Pg 52

Question 1

What is involved in the exception to the psychotherapist privilege for party’s mental/emotional state being at issue?

Answer 1

If you are sued for IIED, the defendant can ask about mental problems you’ve had. If the party’s mental state is relevant, this privilege doesn’t usually apply.

Question 2

If a witness to a car crash says the defendant ran the red light, does it matter if the witness was seeing a therapist and can you ask the witness about conversations with his therapist or call his therapist as a witness?

Answer 2

No, but the facts themselves are fair game so you can ask about the condition that the witness suffered from

Question 3

What is involved in the crime/tort exception to the psychotherapist privilege?

Answer 3

If a patient seeks a therapist’s help to commit a crime or tort, that communication is not privileged. If the patient just tells the therapist about a past crime or tort, the privilege still applies

Question 4

What is involved in the exception to the psychotherapist privilege for a relationship breakdown?

Answer 4

If there’s a malpractice suit or a suit for nonpayment, then the privileged communication that is necessary in order to prove or defend the case can be disclosed

Question 5

What is involved in the “therapist reasonably believes disclosure is necessary to prevent physical harm” exception to the psychotherapist privilege?

Answer 5

In such a case the professional is obligated to disclose the information

Question 6

What is involved in the “patient under 16” exception to the psychotherapist privilege?

Answer 6

If the patient is under 16 and the professional reasonably suspects that the patient is a victim of sexual or physical abuse, then the professional is obligated to report it to the authorities

Question 7

What is involved in the doctor-patient privilege?

Answer 7

This protects communications with doctors for any type of medical issue

Question 8

What are the elements for doctor-patient privilege to apply?

Answer 8

– Communication between a doctor and patient
– communication made in the course of the doctor patient relationship
– confidentiality

Question 9

If someone is not actually a doctor, but a patient reasonably believes that the person is, does doctor-patient privilege apply?

Answer 9

Yes

Question 10

Who is considered to be a patient under the doctor-patient privilege?

Answer 10

Someone seeking medical advice or treatment

Question 11

If a patient allows a doctor to testify as an expert at trial about what the patient told the doctor, then what has happened?

Answer 11

The patient has consented to that disclosure

Question 12

Is the identity of a patient privileged under doctor-patient privilege?

Answer 12

It depends on what the malady is. Seeing a podiatrist is not sensitive information, but an STD specialist would be

Question 13

What are the exceptions to doctor patient privilege?

Answer 13

– Patient’s physical/emotional/mental state is at issue
– criminal cases
– crime-tort exception
– relationship breakdown
– Dr. reasonably believes disclosure is necessary to prevent physical harm

Question 14

What would be a situation that would be an exception to the doctor-patient privilege if the patient’s physical/emotional/mental state is it issue?

Answer 14

If you are suing for mental anguish, then the opposing party can ask your GP about it

Question 15

What is involved in the criminal cases exception to doctor patient privilege?

Answer 15

Doctor-patient privilege does not apply to criminal cases. Privilege is automatically lost for criminal cases

Question 16

What is involved in the crime – tort exception to doctor patient privilege?

Answer 16

If the patient seeks the doctor’s help to commit a crime or tort, that communication is not privileged

Question 17

What is involved in the relationship breakdown exception to doctor-patient privilege?

Answer 17

If there’s a malpractice suit or a suit for nonpayment, the doctor is permitted to reveal necessary information

Question 18

What is involved in the doctor reasonably believes disclosure is necessary to prevent physical harm exception to the doctor-patient privilege?

Answer 18

He has a professional obligation to disclose this information

Question 19

What are the different marital privileges?

Answer 19

– Confidential communications privilege

– spousal privileges

Question 20

What is the point of the confidential communications privilege?

Answer 20

To ensure that married people can speak openly together

Question 21

What are the elements that make up the confidential communications privilege?

Answer 21

– Communication is between spouses
– they must be legally married
– confidentiality

***the event must happen during the marriage

Question 22

Is an uncommunicated writing such as a letter that was written but not sent included as communication between spouses for confidential communications privilege?

Answer 22

No, it must be communicated

Question 23

Is an act that was only observed, such as seeing a murder weapon in the house but not speaking about it, protected under the communication between spouses element of the confidential communications privilege?

