Privileges Flashcards

Uncover the privileges that keep evidence from a trial. Learn the protected relationships: from the attorney client privilege to the marital privilege.

1
Q

Does the Federal Rules of Evidence have rules on privilege?

A

No, FRE has adopted federal common law privileges

(FRE 501)

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Define

testimonial privilege

A

Allows a witness to refrain from disclosing certain knowledge

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What are the basic testimonial privileges?

A
  1. Attorney/client
  2. Psychotherapist/client
  3. Spousal
  4. Doctor/patient
  5. Clergy-penitent (some jurisdictions)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

What is required for a privilege to apply?

A
  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
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

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

A
  1. Third party is essential to the conversation (e.g. translator); or
  2. Third party’s presence is unknown to either party
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

When is a privilege waived?

A
  1. Privilege is not timely asserted;
  2. Privilege is waived via contract; or
  3. Holder intentionally tells a third party about the communication
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

What is attorney-client privilege?

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Who does attorney-client privilege apply to?

A
  • Client;
  • Lawyer; and
  • Anyone employed by the lawyer to assist in the rendition of legal services (e.g. paralegal, secretary, private investigator)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

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

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Under what circumstances does attorney-client privilege not exist?

A

If:

  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
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

What is the duration of attorney-client privilege?

A

Until it is waived; survives client’s death

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

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

A

Holder of the privilege must:

  1. Have taken reasonable steps to prevent disclosure; and
  2. Promptly took reasonable steps to rectify the error
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

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

A

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
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Under what circumstances does doctor-patient privilege not apply?

A
  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
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

When does the psychotherapist-patient privilege apply?

A

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
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

What are the two types of spousal privilege?

A
  1. Spousal testimonial privilege; and
  2. Marital communications privilege
17
Q

What is the marital communications privilege?

A

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

Applies in both civil and criminal cases.

18
Q

How long does the marital communication privilege last?

A

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

19
Q

Under what circumstances does the marital communications privilege not apply?

A
  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
20
Q

What is spousal testimonial privilege/immunity?

A

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.

21
Q

Who can assert spousal immunity?

A

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

22
Q

When does the spousal immunity terminate?

A

Upon divorce or annulment

23
Q

Compare spousal immunity and marital communications privilege

A
  • 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
24
Q

What does the Clergy-Pentient privilege protect?

A

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
25
Q

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

A

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

26
Q

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

A

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”