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Evidence > Privileges > Flashcards

Privileges Flashcards

1
Q

TESTIMONIAL PRIVILEGES

A

= permit one to refuse to disclose and prohibit other from disclosing certain sorts of confidential information in judicial proceedings

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2
Q

reason for privileges

TESTIMONIAL PRIVILEGES

A
  1. practicality

2. society’s desire to encourage certain relationship by ensuring their confidentiality

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3
Q

2 types of privilege

TESTIMONIAL PRIVILEGES

A
  1. instrumental

2. privacy

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4
Q

instrument privileges

TESTIMONIAL PRIVILEGES

A
  • Justification = utilitarian reasons supporting socially valuable things
  • Such as = people getting advice from lawyers or speaking openly to physicians or therapist
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5
Q

privacy privileges

TESTIMONIAL PRIVILEGES

A
  • Justification = privacy concerns

- Such as = marital communications or national security secrets

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6
Q

rules

TESTIMONIAL PRIVILEGES

A
  • No privileges in FRE
  • RULE 501 provides applicable privilege law
  • 1101(c) provides application to proceeding
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7
Q

RULE 501

TESTIMONIAL PRIVILEGES

A
  • COMMON LAW, as interpreted as by US court in light of reason and experience, GOVERNS a claim of privilege UNLESS any of the following provides otherwise
    a. US Constitution
    b. Federal statute

c. Rules prescribed by SC
- But in a CIVIL CASE, STATE LAW governs privilege regarding a claim or defense for which state law supplies the rule of decision

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8
Q 
RULE 1101(c)
TESTIMONIAL PRIVILEGES
A
  • Privileges apply to “all stages of all actions, cases, and proceedings”
  • Includes hearing conducted under FRE 104(a) to determine the preliminary admissibility of evidence
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9
Q

5 privileges recognized by federal law

TESTIMONIAL PRIVILEGES

A
  1. Attorney-client privilege
  2. Spousal immunity
  3. Confidential marital communications
  4. Psychotherapist/social worker-client privilege
  5. Clergy-penitent privilege
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10
Q

privilege not recognized by federal law

TESTIMONIAL PRIVILEGES

A

= Doctor-patient privilege

NOTE: often recognized by state law

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11
Q

persons who may assert privilege - 3 takeaways

TESTIMONIAL PRIVILEGES

A
  1. Privilege is personal = may be asserted only by
    a. the party whose interest is sought to be protected OR
    b. someone authorized to assert it on the holder’s behalf
  2. If privilege is held by more than one person, each of them can claim the privilege
  3. Person with whom the confidence was shared may sometimes claim it on the holder’s behalf
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12
Q

who may assert privilege?

TESTIMONIAL PRIVILEGES

A

Privilege is personal = may be asserted only by

a. the party whose interest is sought to be protected OR
b. someone authorized to assert it on the holder’s behalf

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13
Q

if privilege is held by more than one persons, who can claim the privilege?
TESTIMONIAL PRIVILEGES

A

If privilege is held by more than one person, each of them can claim the privilege

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14
Q

confidentiality - 2 takeaways

TESTIMONIAL PRIVILEGES

A
  1. Communication must be shown to have been made in confidence to be privileges
  2. Many states recognize presumption that any disclosures made in course of relationship for which privilege exists were made in confidence
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15
Q

comment on/inference from use

TESTIMONIAL PRIVILEGES

A

No inference should be drawn from fact that witness has claimed a privilege

= Counsel for parties and judge are not permitted to make any comment or argument base on claim of privilege

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16
Q

4 waivers of privilege

TESTIMONIAL PRIVILEGES

A

All types of privileges are waived by

  1. Failure to claim the privilege by the holder herself
  2. Failure to object when privileged testimony is offered
  3. Voluntary disclosure of privileged matter by the holder or someone with holder’s consent (unless disclosure is also privileged)
  4. Contractual provision waiving in advance the right to claim a privilege
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17
Q

privilege not waived

TESTIMONIAL PRIVILEGES

A

Privilege is not waived where

  1. Someone wrongfully disclosed the information without the holder’s consent
  2. One joint holder waives the privilege
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18
Q

eavesdroppers

TESTIMONIAL PRIVILEGES

A

A privilege based on confidential communications is not abrogated because the communication is overheard by someone whose presence is unknown to the parties
= privilege still applies to the parties to the confidential communication

