Kaplan Pgs 459-477 - Privileges And Witnesses

Question 1

What rules apply as far as choice of law goes in federal court?

Answer 1

– In federal court and as a default on the MBE, apply the FRE
– exception in federal diversity cases: state law governs substantive claims and privileges, burdens of proof/presumptions, and dead man’s statutes (although the FRE still applies to procedure)

Question 2

What privileges are recognized by the federal courts?

Answer 2

• attorney-client
  – spousal (husband-wife): both the testimony privilege and confidential communication privilege
  – clergy-penitent
• psychotherapist-patient

Question 3

What privilege does state law usually recognize, but the federal common law does not?

Answer 3

Physician – patient privilege ***** so on the MBE always look to see what law is applicable

Question 4

What law is privilege usually governed by?

Answer 4

Usually common law (subject to any superseding state law) unless the following provides otherwise:
- US Constitution
– federal statute
– rules prescribed by the Supreme Court

Question 5

What are the things that no person generally has a privilege to do?

Answer 5

Refuse to be a witness, refuse to disclose any matter, refuse to produce any object or writing, prevent someone else from being a witness, or prevent someone from disclosing something or from producing an object or writing

Question 6

What is attorney – client privilege?

Answer 6

The client has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications made for the purpose of getting professional legal services.

This includes confidential communications between:

• the client/his rep and his lawyer/lawyer’s rep
• his lawyer and his lawyer’s rep
• among lawyers and their reps

Question 7

What is included in the communications that are considered to be confidential under the attorney – client privilege?

Answer 7

Anything that is not intended to be disclosed to third persons. This is limited to communications with the client that are either expressly made confidential or that the attorney could reasonably assume under the circumstances would be.

Question 8

Who is considered in the definition of an attorney?

Answer 8

Anyone authorized or reasonably believed by the client to be authorized to engage in the practice of law

Question 9

Who is considered to be a representative of an attorney?

Answer 9

Someone employed by the attorney to assist the attorney in the rendition of professional legal services

Question 10

Does attorney client privilege only protect verbal communications?

Answer 10

No it’s been expanded to include spoken words, written words, and acts that intend to convey a message

Question 11

Do pre-existing written documents that are given to an attorney become privileged?

Answer 11

No

Question 12

Can basic facts such as the name, occupation, or address of the client or the identity of the attorney ever be included under attorney client privilege?

Answer 12

No

Question 13

Who is the holder of the attorney-client privilege?

Answer 13

Client. But the privilege can be claimed by the client, his guardian, his personal representative if he is deceased, or his attorney on his behalf

Question 14

What are situations that the attorney-client privilege would not apply?

Answer 14

• If the lawyer’s services were sought to enable someone to commit a crime or fraud
  – if the communication relates to an issue of breach of duty by the lawyer to his client or the client to his lawyer
  – if the communication concerns an issue about an attesting document that the lawyer is the attesting witness to
  – if the communication relates to a matter common interest between two or more clients and was made by any of them to the attorney that they had in common and is now being offered in an action between any of the clients

Question 15

What is doctor-patient privilege?

Answer 15

Patient has a privilege to refuse to disclose, or to prevent anyone else from disclosing, communications made for the purpose of diagnosis or treatment of his physical, mental, or emotional condition, including alcohol or drug addiction.

This includes communications with the doctor, or anyone that participates in the diagnosis/treatment under the direction of the doctor, including members of patient’s own family

Question 16

What is the only situation that doctor-patient privilege will apply?

Answer 16

It will only be enforced in federal court when state law provides the rules of decision and the particular state recognizes that privilege.

***There’s no federal recognition of doctor-patient privilege

Question 17

What’s the definition of a patient under the doctor-patient privilege?

Answer 17

Person that consults, is examined, or is interviewed by physician or psychotherapist

Question 18

What’s the definition of physician under the doctor-patient privilege?

Answer 18

Someone authorized to practice medicine in any state/nation, or someone reasonably believed by the patient to be so authorized

Question 19

What’s the definition of a psychotherapist according to the doctor-patient privilege?

Answer 19

Someone authorized to practice medicine or licensed as a certified psychologist in any state/nation, or someone reasonably believed by the patient to be so authorized, while diagnosing or treating a mental or emotional condition, including alcohol or drug addiction.

