Privileges

Question 1

General Rule of Privileges

Answer 1

Common law, not the FRE, governs privileges except for civil cases where the state law governs the outcome of the case then state law controls. You can invoke a privilege at any stage of the proceeding and even if you are not a party.

Question 2

Waiver of Privilege:

Answer 2

Privilege can be waived by:
(1) Words/action
Ex: voluntarily testifying for marital privilege.
(2) Forfeiture by failing to invoke timely
(3) Voluntary disclosure of privileged information, disclosing the communication, not the facts underlying
(4) If privileged material becomes the subject of litigation (Ex: when a party intentionally discloses privileged material in litigation to support their position)

Question 3

Scope/Limits of Privilege:

Answer 3

If an unnecessary 3rd party is present, then no privilege exists. Also, new crimes are not protected under privilege. Also, there may be constitutional limits where privileged information exculpates a criminal defendant.

Question 4

Attorney Client Privilege:

Answer 4

Attorney client communications are privileged so long as it is made for the purpose of facilitating the rendition of professional legal services to the client. Includes even before you become a client The attorney-client privilege covers law clerks, paralegals, and hired experts acting in the scope of the attorney’s legal representation.

Question 5

Crime/Fraud Exception

Answer 5

Communications that are in furtherance of a contemplated or ongoing crime or fraud are not protected by privilege. It is not based on the atty’s intent but rather the client’s intent, still applicable even if attorney did not know but client intended it

Question 6

Inadvertent Waiver

Answer 6

Occurs when privileged material is disclosed accidentally. Does not result in waiver if: (1) unintentional; (2) reasonable steps were taken to prevent disclosure; (3) prompt efforts were made to rectify the error.

Question 7

Marital Communications Privilege:

Answer 7

Prevents the disclosure of confidential communications between spouses. The privilege requires:
(1) A communication between spouses (no need to be verbal so long as it was intended to be a communication);
(2) Communication was during valid marriage;
(3) Communication was intended to be confidential (presumed if 1&2 are met)
Presumed
Reasonable expectation of confidentiality (Location; volume; etc.)
Presence of 3rd party indicates not intended to be confidential. Including children.
Both parties hold the privilege and both can invoke the privilege at any time.

Question 8

Exceptions to Marital Privilege

Answer 8

(1) Communications regarding an ongoing joint crime: the crime is ongoing at the time of the communication
(2) Statements admitted in prosecution for family crime/divorce
(3) Statements intended to create marital discord

Question 9

Marital Testimonial Privilege:

Answer 9

Prevents the spouse from testifying against the accused criminal defendant. The marital testimonial privilege requires:
(1) A criminal case;
(2) Married at the time of the assertion
Holder: the testifying spouse meaning if the testifying spouse is testifying voluntarily its waived.