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19
Q

whether eavesdroppers may testify

TESTIMONIAL PRIVILEGES

A

Traditional view = the eavesdropper may testify to what he has overheard

Modern trend = as long as the holder of the privilege was not negligent, there is no waiver of the privilege, and eavesdropper is also prohibited from testifying

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20
Q

rationale

ATTORNEY-CLIENT PRIVILEGE

A

= to encourage candor between client and attorney

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21
Q

general rule

ATTORNEY-CLIENT PRIVILEGE

A
  1. Communications
  2. between an attorney and client (or representatives thereof)
  3. made during professional consultation
  4. are privileged from disclosure

NOTE = Objects and preexisting documents are not protected

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22
Q

relevant law

ATTORNEY-CLIENT PRIVILEGE

A
  • First testimonial privilege ever established
  • Common law privilege
  • Codified by statute in some jurisdiction
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23
Q

holder of the privilege

ATTORNEY-CLIENT PRIVILEGE

A

= client or representative

NOTES

  • person who was the attorney at the time of communication can claim the privilege, but only on behalf of the client
  • attorney’s authority to do this is presumed in the absence of any evidence to the contrary
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24
Q

duration of the privilege

ATTORNEY-CLIENT PRIVILEGE

A

= indefinitely

  • Termination of attorney-client relationship does not terminate privilege
  • Client’s death does not terminate the privilege
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25
Q

attorney-client relationship

ATTORNEY-CLIENT PRIVILEGE

A
  • Must exist at the time of communications
  • Client must be seeking professional services of the attorney
  • Disclosures made before attorney has decided to accept/decline the case = covered
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26
Q

confidential communication

ATTORNEY-CLIENT PRIVILEGE

A

CONFIDENTIAL if communication was not intended to be disclosed to third persons

  • other than those
    a. to whom disclosure would be in furtherance of the rendition of legal services to the client OR
    b. who are necessary for the transmission of the communication

NOT CONFIDENTIAL if communication was made in the known presence and hearing of a stranger
= not privileged

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27
Q

2 major requirements

ATTORNEY-CLIENT PRIVILEGE

A
  1. attorney-client relationship

2. confidential communication

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28
Q

examination by doctor at attorney’s request

ATTORNEY-CLIENT PRIVILEGE

A

= covered by attorney-client privilege
b/c examination is necessary to help client communicate her condition to the attorney

= not covered by physician-patient privilege
b/c no treatment is contemplated

BUT privilege would be waived if doctor were later called as an expert witness by same client

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29
Q

attorney acts for both parties

ATTORNEY-CLIENT PRIVILEGE

A

Lawsuit between the two parties = no privilege can be invoked
b/c they obvious did not desire and could not expect confidentiality as between themselves in a joint consultation

Lawsuit between either or both of the parties and 3P = privilege can be claimed
b/c multiple parties can desire and expect confidentiality as against the outside world

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30
Q

attorney’s work product

ATTORNEY-CLIENT PRIVILEGE

A

Documents prepared by an attorney for his own use in prosecuting his client’s case are not protected by attorney-client privilege
BUT may be protected by the attorney’s “work product” rule

31
Q

client - definition

ATTORNEY-CLIENT PRIVILEGE

A

= can be an individual private citizen, a public officer, a corporation, or any other organization or entity, public or private, seeking professional legal services

32
Q

representative of client - definition

ATTORNEY-CLIENT PRIVILEGE

A

= one having the authority to obtain legal services or to act on advice rendered by an attorney, on behalf of the client

33
Q

attorney - definition

ATTORNEY-CLIENT PRIVILEGE

A

= any person who is authorized or, in many jurisdictions, who is reasonably believed by the client to be authorized, to practice law in any state or nation

34
Q

representative of attorney - definition

ATTORNEY-CLIENT PRIVILEGE

A

= one employed by the attorney to assist in the rendition of professional services

Example = clerk or secretary

35
Q

corporation as client

ATTORNEY-CLIENT PRIVILEGE

A

Can be a client within the meaning of attorney-client privilege

36
Q

statement of any corporate officials or employees made to the attorney
ATTORNEY-CLIENT PRIVILEGE