Question 20

What are the different professions that are included in the doctor-patient privilege?

Answer 20

Physicians, social workers, psychotherapists, psychologists

Question 21

Who are people that are allowed to be present during a confidential communication between a doctor and a patient and will not destroy privilege?

Answer 21

– Anyone present to further the interest of the patient during the consultation
– anyone reasonably necessary for the transmission of the communication
- anyone participating in the diagnosis or treatment under the direction of the physician/psychotherapist, including members of patient’s family

Question 22

If a patient makes a statement to the secretary of a physician, is that privileged under doctor-patient privilege?

Answer 22

No

Question 23

If a patient makes a statement to a nurse practitioner in the examination room before seeing the doctor, is that statement privileged under doctor-patient privilege?

Answer 23

Yes

Question 24

What is required for doctor-patient privilege to attach?

Answer 24

That the patient be consulting the doctor for the purpose of diagnosis or treatment.

This doesn’t include:

• Examinations in preparation for litigation or by court-appointed attorneys
• autopsy reports
• the amount of the fee

Question 25

What are situations that there would be no doctor-patient privilege?

Answer 25

– Communication relevant to an issue in proceedings to hospitalize a patient for mental illness if the doctor determined that the patient was in need of hospitalization
– if the court orders an examination of the physical, mental, or emotional condition of a patient, then communications made in the course of that examination are not privileged regarding anything for the purpose of the examination
– communications relating to the condition of a patient in any proceeding where he relies upon the condition as an element of his claim or defense

Question 26

When determining whether Doctor-patient privilege applies if the client is examined by a doctor at the request of his attorney, what do you need to consider?

Answer 26

The primary purpose for the consultation:
- for medical treatment: doctor-patient privilege applies and is waived if the client puts his medical condition at issue
– for the attorney to have an expert opinion in order to litigate or advise his client: doctor-patient privilege would not apply because no treatment was contemplated, but attorney-client privilege would cover the communications between the client and the doctor because it is necessary for the attorney’s ability to conduct the case

Question 27

What are the two different parts of spousal privileges?

Answer 27

– Spousal testimony privilege

- spousal communication privilege

Question 28

What is the difference between the spousal testimony privilege and the spousal communication privilege?

Answer 28

– spousal testimony privilege/spousal immunity: the right of a witness-spouse not to be forced to testify against their current spouse. This only applies in criminal trials, it protects testimony against the spouse, the couple has to be married at the time of trial, and it can be waived by the witness – spouse
– spousal communication privilege/confidential communication privilege: protects confidential communications during a legally valid marriage. This applies to any type of case, it protects confidential communications, the couple had to have been married at the time of the communication, and it can only be waived by both spouses together

Question 29

What are the two different approaches to spousal testimony privilege?

Answer 29

– Common law: a married person whose spouse is the defendant in a criminal case may not be called as a witness for the prosecution and may not be compelled to testify against his spouse. This is the incapacity one supposed to testify against the others. Exception: for cases prosecuting the husband for violent offences committed against the wife
– modernly in federal court and most state courts: the witness-spouse, rather than a party-spouse, holds the privilege. The idea is that a criminal defendant cannot keep his spouse off the stand

Question 30

What is involved in the spousal communication privilege?

Answer 30

In any type of case, either spouse has a privilege to refuse to disclose, or to prevent someone else from disclosing, a confidential communication made between spouses while they were married. The idea is to encourage open communication.

Question 31

When must the spouses have been married in order for spousal testimony privilege to apply and spousal communication privilege?

Answer 31

• spousal testimony: at the time of trial

– spousal communication: at the time of the communication

Question 32

At what point does the spousal communication privilege terminate?

Answer 32

Only if the spouses were no longer legally married at the time the communication occurred. It doesn’t matter if they had a terrible relationship, so long as they were legally wed when the statement was made - it is protected

Question 33

What is the exception to the spousal communication privilege?

Answer 33

Recent communications made in furtherance of an ongoing crime or tort are not privileged because the spouses are considered to be joint participants

Question 34

Does spousal communication privilege protect statements that were made before the couple was legally married?

Answer 34

No, they had to have been legally married at the time of the communication

Question 35

When is a communication considered to be confidential in order for a spousal privilege to apply to it?

