Testimonial Privileges (Module 9)

Question 1

Testimonial Privileges Definition

Answer 1

Allow a person to refuse to disclose and/or prohibit others from disclosing certain confidential info

Privileges differ in state and federal law so ERIE will determine which gets applied in a given q

Question 2

Federal Common Law Testimonial Privileges

Answer 2

1) attorney client
2) spousal immunity
3) marital communications
4) psychotherapist / social worker
5) clergy
6) gov’t privileges

notably physician/patient is not in federal common law

Question 3

Attorney-Client Privilege

Answer 3

Attorney is a member of the bar or someone the client rxbly believes is; client must be seeking professional services

Only applies to confidential communications between A/C (not physical evidence, pre-existing documents, or statements knowingly made in presence of a 3P)

Communication between agents is covered

No privilege between joint-clients

Doesn’t apply if used to advance a crime or fraud or if dispute bt client and attorney

Question 4

Physician/Patient Confidentiality

Answer 4

State privilege only; varies by state if allowed in civil, criminal, both, etc.

Privileged if it was a professional relationship and the info given necessary for the purpose of diagnosing/treating the patient

Privilege does not apply when:
1) patient puts their physical condition at issue
2) aided in wrongdoing
3) patient agreed by contract to waive privilege
4) dispute is bt dr and patient
5) federal cases applying federal law

Question 5

Psychotherapist/Social-Worker Patient Privilege

Answer 5

Patient intended their communicatoin to be confidential, purpose of the communication was to get professional services, doesn’t apply though where the patient puts their mental condition at issue

Question 6

Spousal Immunity

Answer 6

One spouse can’t be compelled to testify against hte other spouse in any criminal proceeding

Only the witness-spouse can invoke (i.e., D can’t prevent them if they want to)

Can only be claimed while still married but covers info prior to and during the marriage

Communication must be made in reliance upon the intimacy of the marital relationship

Question 7

Confidential Marital Communications

Answer 7

Communications made during the marriage are privileged, applies in both civil and criminal proceedings

Either the witness-spouse or party-spouse can invoke, and can also prevent the other from disclosing

Covers only statements made during the marriage

Communication must be made in reliance upon the intimacy of the marital relationship

Question 8

When Marital Privileges Don’t Apply

Answer 8

1) comms/acts in furtherance of a future joint crime/fraud

2) legal actions bt spouses

3) cases where a spouse is charged with a crime against the testifying spouse or either of their children

4) statement is revealed to a third party

Question 9

Miscellaneous Testimonial Privileges

Answer 9

1) clergy
2) privilege against self-incrim
3) gov’t privilege (either confidential info or protect identity of informant)
4) accountant-client (state only)
5) professional journalist (state only)