Privileges Flashcards
In Federal diversity actions, what defines the scope of privileges available to a witness in a civil case?
State law
In Federal question and criminal actions, what defines the scope of privileges available to a witness?
Federal common law
Unless as provided by statute, what privileges can a person never assert?
The privilege to refuse to:
- Be a witness
- Disclose a matter
- Produce any object or writing
What are the four communication privileges recognized in Federal courts and in all 50 states?
- Attorney - Client
- Psychotherapist - Client
- Clergy - Penament
- Husband - Wife
What are the steps to analyzing a privileges issue?
Excluding evidence by way of privilege only occurs if:
Step 1: The persons in the conversation must be in a protected relationship
Step 2: A communication must have occurred
Step 3: The communication must be made with the intent of confidentiality.
Step 4: Only the holder of the privilege can assert the privilege.
Step 5: The holder did not waive the privilege at any point.
Step 6: No exceptions to the privilege applies.
In the Attorney-Client Privilege: who is the holder? What is protected?
Holder: Client
Protected:
Communications made for the purpose of seeking professional legal advice or services
And
Work product prepared in anticipation of litigation
≠ observations
What is the scope of persons the attorney-client privilege can apply to?
Anyone who is assisting and furthering the representation: paralegals, secretaries, doctors making physical exams.
How is attorney-client destroyed?
When the parties are aware that someone is listening to the conversation.
Who qualifies as the client in attorney-client privilege?
Any person or entity who is seeking legal services or is consulting with the possibility of obtaining legal services.
Who is a lawyer for attorney-client privilege?
Anyone who is reasonably believed by the client to engage in the practice of law
Who can claim privilege in the attorney-client privilege?
The client or the lawyer on the client’s behalf.
What is the consequence of a failure to assert a privilege when a privilege applies to a piece of evidence?
The privilege is waived to whatever information was objectionable.
In what unique client circumstances is there not attorney-client privilege?
- Client is planning a future crime and fraud
- When a client sues attorney
- Joint Clients: Two clients hire the same attorney and are then involved in litigation between each other.
Are fee arrangements privileged information?
No
Duration of the attorney client privilege?
Infinite: beyond the client’s death.
When do doctor-patient privileges exist?
Only thru state statute: the case needs to be in federal court based upon diversity.
When it applies, what fields does the doctor-patient privilege extend to?
- Licensed social worker
- Marriage counselors
- Psychotherapist
- Medical Providers
≠ Educational or Vocational counselors
What is the scope of the doctor-patient privilege?
The privilege applies to protect confidential communications between:
- A licensed doctor and a patient
- For communications directly associated with medical treatment.
When does doctor-patient privilege not apply?
- Personal injury cases
And
- Malpractice suits againsts doctor.
Who can assert the marital communications privilege?
Either spouse, both are the holders of the privilege.
What does the marital communications privilege protect?
Those conversations by the parties intended to be confidential during their marriage.
≠ Observations
When is marital communication privilege terminated?
It never terminates
What are the exceptions to the marital communication privilege?
The privilege does not exist when:
- Crimes of one spouse v. another or against a child
- Divorce proceedings
Or
- When spouses jointly participate in a crime.
What is spousal immunity?
Protects all communications, regardless of confidentiality, both during and before marriage.
The immunity includes testimony, observations, and impressions.
A spouse cannot be compelled to testify about virtually anything.