Answer 35

If it was made privately to the spouse and not intended for disclosure to any other person

Question 36

What are situations that would be considered to be exceptions to the spousal privileges so that a communication would not be considered to be confidential?

Answer 36

– if the communication or act was in furtherance of a future crime or fraud
– if it was destructive of the family unit, such as relating to spousal or child abuse
– in a proceeding brought by or on behalf of either spouse to establish his competence

Question 37

What are the rules relating to the time communications are made for both the spousal testimony privilege and the spousal communication privilege?

Answer 37

• spousal testimony privilege: the statement is protected before marriage, and during marriage, but it is completely lost upon divorce
  – spousal communication privilege: the statement is not protected before marriage, it is protected during marriage, and is still protected upon divorce because it exists for confidential communications made during the marriage

Question 38

What is involved in the clergy-penitent privilege?

Answer 38

A person has a privilege to refuse to disclose and to prevent another person from disclosing any confidential communication made by that person to a clergyman in his professional character as spiritual advisor

Question 39

Who is considered to be a clergyman in order for the clergy-penitent privilege to apply?

Answer 39

Priests, ministers, rabbis, accredited Christian science practitioners, or any other similar functionary of a religious organization, or anyone the person reasonably believes is one of those things

Question 40

When is a communication deemed to be confidential under the clergy – penitent privilege?

Answer 40

If it was made privately and not intended for further disclosure except to persons present in furtherance of the purpose of the communication

Question 41

Who can claim the privilege of clergy – penitent?

Answer 41

It can be claimed by the person, his guardian, or the clergyman on behalf of the person

Question 42

What are all the different types of privileges that a person can claim?

Answer 42

– Attorney-client privilege
– doctor-patient privilege
– spousal privilege
– clergy-penitent privilege
– political vote privilege
– trade secrets
– secrets of state or other official information
– identity of informer
– fifth amendment privilege against self-incrimination

Question 43

What is the political vote privilege?

Answer 43

Every person has a privilege to refuse to disclose how they voted in a political election by secret ballot.

This does not apply if the court finds that the vote was cast illegally or if they decide that disclosure should be compelled according to election laws

Question 44

What is a privilege for trade secrets?

Answer 44

A person has a privilege that can be claimed by himself/his agent/his employee, to refuse to disclose and to prevent others from disclosing trade secrets that he owns.

Question 45

What is involved in the identity of informer privilege?

Answer 45

The United States, or any state/subdivision, has a privilege to refuse to disclose the identity of anyone that has given information or assisted in investigating a violation of the law. The privilege can be claimed by an appropriate representative of the public entity

Question 46

What is a newsman’s privilege?

Answer 46

Shield laws that give a qualified privilege for newsmen to refuse to reveal their sources

Question 47

What is executive privilege?

Answer 47

The President of the United States has a constitutional privilege to refuse to disclose information.
– For matters of national security, this is absolute
– for other information, this is just a qualified privilege, so disclosure is required if there’s a showing of special need

Question 48

What is involved in the fifth amendment privilege against self-incrimination?

Answer 48

The accused in a criminal trial has a fifth amendment privilege to refuse to take the stand. But if he voluntarily testifies on direct, then the privilege does not prevent cross examination. If the accused refuses to be cross examined, the judge can strike from the record his direct testimony.

Question 49

Does testimony that is given at a preliminary hearing waive the fifth amendment privilege?

Answer 49

No and neither does the defendant’s attempt to enforce his constitutional rights at a preliminary hearing. This means that the prosecution cannot introduce that evidence at trial and cannot comment on it.

Question 50

How does the fifth amendment privilege against self incrimination apply to witnesses?

Answer 50

The witness has a privilege to refuse to answer questions if the answers would expose him to criminal liability

Question 51

How does the fifth amendment privilege against self-incrimination relate to people taking the stand?

Answer 51

– the accused has the right to refuse to take the stand
– witnesses cannot refuse to take the stand, they can only refuse to answer questions if the answers would expose them to criminal liability

Question 52

The fifth amendment privilege again self-incrimination only applies to what kind of evidence?

Answer 52

Evidence that is testimonial in nature. This means that real and demonstrative forms of evidence are not protected

Question 53

What kinds of things can an accused be compelled to give that are not protected by the fifth amendment privilege?

