Evidence: Privileges

Front 1

If action is pending in federal court, apply following procedural rules:

1) In fed court action arising under federal substantive law (all civil cases arising under Constitution or federal statutes, and all crim cases): "privileges are gov by principles of the common law as they may be interpreted by fed courts in light of reason and experience."

Back 1

In federal-court action based on diversity jurisdiction, where state substantive law applies to parties' claims and defenses (Erie), federal court must apply privilege law of state whose substantive law is applicable.

In diversity actions, fed courts also apply STATE LAW ON COMPTENCY and STATE LAW ON BURDENS OF PROOF AND PRESUMPTIONS.

Hint 1

Aside from these 3 exceptions (privileges, competency, burden of proof/presumptions), FRE apply in all fed-court actions, including diversity cases.

TX: In general, apply basic rules on privileges as covered in lecture

Front 2

Attorney-Client Privilege

Applies to confidential communications between att and client (or rep of either) made during professional, legal consultation unless priv is waived or an exception is applicable

Back 2

Confid Communications: clients must intend confid (broken if know that 3d party is listening in)

Joint client Rule: If 2 more clients w/common interest consult the same atty, their communications with counsel concerning the common interest are privileged as to third parties; but if later have dispute w/each other concerning common interest, priv does not apply as between them

Hint 2

Communication: Priv inapplicable to underlying info, pre-existing doc, physical evid

Front 3

Attorney: member of bar or person that client reasonably believes is member of bar

Rep of atty: any agent reasonably necessary to facilitation provision of legal services

Back 3

Client: includes person seeking to become client (priv attaches at outset of formal consultation even if client doesn't retain atty)

Rep of client: any agent reasonably necessary to facilitate provision of legal services

Hint 3

Professional legal consultation: primary purpose of communication to obtain or render legal services, not business or social advice

Front 4

Waiver: client holds privilege, so client alone can waive by disclosure of communication to third party. Privilege survives after ACR over and even after client death. Client's estate rep has power to waive priv after death.

Back 4

Exceptions:

1) Future crime or fraud
2) Client puts legal advice in issue
3) Attorney-client dispute is the case

Front 5

Physician-Patient Privilege

Usually created by state statute (TX rule)

Back 5

Priv applies to confidential communication/info acquired by physician from patient for purpose or treatment of medical condition. Also applicable to psychotherapists (MD or other prof certified to diagnose or treat mental/emotional illness)

Hint 5

FRE distinction: in fed ct actions based solely on fed law, priv exists for psychotherapists but not usual physician-patient confidences (e.g., gall bladder treatment)

Gen exception: If patient expressly/impliedly puts phys/mental condition in issue, privilege gives way

TX exceptions: No doc-patient priv in criminal cases. However, communication to a person who is examining or treating another for drug/alcohol abuse is inadmissible in a crim proceeding.

No priv if any party relies on patient's physical or mental condition as part of party's claim or defense

Front 6

Husband-Wife Privileges

Spousal Immunity: in criminal cases only, spouse can't be compelled to testify against defendant spouse. Witness spouse is holder of privilege. Priv ends w/marriage

Back 6

In ANY case, spouse is not required, and is not allowed in the absence of consent by the other spouse, to disclose a confidential communication made by one to the other during the marriage. Both spouses hold the privilege. Priv outlasts the marriage.

Hint 6

Exceptions for both privileges:

1) communications/acts in furtherance of future crime or fraud
2) communications or acts destructive of family unit (e.g., spousal or child abuse)
3) additional TX civil exceptions: all disputes between spouses and incompetency/commitment proceedings