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Flashcards in Privileges Deck (26)
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Does the Federal Rules of Evidence have rules on privilege

No, FRE has adopted federal common law privileges (FRE 501)

⚠️ Note: In diversity actions, privileges are determined by the state's substantive law 


testimonial privilege 

Allows a witness to refrain from disclosing certain knowledge


What are the basic testimonial privileges?

  1. Attorney/client
  2. Psychotherapist/client
  3. Spousal
  4. Doctor/patient
  5. Clergy-penitent (some jurisdictions) 


What is required for a privilege to apply?

  1. Persons in the conversation are in a protected/privileged relationship; 
  2. Communication was intended to be confidential (i.e. outside the presence of a third party); 
  3. Holder is asserting the privilege; 
  4. Privilege was not waived; and 
  5. No exceptions apply 





When does the presence of a third party not destroy privilege? 

  1. Third party is essential to the conversation (e.g. translator); or 
  2. Third party's presence is unknown to either party 


When is a privilege waived?

  1. Privilege is not timely asserted;  
  2. Privilege is waived via contract; or
  3. Holder intentionally tells a third party about the communication


What is attorney-client privilege?

Privilege held by the client that protects communications intended to be confidential made for the purpose of seeking professional legal advice or services.



Who does attorney-client privilege apply to? 

  • Client;
  • Lawyer; and
  • Anyone employed by the lawyer to assist in the rendition of legal services (e.g. paralegal, secretary, private investigator) 


In a corporation, who is protected by attorney-client privilege? 

All employees who are either directed to communicate with the attorney or are communicating pursuant to their corporate responsibilities


Under what circumstances does attorney-client privilege not exist?


  1. Communication was sought to faciliate a crime or fraud; 
  2. Lawyer's client is now deceased and disclosure is necessary to effectuate a will; 
  3. Communication is necessary for the lawyer to defend him/herself; and
  4. Lawyer had two joint clients who are now adverse to one another 


What is the duration of attorney-client privilege?

Until it is waived; survives client's death


If there has been an inadvertent disclosure of privileged information, what steps must be taken to ensure the privilege is not waived? 

Holder of the privilege must: 

  1. Have taken reasonable steps to prevent disclosure; and
  2. Promptly took reasonable steps to rectify the error

FRE 502(b)


What is doctor-patient privilege and when does it exist?

State law privilege protecting communications between patients and physicians, recognized by most federal courts.

Exists when communication is: 

  1. Intended to be confidential
  2. Between a doctor and a patient
  3. Made for the purpose of obtaining treatment or a diagnosis; and
  4. Relevant to the medical treatment or diagnosis



Under what circumstances does doctor-patient privilege not apply?

  1. Personal injury cases where patient's condition is at issue
  2. If the examination or communication was made for the purpose of litigation;
  3. If the communication was used to faciliate a crime
  4. If there is a dispute between the doctor and patient (e.g. malpractice); or 
  5. Patient waived the privilege 


When does the psychotherapist-patient privilege apply?

If communication was:

  1. Intended to be confidential
  2. Made to a licensed therapist, psychologist, psychiatrist, or social worker;  
  3. During the therapy or course of treatment


What are the two types of spousal privilege?

  1. Spousal testimonial privilege; and
  2. Marital communications privilege


What is the marital communications privilege?​

Privilege that can be invoked by either spouse. Protects confidential communications made during a legally valid marriage.

Applies in both civil and criminal cases. 


How long does the marital communication privilege last?

Never terminates, can be invoked after divorce for communications made during the marriage 


Under what circumstances does the marital communications privilege not apply?

  1. When one spouse destroys confidentiality by disclosing the communications to a third party; 
  2. In a proceeding between the two spouses
  3. In a proceeding in which one spouse is charged with a crime against children or the other spouse;
  4. In a proceeding in which the spouses are co-D's; and
  5. If communications were used to faciliate a crime


What is spousal testimonial privilege/immunity?

Protects a witness-spouse from having to testify against a defendant-spouse in a criminal trial. Applies to events before and during the marriage. 

⚠️ Note: Witness-spouse can testify, but cannot be forced to do so. 



Who can assert spousal immunity?

Witness-spouse only. The defendant-spouse cannot prevent the witness-spouse testifying. 



When does the spousal immunity terminate?

Upon divorce or annulment


Compare spousal immunity and marital communications privilege

  • Spousal immunity
    • Can only be asserted during the marriage (terminates upon divorce or annulment)
    • Can be asserted by the witness-spouse only
    • Can apply to communications before marriage
    • Criminal cases only
  • Marital communications
    • Can be asserted at any time, including after divorce or death of a spouse
    • Can be asserted by either party 
    • Only covers communications during marriage
    • Civil and criminal cases


What does the Clergy-Pentient privilege protect?

The privilege only applies to communications:

  1. Between penitent and clergyman; 
  2. In the clergyman's role as a spiritual adviser; 
  3. Under conditions of confidentiality


Do news organizations have the privilege to protect the identity of their sources?

Not on the federal level, but several states have enacted laws so that journalists are not required to reveal their sources


What is the 5th Amendment privilege and what does it apply to? 

Holds that witnesses in criminal and civil trials have right against "self-incrimination," i.e. can refuse to answer questions that would be incriminating


⭐️ For more information, please see the Criminal Procedure deck under "Confessions and Self-Incrimination"