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Evidence > Privileges > Flashcards

Privileges Flashcards

1
Q

Privileges

A
  • Fed. Rules defer to Federal Common law privileges
    • Exception - Diversity Cases - State rules apply
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2
Q

What are the 4 communication privileges recognized in federal courts and in all 50 states?

A
  1. Attorney-Client
  2. Psychotherapist-Client
  3. Clergy-Penitent
  4. Husband-Wife
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3
Q

What are the steps to analyzing a privilege issue?

A

Excluding evidence by way of privilege only occurs if:

  1. The persons in the conversation must be in a protected relationship
  2. A communication must have occured
  3. The communication must be made with the intent of confidentiality
  4. Only the holder of the privilege can assert the privilege
  5. The holder didn’t waive the privilege at any point
  6. No exceptions to the privilege apply
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4
Q

Confidential Communication

A
  • Necessary for priv. to apply
  • If overheard, privilege is destroyed, unless:
    • no knowledge of 3d party’s presence or
    • 3d party is nec. to assist in communication (translator)
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5
Q

Waiver of Privilege

A

Privilege may be waived if the person who holds the privilege:

  1. Fails to assert the priv. in a timely manner (when testimony is offered)
  2. Voluntarily discloses communication to a 3d party, or
  3. Contractually waives it in advance

Wrongful disclosure is not a waiver

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6
Q

In the attorney client priv., who is the holder and what is protected?

A
  • Holder - Client
  • Protected:
    • Communications made for the purpose of seeking prof. legal advice or services, AND
    • WOrk products prepared in anticipation of litigation (not observations)
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7
Q

What is the scope of persons the attorney-client privilege can apply to?

A

Anyone who is assisting and furthering the representation, including paralegals, secrataries, and doctors making physical exams

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8
Q

When is attorney-client privilege destroyed ?

A
  1. When the parties are aware that someone else is listening to the conversation or
  2. Waived
  3. Priv. can survive client’s death
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9
Q

In what circumstances is there not attorney-client privilege?

A
  1. Client is planning a future crime and fraud
  2. Relevant to dispute b/w attorney and client (malpractice allegation)
  3. Relevant to dispute b/w parties who claim through the same deceased client
  4. Between former co-clients who are now adverse to each other
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10
Q

Are fee arrangements privileged information?

A

NO

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11
Q

Attorney-Client Privilege - Work Product

A
  • Documents prepared by attorney for his own use in connection with the client’s case aren’t covered by a-c priv. b/c not communications
  • Protected under work-product doctrine and not subject to discovery, unless party seeking disclosure
    1. Demonstrates substantial need, and
    2. can’t obtain the info by any other means without undue hardship
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12
Q

When do doctor-patient privileges exist?

A

Through State Statute - Protected So long as co. made for the purp. of obtaining medical treatment

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13
Q

When does the Physician-Patient Priv. not exist?

A
  1. The info was acquired for reasons other than treatment
  2. The patient’s physical condition is at issue
  3. Statement is made as part of the commission of a crime or tort
  4. Dispute exists b/w patient and physician
  5. Patient contractually waives privilege, OR
  6. Case is brought in federal court & state law doesn’t apply (most cases involve a federal question)
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14
Q

Psychotherapist-Patient Privilege

A
  • Patient hold priv.
  • Priv. doesn’t exist if:
    1. Patient’s mental condition is at issue
    2. Statement was result of state ordered exam or
    3. Case is commitment proceeding against patient
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15
Q

Spousal Immunity

A

Protects all communications, regardless of confidentiality, both during and before marriage

  • Spouse of criminal D can’t be called as a witness by the prosecution
  • Married pers. can’t be compelled to testify against his spouse in any criminal proceeding regardless of who D is
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16
Q

Spousal immunity - Holder of the Privilege

A
  • Federal Courts & Majority of States - Witness spouse holds the the priv & may choose to test. but can’t be compelled to do so
  • State Courts & Minority of States - Party spouse holds priv. & may prevent witness spouse from testifying, even if witness spouse wants to testify
17
Q

Confidential Marital Communications

A

Communications made b/w spouses while they were married is privileged if the communication was made in reliance on the sanctity of marriage

18
Q

Confidential Marital Communications - Whol holds the privilege?

A

Majority - Held by both spouses

Minority - Only the communicating spouse can assert the priv.

19
Q

When is marital communication privilege terminated?

A
  • Never terminates
  • Time for asserting priv. extends beyond the termination of the marriage
20
Q

When is Spousal Immunity Terminated ?

A
  • Ends when the marriage ends
21
Q

What are the exceptions to the marital communication privilege and Spousal Immunity ?

A
  1. where one spouse is suing the other
  2. When one spouse is charged with a crime against the other spouse OR
  3. One spouse is charged with a crime against a child
22
Q

The religious Privilege protects what confidential communications?

A
  1. From penitent to clergyman
  2. Under conditions of confidentiality
  3. With inteent to give spiritual guidance
23
Q

When does the 5th amendment privilege against self-incrimination apply?

A
  • Allows witness to refuse to give testimony that may tend to incriminate him
    • priv. only belongs to human beings
    • Covers only current statements
24
Q

When can 5th amendment rights be waived

A
  • When the holder of the priv. voluntarily discloses the privileged information
  • BUT it can be asserted again
25
Q

What are the requirements for spousal immunity?

A
  1. A valid marriage
  2. A criminal case
  3. No divorce
26
Q

What type of evidence does the 5th amendment not apply to?

A
  1. Blood
  2. hair
  3. handwriting samples
  4. fingerprints
  5. lineups
  6. photo IDs
27
Q

May the prosecutor use the defendant’s assertion of the 5th amendment priv. against him?

A

No

  • Can’t comment on the defendant’s failure to take the stand
  • Can’t argue that the jury should draw a negative inference from the assertion of the priv.
28
Q

When can witnesses and parties in civil cases assert the 5th amendment ?

A

When on the stand

29
Q

Immunity

A
  • Witness may be compelled to provide incriminating test. if the gov’t grants him immunity from prosecution
  • NOT entitled to Transactional Immunity
    • Protection against prosecution for the entire transaction about which he is testifying
  • Gov’t const. req. to offer Use Immunity
    • Prohibits use of the compelled test. against the witness
  • If gov’t does prosecute the witness
    • Gov’t has burden to show that the compelled test. didn’t provide an investigatory lead that was helpful to the prosecution
30
Q

What is the consequence of a failure to assert a privilege when a priv. applies to a piece of evidence ?

A

Priv. is waived as to whatever info was objectionable

31
Q

Governmental Privilege

A

The gov’t, at all levels, is privilegd against disclosing

  1. The identity of an informant in a criminal case, and
  2. communication of official information by or public officials
    • Info that relates to the internal affairs of the gov’t & is not open to the public
32
Q

What protections are offered to a witness with transactional immunity ?

A

The witness can’t be prosecuted for the underlying offense

33
Q

What protection does a witness with use immunity have?

A

Witness can’t have their testimony used against them BUT they can still be charged with the underlying offense

34
Q

When can an opposing party use a party asserting their 5th Amend. right against them

A
  • Only in Civil Cases
  • Never in criminal cases

Evidence (13 decks)

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