Answer 53

Writing, hair, blood samples, fingerprints, standing in the lineup, etc.

Question 54

If someone is granted immunity, how does that relate to the fifth amendment privilege?

Answer 54

The fifth amendment privilege does not exist

Question 55

What is transactional immunity?

Answer 55

This prevents a witness from being prosecuted for any crime referred to in his testimony. This gives more protection than the fifth amendment.

Although the witness can still be prosecuted for perjury, and immunity doesn’t extend to a transaction that is referred to in the answer but is not responsive to the question that is asked

Question 56

If a person holds a privilege, how does that privilege get waived?

Answer 56

If the person voluntarily discloses, or consents to disclose any significant part of the privileged matter.

Question 57

What are situations that privilege would not be waived?

Answer 57

If the disclosure was compelled erroneously, or made without an opportunity to claim the privilege.

I.e.: if at the defendant’s first trial for murder, the judge forced D’s wife to testify that he told her he was going to kill the guy by threatening to charge the wife with contempt if she didn’t testify and that resulted in a hung jury, just because she was forced to testify at the first trial does not mean there was a waiver of her privilege not to testify the second trial

Question 58

Is a judge or an attorney allowed to comment on a claim of privilege?

Answer 58

No, because no inference can be drawn from the assertion of a privilege

Question 59

For jury cases when a privilege is involved, how does the court have to proceed?

Answer 59

They have to conduct the proceedings to make sure that the claim of privilege can be done as much as possible without the knowledge of the jury

Question 60

Is it permissible to draw an adverse inference from someone asserting their fifth amendment privilege?

Answer 60

– Civil case: yes when the probative evidence has been presented against the witness
– criminal case: no

Question 61

During an inquiry into the validity of a verdict, a juror may not testify about what things (aka: no impeachment rule)?

Answer 61

• Any statement made or incident that occurred during the jury deliberations
  – the effect of anything on that juror’s vote or another juror’s vote
  – any juror’s mental processes concerning the verdict or indictment

Question 62

In what circumstance would a juror be allowed to testify about something to do with his experience?

Answer 62

– If he makes a clear statement that he relied on racial stereotypes or animus to convict a criminal defendant (so long as there’s a showing that one or more jurors made statements exhibiting overt racial that cast serious doubt on the fairness impartiality of the jury’s deliberations and verdict - The racial animus must be a significant motivating factor)
- extraneous prejudicial information being improperly brought to the jury’s attention
– outside influence being improperly brought to bear on any juror
– mistakes being made in entering the verdict on the verdict form

Question 63

What’s the difference between how the common law and the federal rules treat mental capacity of a witness relating to competency?

Answer 63

– common law: witnesses must have capacity to accurately observe, remember, and relate the facts
– federal rules: mental competence questions go to weight instead of admissibility

Question 64

What is the difference between common law and the federal rules with relation to disqualification for the competency of witnesses?

Answer 64

• common law: felons, atheists, infants, mental incompetents, financially interested parties, and spouses of parties are disqualified
  – federal rules: every person is competent except if the case turns on state law/diversity cases, then the Erie doctrine requires state rules of competence control

Question 65

What’s the difference between the common law and the federal rules in relation to how a witness must make an affirmation of truthfulness?

Answer 65

– common law: witness must declare he will testify truthfully, and show that has the mental capacity to understand the obligation to tell the truth
– FRE: witness must declare to testify truthfully by oath or affirmation in a form designed to impress that duty on the witness’ conscience

Question 66

What is the difference between the common law and the FRE when it comes to a judge being a witness?

Answer 66

– common law: judge is not disqualified, but the court can exercise discretion to avoid prejudice
– FRE: presiding judge is absolutely disqualified

Question 67

What is the difference between the common law and the FRE when it comes to jurors acting as witnesses?

Answer 67

– Common law: jurors are competent to testify

– FRE: jurors are disqualified as witnesses if either party objects

Question 68

What is the difference between the common law and the FRE when it comes to attorneys acting as witnesses?

Answer 68

Both the common law and FRE say that an attorney can act as a witness if he is competent and subject to ethical standards

Question 69

What is the difference between the common law and the FRE when it comes to Deadman’s statutes?

