Are testimonial privileges in the FRE?
No. Recognized by federal courts but not FRE rules
Testimonial Privileges: Self-Incrimination (General)
Under 5th Amend, W cannot be compelled to privide self-incriminating testimony in either civil or criminal cases
- W may invoke privilege if there is a reasonable possibility of self-incrimination
Testimonial Privileges: Self-Incrimination (Civil Cases)
Jury may draw an adverse inference from W’s assertion of 5th Amend privilege
Testimonial Privileges: Self-Incrimination (Criminal Cases)
D cannot be punished for invoking privilege
Attorney-Client Privilege: General
Communications between an attorney and client are privileged in ALL proceedings unless waived
- If organizational client, privilege applies to any employee authorized to speak to attorney
Attorney-Client Privilege: Requirements for Protection
A communication must be:
- intended to be confidential and
- made to facilitate legal services
Attorney-Client Privilege: Exceptions
Privilege does NOT apply:
- if client seeks legal services to aid in planning or commission of crime or fraud
- if communication relates to an alleged breach of attorney’s duty
Attorney-Client Privilege: Joint Representatives of Parties in Lawsuit
Where an attorney acts for both parties in a transaction, no privilege can be invoked between them, BUT can be invoked against a third party
Attorney-Client Privilege: Fees
Records of fee payments, including fee arrangements and payments, are not covered
Doctor-Patient Privilege: Recognition
Not recognized by FRE, but recognized and applied in most federal courts on basis of state law
Doctor-Patient Privilege: Requirements
To be protected, communication must be:
- Made for purposes of obtaining diagnosis or treatment
- Pertinent to diagnosis or treatment, and
- Intended by the patient to be confidential
Doctor-Patient Privilege: Exceptions
Privilege does not apply where:
- Patient’s condition is a legal issue (e.g. personal injury)
- Physician’s services were sought in aid of crime, tort, or to escape capture, or
- Dispute between doctor and patient (e.g. malpractice)
Therapist-Client Privilege
Privileged in all civil or criminal cases if:
- Client intends communication to be confidential, and
- Communication is made to facilitate therapy or social work
- In most ways, operates similar to attorney-client privilege
Spousal Testimonial Privilege: Definition
A person whose spouse is a D in a CRIMINAL case cannot be:
- called as a witness by the prosecution, or
- compelled to testify against their spouse in a CRIMINAL proceeding
Spousal Testimonial Privilege: Who can invoke?
Only the witness-spouse may invoke the privilege
D cannot prevent a willing spouse from testifying against them
Spousal Testimonial Privilege: When can it be invoked?
Privilege can only be invoked during marriage
Marital Communications Privilege: Definition
Confidential communications made during marriage are privileged in any later CIVIL or CRIMINAL proceeding
Marital Communications Privilege: Who can invoke?
Either spouse may invoke the privilege
Marital Communications Privilege: When can it be invoked?
Can be invoked during marriage or after divorce if confidential communication was made during marriage
Marital Communications Privilege: Loss of Privilege
A spouse can lose the privilege if they break confidentiality (i.e. relay a marital communication to a third party)
- The other spouse still retains the privilege
Marital Communications Privilege: Exceptions
The privilege does not apply in:
- suits between the spouses
- suits in which one spouse is charged with a crime or tort against children
- suits in which spouses are co-defendants
