Testimonial Privileges

Question 1

Federal Common Law Privileges

Answer 1

The Federal Rules have no specific privilege provisions; privilege in federal courts is governed by common law principles as interpreted by the courts. Federal courts currently recognize the following major
privileges:
* The attorney-client privilege;
* Spousal immunity;
* The privilege for confidential marital communications;
* The psychotherapist/social worker-client privilege;
* The clergy-penitent privilege; and
* Governmental privileges

Question 2

Attorney Client Privilege

Answer 2

Communications between an attorney and client, made during professional consultation, are privileged from disclosure. The privilege applies to:
* Confidential communications,
* Between attorney and client (or representatives of either),
* Made during professional legal consultation,
* Unless the privilege is waived or an exception is applicable
The important elements of this privilege are discussed in more detail
below.
EVIDENCE

Question 3

Attorney’s Work Product

Answer 3

Although documents prepared by an attorney for their own use in a case are not protected by the privilege, they are not subject to discovery except in cases of necessity.

Question 4

PHYSICIAN-PATIENT PRIVILEGE (STATE PRIVILEGE
ONLY) Scope and Applicability

Answer 4

Most states have adopted a physician-patient privilege (but recall that there is no such privilege under federal common law). Confidential information acquired by a physician is privileged if:
* There was a professional relationship between the physician and patient for the purposes of medical treatment;
* The information was acquired for the purpose of diagnosis or treatment; and
* The information was necessary for diagnosis or treatment (nonmedical information—for example, details of who was at fault in an accident—is not privileged)

Question 5

PSYCHOTHERAPIST/SOCIAL WORKER-PATIENT
PRIVILEGE

Answer 5

Federal courts recognize a privilege for confidential communications between a psychotherapist (psychiatrist or psychologist) or licensed social worker and their patient/client

Question 6

Spousal Testimonial Privilege (Spousal Immunity)—
Criminal Cases Only

Answer 6

When the privilege of spousal immunity is invoked, a married person whose spouse is a defendant in a criminal case may not be called as a witness by the prosecution. Moreover, a married person may
not be compelled to testify against the legal interests of their spouse in any criminal proceeding, regardless of whether the spouse is the defendant.

Question 7

Privilege for Confidential Marital Communications

Answer 7

In any civil or criminal case, confidential communications between spouses during a valid marriage are privileged. Either spouse can refuse to disclose the communication or prevent any other person from doing so. For this privilege to apply, the marital relationship must exist when the communication is made. Divorce will not terminate the privilege, but communications after divorce are not privileged

Question 8

Clergy-Penitent Privilege

Answer 8

Federal courts and many states recognize a privilege for statements made to a member of the clergy, the elements of which are very similar to the attorney-client privilege

Question 9

Privilege Against Self-Incrimination

Answer 9

Under the 5th Amendment to the Constitution, a witness cannot be compelled to testify against themselves

Question 10

Governmental Privileges

Answer 10

Official information not otherwise open to the public may be privileged. The government also holds a privilege that protects the identity of an informer (someone who has provided the government
with details of a potential crime). The privilege is waived if the informer’s identity is voluntarily disclosed by a privilege holder

Question 11

Accountant-Client Privilege (State Only)

Answer 11

Many states recognize a privilege for statements made to an accountant, and the elements of this privilege are very similar to the attorney-client privilege