Answer 69

– Common law: Dead man’s statutes disqualify financially interested witnesses in civil suits from testifying about any conversations with the decedent
– FRE: abandoned Deadman’s statutes except when the Erie doctrine requires state law to be followed

Question 70

What are the two times that a writing can be used to refresh a witness’ memory?

Answer 70

While testifying or before testifying

Question 71

If the producing party of an object or document that is used to refresh a witnesses’ memory claims that it includes an unrelated matter, what must the court do?

Answer 71

Examine the writing in camera, delete any unrelated portion, then order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record

Question 72

If privileged material is used to refresh a witness’ memory, has a waiver occurred?

Answer 72

Yes, so the adverse party is permitted to inspect the document

Question 73

Is the court permitted to call and examine a witness on its own volition?

Answer 73

Yes, and then each party is entitled to cross-examine the witness. The court can examine the witness regardless of who calls the witness

Question 74

During an inquiry into the validity of a verdict, a juror may not testify about what things (aka: no impeachment rule)?

Answer 74

• Any statement made or incident that occurred during the jury deliberations
  – the effect of anything on that juror’s vote or another juror’s vote
  – any juror’s mental processes concerning the verdict or indictment

Question 75

In what circumstance would a juror be allowed to testify about something to do with his experience?

Answer 75

– If he makes a clear statement that he relied on racial stereotypes or animus to convict a criminal defendant (so long as there’s a showing that one or more jurors made statements exhibiting overt racial that cast serious doubt on the fairness impartiality of the jury’s deliberations and verdict - The racial animus must be a significant motivating factor)
- extraneous prejudicial information being improperly brought to the jury’s attention
– outside influence being improperly brought to bear on any juror
– mistakes being made in entering the verdict on the verdict form

Question 76

What’s the difference between how the common law and the federal rules treat mental capacity of a witness relating to competency?

Answer 76

– common law: witnesses must have capacity to accurately observe, remember, and relate the facts
– federal rules: mental competence questions go to weight instead of admissibility

Question 77

What is the difference between common law and the federal rules with relation to disqualification for the competency of witnesses?

Answer 77

• common law: felons, atheists, infants, mental incompetents, financially interested parties, and spouses of parties are disqualified
  – federal rules: every person is competent except if the case turns on state law/diversity cases, then the Erie doctrine requires state rules of competence control

Question 78

What’s the difference between the common law and the federal rules in relation to how a witness must make an affirmation of truthfulness?

Answer 78

– common law: witness must declare he will testify truthfully, and show that has the mental capacity to understand the obligation to tell the truth
– FRE: witness must declare to testify truthfully by oath or affirmation in a form designed to impress that duty on the witness’ conscience

Question 79

What is the difference between the common law and the FRE when it comes to a judge being a witness?

Answer 79

– common law: judge is not disqualified, but the court can exercise discretion to avoid prejudice
– FRE: presiding judge is absolutely disqualified

Question 80

What is the difference between the common law and the FRE when it comes to jurors acting as witnesses?

Answer 80

– Common law: jurors are competent to testify

– FRE: jurors are disqualified as witnesses if either party objects

Question 81

What is the difference between the common law and the FRE when it comes to attorneys acting as witnesses?

Answer 81

Both the common law and FRE say that an attorney can act as a witness if he is competent and subject to ethical standards

Question 82

What is the difference between the common law and the FRE when it comes to Deadman’s statutes?

Answer 82

– Common law: Dead man’s statutes disqualify financially interested witnesses in civil suits from testifying about any conversations with the decedent
– FRE: abandoned Deadman’s statutes except when the Erie doctrine requires state law to be followed

Question 83

What are the two times that a writing can be used to refresh a witness’ memory?

Answer 83

While testifying or before testifying

Question 84

If the producing party of an object or document that is used to refresh a witnesses’ memory claims that it includes an unrelated matter, what must the court do?

Answer 84

Examine the writing in camera, delete any unrelated portion, then order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record

Question 85

If privileged material is used to refresh a witness’ memory, has a waiver occurred?

Answer 85

Yes, so the adverse party is permitted to inspect the document

Question 86

Is the court permitted to call and examine a witness on its own volition?

Answer 86

Yes, and then each party is entitled to cross-examine the witness. The court can examine the witness regardless of who calls the witness