Answer 23

No, this is not protected by the privilege because it was not technically “communicated“

Question 24

If a husband is prosecuted for domestic violence against his wife, and at trial the prosecution calls the wife to testify that the husband hit her, does the confidential communications privilege apply?

Answer 24

No because no confidential communication is being asked about. The witness is testifying to an act. Additionally the husband is prosecuted for a crime against his spouse, so the spousal exception applies.

Question 25

If a question on the stand is asking about how much alcohol the girlfriend saw her boyfriend drink, would that be protected by the confidential communications privilege?

Answer 25

No, because the two were not married, and also that was just an observation, not a communication. Additionally, it’s likely that many other people observed the drinking as well so it probably wouldn’t be confidential regardless

Question 26

Are boyfriends, girlfriends, and fiancés included in the confidential communications privilege?

Answer 26

No, it is only for a couple that is legally married

Question 27

If your marriage sucks, can that remove you from the confidential communications privilege?

Answer 27

No it doesn’t matter if your marriage sucks, you have to be divorced for it not to count.

Question 28

When must the communication between a married couple happen in order for the confidential communications privilege to apply?

Answer 28

While the couple was married. They do not still have to be married at the time of testimony, but the communication had to have happened while they were still married

Question 29

If a communication happened before marriage, does a confidential communications privilege apply?

Answer 29

No

Question 30

If a couple was married, gets divorced, and then later gets remarried, but the communication happened during the period that they were divorced, does the confidential communications privilege protect it?

Answer 30

No

Question 31

If communication is happening between a married couple where they reasonably believe no one will overhear, does the confidential communications privilege protect it?

Answer 31

Yes

Question 32

What is the rule about communicating in front of a third-party for confidential communications privilege?

Answer 32

If a married couple communicates in front of ANY third-party, that destroys the privilege. This includes kids

Question 33

If a husband is sued by the plaintiff for fraud, and at trial the plaintiff calls the husband’s ex-wife to testify that while they were married and in front of their teenage son, the husband told the ex that he filled phones with sand, would that be permissible under the confidential communications privilege?

Answer 33

That would not be protected by the privilege because the communication happened in front of the son

Question 34

Who is the holder of the confidential communications privilege?

Answer 34

Both spouses are the holders. So if they divorce and one spouse wants to testify about something that the other one told her, the husband could stop her from doing that

Question 35

What are the exceptions to the confidential communications privilege?

Answer 35

– crime/fraud exception – proceeding for the benefit of one spouse or child of the spouse – litigation between spouses – proceeding against one spouse for committing a crime against the person/property of the other spouse or their kids – spouse is a criminal defendant

Question 36

What is involved in the crime/fraud exception to the confidential communications privilege?

Answer 36

You cannot ask a spouse to help you commit a crime or fraud, but you can ask for help with a tort

Question 37

If a husband is sued by the plaintiff for fraud, and the P calls the H’s wife to testify that he asked her to help him fill iPhones with sand, but the wife doesn’t want to testify, can the husband preclude this testimony under the confidential communications privilege?

Answer 37

No because the husband asked the wife to help him commit fraud, so the crime/fraud exception would apply

Question 38

If the defendant is prosecuted for theft and the prosecution called his ex-wife to testify that while they were married defendant told her he stole her necklace and asked her to fence it for him, is the wife permitted to testify that H asked her to fence it for him under the confidential communications privilege?

Answer 38

Yes because he asked her to help him commit a crime/fraud

Question 39

If there is a commitment proceeding for a spouse, can the other spouse disclose communications with her and not be restricted by the confidential communications privilege if the purpose is to figure out what is best for the one that is disabled?

Answer 39

Yes under the exception of “proceeding for the benefit of one spouse or the child of one spouse“

Question 40

If a court is deciding whether to remove a child from the house, can the parents refuse to disclose their communications under the confidential communications privilege?

Answer 40

No, because under the exception for “proceeding for the benefit of one spouse or the child of a spouse“ these communications are necessary to be disclosed in the best interest of the child

Question 41

What is involved in the exception to the confidential communications privilege for “litigation between spouses“?

Answer 41

If there is a divorce proceeding or any other proceeding between the spouses, the one spouse cannot stop the other from testifying