A

= protected if they were authorized or directed by the corporation to make such statements

37
Q

work product rule

ATTORNEY-CLIENT PRIVILEGE

A

= work product of a lawyer is not subject to discovery except in cases of necessity

38
Q

3 exceptions

ATTORNEY-CLIENT PRIVILEGE

A
  1. Legal advice in aid of future wrongdoing if client knew or should have known was a crime or a fraud
  2. Claimants through same deceased client
  3. When client puts legal advice into issue
39
Q

when client puts legal advice into issue - examples

ATTORNEY-CLIENT PRIVILEGE

A

Example = tax fraud case where client claims to rely on advice of lawyer as defense

Example = legal malpractice or unpaid legal fee

40
Q

disclosure in federal procedure - voluntarily disclosed

ATTORNEY-CLIENT PRIVILEGE

A

A voluntary disclosure of privileged material made in a federal proceeding operates as a waiver of the attorney-client privilege or work product protection only with respect to the disclosed material

41
Q

RULE 502 limitations on waiver of attorney-client privilege and work product rule
ATTORNEY-CLIENT PRIVILEGE

A

RULE 502 =

  • allows parties to disclose privileged material without risking waiver of the attorney-client privilege and work product rule as to undisclosed material
  • also protects against waiver when the disclosure is the result of an innocent mistake
42
Q

disclosure in federal procedure - undisclosed

ATTORNEY-CLIENT PRIVILEGE

A

The waiver does not extend to undisclosed privileged material unless:

  1. the waiver is intentional,
  2. both the disclosed and undisclosed material concern the same subject matter, and
  3. fairness dictates that all the material should be considered together to avoid a misleading presentation of evidence

RULE 502(a)

43
Q

disclosure in federal procedure - inadvertent disclosure

ATTORNEY-CLIENT PRIVILEGE

A

IF
1. the disclosure was inadvertent and
2. the holder took reasonable steps to prevent disclosure and rectify the error
= then there is no waiver

RULE 502(a) and (b)

44
Q

prior disclosure in state procedure

ATTORNEY-CLIENT PRIVILEGE

A

A disclosure of privileged material made in a state proceeding is not an effective waiver in a subsequent federal proceeding if:

a. the disclosure would not operate as a waiver if it had been made in a federal proceeding, or
b. the disclosure is not a waiver under that state’s law

RULE 502(c)

45
Q

rule

CLERGY-PENITENT PRIVILEGE

A

PRIVILEGE TO

  1. refuse to disclose AND/OR
  2. prevent others from disclosing
    - Confidential communication
    - by the penitent
    - to a member of the clergy
    - In the clergy member’s capacity as a spiritual advisor
46
Q

definition of clergy

CLERGY-PENITENT PRIVILEGE

A

Includes

  1. Minister
  2. Priest
  3. Rabbi
  4. Or other similar functionary of a religious organization
  5. Or reasonably believed to be so by the person consulting him
47
Q

rule

SELF-INCRIMINATION

A

5th amendment =

  • Witness cannot be compelled to testify against himself
  • May refuse to answer any question whose answer may incriminate him
  • May use the privilege to refuse to take the witness stand at all
48
Q

holder of the privilege

SELF-INCRIMINATION

A
  • Holder of the privilege = the witness

- Party cannot assert it on the witness’s behalf

49
Q

definition of incriminating

SELF-INCRIMINATION

A
  • Testimony is incriminating if
    a. it ties the witness to the commission of a crime OR
    b. would furnish a lead to evidence tying the witness to a crime
  • Testimony needs not prove guilt
50
Q

applicability of privilege

SELF-INCRIMINATION

A
  1. Witness cannot refuse to answer b/c of exposure to civil liability = must be to avoid criminal liability
  2. Can be CLAIMED at any state or federal proceeding civil or criminal at which the witness’s appearance and testimony are compelled
  3. Can be invoked only by natural persons = cannot be invoked by corporations or associations
51
Q

rationale

PSYCHOTHERAPIST-PATIENT PRIVILEGE

A

= to encourage candor between patient and medical professional

52
Q

rule

PSYCHOTHERAPIST-PATIENT PRIVILEGE

A

SC recognizes federal privilege for communications between psychotherapist or license social worker and his client

