testimonial privileges

Question 1

In a federal court case arising under federal substantive law (all civil cases arising under the Constitution or federal statutes, and all criminal cases), privileges are governed by

Answer 1

federal common law

Question 2

In a federal court case based on diversity jurisdiction, where state substantive law applies to parties’ claims and defenses (Erie doctrine), the federal court must apply

Answer 2

privilege law of the state.

Question 3

recognized federal common law privileges

Answer 3

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

*Other privileges not listed above (such as physician-patient, accountant-client, professional journalist) are only recognized by certain states.

Question 4

Person who may assert privilege

Answer 4

generally can be asserted only by the holder.

Sometimes the person with whom the confidence was shared may assert the privilege on the holder’s behalf.

Question 5

To be privileged, a communication must be

Answer 5

shown or presumed to have been made in confidence (meaning, not intended to be disclosed to third parties).

Question 6

can counsel or judge comment on a claim of privilege?

Answer 6

Neither counsel for the parties nor the judge may comment on someone’s claim of privilege.

Question 7

Any privilege is waived by:

Answer 7

(1) failure to claim the privilege;

(2) voluntary disclosure of the privileged matter by the privilege holder; or

(3) a contractual provision waiving in advance the right to claim a privilege.

Question 8

If 2 or more clients with a common interest consult the same attorney

Answer 8

communications with the attorney concerning the common interest are privileged as to third parties.

But if the joint clients later have a dispute with each other concerning the common interest and one client sues the other, the privilege does not apply as between them.

Question 9

attorney-client: who holds privilege?

Answer 9

client holds the privilege, and only they can waive it.

However, the attorney’s authority to claim the privilege on behalf of the client is presumed in the absence of contrary evidence.

Question 10

attorney-client does not apply if:

Answer 10

attorney’s services were sought to aid in the planning or commission of something the client should have known was a crime or fraud

client has put the legal services at issue in the case

client has put the legal services at issue in the case

communication relevant to an issue between parties claiming through the same deceased client

Question 11

physician-patient privileged if:

Answer 11

*STATE ONLY!

1) professional relationship between the physician and patient for the purposes of medical treatment;

2) information was acquired for the purpose of diagnosis or treatment; and

3) information was necessary for diagnosis or treatment (nonmedical information—for example, details of who was at fault in an accident—is not privileged)

Question 12

physician-patient who holds privilege?

Answer 12

privilege belongs to the patient, and the patient may decide to claim or waive it.

If the patient is unavailable at the time of trial, the physician may claim the privilege on their behalf.

Question 13

physician-patient exceptions

Answer 13

• patient puts their physical condition in issue (for example, in a personal injury lawsuit);
• physician’s assistance was sought to aid wrongdoing
• communication is relevant to an issue of breach of duty in a dispute between the physician and patient (such as a medical malpractice case);
• patient agreed by contract (in an insurance policy, for example) to waive the privilege; or
• federal case applying the federal law of privilege

Question 14

physician-patient: what cases does it apply?

Answer 14

some states - both civil and criminal cases.

some states - cannot be invoked in criminal cases

some states - privilege is denied in felony cases,

some states - it is denied only in homicide cases.

Question 15

psychotherapist/social worker-patient - privileged if:

Answer 15

1) intended their communication to be confidential

2) purpose of the communication must have been to facilitate professional services.

*Similar to the privileges discussed above, there is no privilege where the patient puts their mental condition at issue in the case

Question 16

spousal immunity - what cases does it apply?

Answer 16

Criminal ONLY

Question 17

spousal immunity - how long does it last?

Answer 17

privilege lasts only during the marriage - what matters is whether the spouses are married at the time of trial (purpose of the privilege is to protect the harmony of an existing marriage.)

Question 18

confidential communications between spouses - what cases does it apply?

Answer 18

any civil or criminal

Question 19

confidential communications between spouses - when must marital relationship exist?

Answer 19

marital relationship must exist when the communication is made. Divorce will not terminate the privilege, but communications after divorce are not privileged

Question 20

Neither marital privilege applies in the following situations:

Answer 20

Communications or acts in furtherance of a future joint crime or fraud;

In legal actions between the spouses; or

In cases where a spouse is charged with a crime against the testifying spouse or either spouse’s children

Question 21

governmental privileges

Answer 21

• Official information not otherwise open to the public
• privilege that protects the identity of an informer (waived if the informer’s identity is voluntarily disclosed by a privilege holder)