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Flashcards in Privileges Deck (36)
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1
Q

In a civil case (diversity actions), the privilege of a witness is determined by ?

A

State law

2
Q

In federal question cases and criminal cases, the privilege of a witness is determined by

A

federal common law

3
Q

except as provided by statute, no person has a privilege to

A
  1. refuse to be a witness
  2. refuse to disclose a matter
  3. refuse to produce any object or writing
4
Q

There are four Confidential Communication privileges recognized in federal courts and in all 50 states:
(4)

A
  1. attorney client
  2. psychotherapist client
  3. clergy - penament
  4. husband -wife
5
Q

Six Key Privilege Issues

A

(1) protected relationship
(2) communication
(3) confidentiality
(4) holder
(5) waiver
(6) exceptions

6
Q

Attorney-Client Privilege
Holder?
What is protected?

A
  1. communications made for the purpose of seeking professional legal advice or services
  2. work product prepared in anticipation of litigation
    ≠observations

holder = client

7
Q

Who does attorney-client extend to?

A

anyone who is furthering the representation (anyone furthering the litigation, a doctor physically making exam)

8
Q

How is attorney-client destroyed?

A

When you are aware that someone is listening to the conversation

9
Q

Who is the client in attorney-client

A

anyone, entity, who is seeking legal services or is consulting with the possibility of obtaining legal services

10
Q

Who is a lawyer in attorney-client?

A
  1. anyone who is reasonably believed by the client to engage in the practice of law
11
Q

Who can claim privilege in attorney-client?

A

The client or the lawyer on the client’s behalf

12
Q

Failure to assert a privilege generally results in

A

a waiver to whatever information was objecitonable

13
Q

When is there no Attorney Client Privilege?

3

A
  1. Future crime and fraud
  2. when client sues attorney
  3. “Joint Client” exception: Two clients hire the same attorney and are then involved in litigation between each other. Result: Their earlier communications are not privileged absent an agreement otherwise.
14
Q

Are fee arrangements privileged?

A

no

15
Q

Duration of the attorney client privilege?

A

beyond the client’s death

16
Q

Doctor-patient privilege only exist through

A

statutes

-need to be in federal court based on diversity

17
Q

Doctor-patient privilege extends to?

A

Licensed social worker, marriage counselors, psychotherapist

≠educational or vocational counselors

18
Q

Doctor-patient privilege applies to/when?

A

The privilege applies to protect confidential communications between a licensed doctor and a patient
+
patient is seeking medical help

19
Q

When does Doctor-patient privilege not apply?

A
  1. personal injury

2. malpractice suits against doctor

20
Q

Marital Communications Privilege can be asserted by?

A

Either spouse, both are the holders

21
Q

Marital Communications Privilege protects?

A

those conversations by the parties intended to be confidential

ONLY DURING MARRIAGE

≠observations

22
Q

When is marital communication privilege terminated?

A

it never terminates

23
Q

Where does marital communication privilege not exist?

3

A
  1. crimes against one spouse v another, or against a child
  2. divorce proceedings
  3. joint participation in a crime
24
Q

What is spousal immunity

A

Protects all communications, regardless of confidentiality, both during and before marriage; includes testimony, observations, and impressions. A spouse cannot be compelled to testify about virtually anything

25
Q

Who can assert spousal immunity?

A

in fed court, the spouse who is testifying but they do not have to

26
Q

What are the requirements for spousal immunity

A
  1. a valid marriage
  2. criminal cases
  3. No divorce
27
Q

Religious privilege Protects confidential communications made:

A

from pennant to clergyman
-under conditions of confidentiality
With intent to give spiritual guidance

28
Q

Fifth Amendment Privilege Against Self-Incrimination applies only to?

A

Testimony on the stand

-goes to the stand and does not talk

29
Q

Examples where Fifth Amendment privilege does NOT apply

A

Blood, hair, handwriting samples, fingerprints, lineups, photo IDs; scars, tattoos; put on a hat, item of clothing; bloody glove, “read this.”

30
Q

Can testimony given at a preliminary hearing waive 5th amendment rights at trial?

A

No, can’t be compelled

31
Q

May the prosecutor comment on defendant’s 5th amendment privilege at trial?

A

no

32
Q

Witnesses or parties in civil cases must assert the 5th amendment when?

A

When on the state

33
Q

a witness with Transactional Immunity

A

cannot be prosecuted for the underlying offense

34
Q

a witness with Use Immunity

A

cannot have their testimony used against them but can still be charged with the underlying offense

35
Q

when does someone waive 5th amendment?

A

Occurs expressly whenever the holder of the privilege voluntarily discloses the privileged info.

36
Q

When can you comment on someone asserting their 5th amendment right?

A

Civil cases

≠criminal cases