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Flashcards in Privileges Deck (15):
1

Elements required to invoke the Attorney-Client Privilege?

Confidential communication

Between attorney and client

Predominantly legal advice

2

Where does the ACP not apply? (4)

Future/ongoing crime or fraud

At issue exception (when client affirmatively puts the communication in issue as part of a claim or defense)

Disputes between Attorney and Client

Joint client representation

3

What are the elements of the Physician/Psychiatrist-Patient Privilege?

Patient must be seeking treatment

Information acquired must be confidential and necessary to facilitate professional treatment

4

How do Federal Courts limit the Physician/Psychiatrist-Patient Privilege?

Only extends to Psychiatrists

5

How can the Physician/Psychiatrist-Patient Privilege be waived?

If patient sues (Patient Litigation Exception)

6

What is the definition of spousal immunity privilege?

One spouse can't be forced to give adverse testimony against the other in a criminal case.

7

What are the requirements of the spousal immunity privilege? (3)

Valid marriage at the time of trial

Holder of the privilege is the witness spouse, not the party spouse

Applies only in criminal cases

8

What is the definition of the Confidential Marital Communications Privilege?

A husband or wife shall not be required or, without the consent of the other, shall not be allowed to disclose a confidential communication made by one to the other during marriage.

9

What are the requirements of the Confidential Marital Communications Privilege?

Married at the time of the protected communication (privilege outlasts marriage)

Protects only confidences, not all testimony

Both spouses hold privilege

Applies to both civil and criminal cases

10

What are the 3 situations in which state evidence law will apply in federal court IF state substantive law applies (as in the typical diversity case)?

Presumptions and burdens of proof

Competency of witnesses (e.g., state dead man statute)

Privileges

11

Federal privilege law in ________ or in ________ (types of cases) shall be governed by the principles of common law as they may be interpreted by the courts of the US in light of reason and experience.

Federal Questions

Federal Criminal Cases

12

P sues D in Fed. Court for breach of k made and to be performed in NY. Federal SMJ is founded on diversity. P raises a presumption. As to the presumption, what law applies? CL? Federal CL? Federal statutory law? State law?

State law

13

P sues D in Fed. Court for breach of k made and to be performed in NY. Federal SMJ is founded on diversity. P raises a rule of competency. As to the rule of competency, what law applies? CL? Federal CL? Federal statutory law? State law?

State law

14

P sues D in Fed. Court for breach of k made and to be performed in NY. Federal SMJ is founded on diversity. P raises an objection to D's leading question. As to the rule of leading question, what law applies? CL? Federal CL? Federal statutory law? State law?

Federal statutory law

15

P sues D in Fed. Court for breach of k made and to be performed in NY. Federal SMJ is founded on diversity. P raises an objection to privilege. As to the rule of privilege, what law applies? CL? Federal CL? Federal statutory law? State law?

State law