53
Q

application

PSYCHOTHERAPIST-PATIENT PRIVILEGE

A

Operates in same manner as attorney-client privilege

54
Q

relevant law

PHYSICIAN-PATIENT PRIVILEGE

A

= Statutory privilege

NOTE: has not been adopted in all jurisdictions

55
Q

rule

PHYSICIAN-PATIENT PRIVILEGE

A

= Physician cannot divulge information necessary to enable the physician to act in his professional capacity that he acquired while attending a patient in a professional capacity

56
Q

key elements

PHYSICIAN-PATIENT PRIVILEGE

A
  1. Professional member of relationship must be present
  2. Information must be acquired while attending patient in the course of treatment
  3. Information must be necessary for treatment
57
Q

nonapplicability

PHYSICIAN-PATIENT PRIVILEGE

A

privilege doesn’t apply in the following situations:

  1. Patient puts physician condition in issue
  2. Services in aid of wrongdoing
  3. Dispute between physician and patient
  4. Agreement to waive privilege
  5. Federal cases applying federal law of privilege
58
Q

criminal proceedings

PHYSICIAN-PATIENT PRIVILEGE

A

Split of authority

  • Some states = privilege applies in both civil and criminal cases
  • Other states = privilege cannot be invoked in criminal cases generally
  • Other states = privilege denied in felony cases
  • Few states = denied only in homicide cases
59
Q

psychotherapist - definition

PSYCHOTHERAPIST-PATIENT PRIVILEGE

A

psychiatrist or psychologist

60
Q

2 types

HUSBAND-WIFE PRIVILEGES

A
  1. Spousal immunity

2. Confidential communications between spouses

61
Q

application

SPOUSAL IMMUNITY

A
  • Applicable in criminal cases only
  • Immunity may be asserted only during marriage
  • Immunity may be asserted even as to matters before the marriage
62
Q

rule

SPOUSAL IMMUNITY

A
  • Spouse cannot be compelled to testify against defendant spouse
  • In any criminal proceeding

NOTE: applicable in criminal cases only

63
Q

holder of the privilege

SPOUSAL IMMUNITY

A
  • Holder of the privilege = witness spouse

- NOT the defendant spouse

64
Q

rationale

SPOUSAL IMMUNITY

A

= to protect the harmony of the existing marriage

65
Q

key elements

SPOUSAL IMMUNITY

A
  • Valid marriage required
  • Immunity may be asserted only during marriage
  • Immunity may be asserted even as to matters before the marriage
66
Q

rule

CONFIDENTIAL MARITAL COMMUNICATIONS

A
  • In any civil or criminal case
  • Either spouse
  • Whether or not a party
  • Has a privilege to refuse to disclose
  • And to prevent another from disclosing
  • A confidential communication made between spouses
  • While they were married
67
Q

holder of the privilege

CONFIDENTIAL MARITAL COMMUNICATIONS

A
  • Holder of privilege = both spouses jointly hold privilege

- Either can refuse to disclose communication or prevent any other person from disclosing

68
Q

rationale

CONFIDENTIAL MARITAL COMMUNICATIONS

A

= to encourage open communication and trust and confidence between spouses

69
Q

key elements

CONFIDENTIAL MARITAL COMMUNICATIONS

A
  1. Valid marital relationship

2. Communication must be made in reliance upon the intimacy of the marital relationship

70
Q

effect of divorce

CONFIDENTIAL MARITAL COMMUNICATIONS

A
  • Divorce does not terminate privilege retroactively

- Communications after divorce = not privileged

71
Q

communications made in reliance upon intimacy of marital relationship
CONFIDENTIAL MARITAL COMMUNICATIONS

A
  • Includes = privileged
    1. Spoken communication
    2. Conduct intended as a communication
  • Doesn’t include = not privileged
    1. Routine exchanges of a business nature
    2. Abusive language
    3. Misconduct directed to the spouse
72
Q

exceptions

HUSBAND-WIFE PRIVILEGES

A

Neither spousal immunity nor confidential marital communications privileges applies in

  1. Legal actions between the spouses
  2. Cases involving crimes against testifying spouse
  3. Cases involving crimes against either spouse’s children
73
Q

duration of privilege

SPOUSAL IMMUNITY

A
  • Immunity may be asserted only during marriage

- Immunity may be asserted even as to matters before the marriage

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