regards to the attorney-client privilege?
FRE?
In CA?
FRE –>
communications between attorney and client are privileged if:
1. they were intended to be confidential; and
2. made to facilitate legal services
NOTE –> CLIENT holds privilege and privilege survives even client’s death
SEE also –> exceptions
CA distinction –> SAME, except privilege ceases to apply when deceased client’s estate has been fully distributed and personal rep has been discharged
What rules apply with regards to the attorney-client privilege if client is a corporation?
FRE?
In CA?
FRE –> privilege APPLIES if employee/agent is authorized to make statement to attorney on behalf of corporation
CA –> privilege APPLIES if:
- EE/agent is the natural person to speak to atty on behalf of corporation in the matter (Example –> their in-house counsel or CEO); OR
- EE/agent DID something for which corp may be held liable, and corp issued instruction to tell atty what happened.
NOTE –> as applied, this distinction is not significant
What are the exceptions to attorney-client privilege?
Under FRE (4)?
IN CA (+1)?
- services were sought to FURTHER CRIME or FRAUD;
- relates to breach of duty btwn lawyer and client
- client puts services at issue
- Parties were previously jointly represented by lawyer, and now statement is offered by one against the other
IN CA –> Same, PLUS:
1. lawyer REASONABLY BELIEVES disclosure is NECESSARY to prevent crime likely to result in DEATH or SUBSTANTIAL BODILY HARM
What rules apply w regards to physician-patient privilege?
FRE?
Multi-state (majority view)?
CA law?
FRE –> no such privilege
Multi-state –> Majority approach is that patient has privilege to prevent disclosure of:
- CONFIDENTIAL INFO conveyed to physician (or dentist or nurse)
- for the purpose of medical treatment
CA –>
- must be licensed physician (or someone patient reasonably believes is licensed) or staff
- must be for the purpose of diagnosis or treatment
What EXCEPTIONS apply w regards to physician-patient privilege?
Multi-state (majority view)(5)?
CA law (+3)?
MULTI-STATE –>
- services were sought to further CRIME or TORT or to escape apprehension
- Case involves claim of breach of fiduciary duty btwn patient and physician
- Patient has put physical condition at issue
- Patient has waived privilege
- state law does not supply a privilege
ADDITIONAL CA exceptions:
- privilege does NOT apply in criminal cases
- does not apply to info physician is required to report to a public office (EXAMPLE –> gunshot wounds, communicable diseases)
- Im commitment proceedings, competency proceedings, or proceedings to revoke or suspend a license
What rules apply w regards to psychotherapist/social worker-client privilege?
FRE?
CA law?
FRE –> Confidential info between client/patient and psychotherapist or social worker is privileged
CA –> SAME, except covers more people (incl. sexual assault counselors, DV counselors, school psychologists, marriage counselors, and mental health nurses, assistants, and interns)
What EXCEPTIONS apply w regards to psychotherapist/social worker-client privilege?
FRE?
CA law?
PRIVILEGE does NOT apply if:
- services were sought to AID in crime/fraud or to escape apprehension
- Case involved breach of duty
- patient put mental condition at issue
Additional CA exceptions:
- statements to court-appointed therapist
- therapist has REASONABLE CAUSE to believe:
(i) patient is a danger to himself or others AND
(ii) disclosure is necessary to end danger - patient is under 16 and therapist has REASONABLE CAUSE to believe:
(i) child has been VICTIM of CRIME AND
(ii) disclosure is in his BEST INTERESTS
What is the rule w regards to spousal immunity?
FRE ?
CA distinction?
FRE –>
- one spouse cannot be compelled to testify against another spouse in a CRIMINAL proceeding
- ONLY WITNESS spouse can invoke privilege
- can be claimed only DURING marriage, but covers info learned before and during marriage
CA DISTINCTION –>
- spousal immunity applies to both CIVIL and CRIMINAL proceedings
- ALSO applies to DP’s
What is the rule w regards to marital communications privilege?
FRE ?
CA distinction?
FRE –>
- applies in ALL cases (criminal and civil)
- protects CONFIDENTIAL spousal communications made during marriage
- Each spouse can claim privilege to prevent other spouse from disclosing confidential marital communications
- privilege survives marriage
CA –> SAME, but also applies to DP’s
What is the rule w regards to privilege against self-incrimination?
FRE ?
CA?
See 5th amendment
CA –> Same
What is the rule w regards to clergy-penitent privilege?
Federal?
CA?
Federal –> person has a privilege to:
- REFUSE to disclose, AND
- to PREVENT others from disclosing,
- a confidential communication made by person to a member of clergy IN THEIR CAPACITY as spiritual advisor
CA –> protects penitential communications made to cleric:
1. who routinely receives such communications; AND
2. whose religion requires them to be kept secret
NOTE –> both penitent and cleric hold privilege
Is there an accountant-client privilege?
Federal –> NO
CA –> NO
Is there a professional journalist privilege?
Federal –> NO
CA –> “Journalist Contempt Shield” —> journalist CANNOT be held in contempt for refusing to reveal:
(i) a confidential source; OR
(ii) any unpublished background material
NOTE –> not a true privilege bc journalist can be sanctioned in other ways. For example, discovery sanctions if journalist is a party.
What are the rule re: government privileges?
Federal?
CA?
Federal law –> official info not otherwise open to public (or identity of informer) may be protected by gov privilege)
- NO privilege exists if identity of informer is voluntarily disclosed by holder of privilege
CA –>
- if FED or STATE statute forbids disclosure, it’s privileged
- Absent a statute, official info is privileged ONLY IF trial judge concludes that public interest in keeping it confidential OUTWEIGHS need for disclosure
