Evidence - Privileges

Front 1

Privileges (Generally)
(Rule 501)

Back 1

Common law is default but state law supersedes and then federal law supersedes that.

Application
(1) In diversity actions, the privilege of a witness is determined by state law.
(2) In federal question cases and criminal cases, the privilege of a witness is determined by common law.

Front 2

Privilege Under Common Law

Back 2

Privileges are an exception to the ordinary rules of law that no one has a right to (1) refuse to be a witness, (2) refuse to disclose any matter, or (3) refuse to produce any object or writing.

Confidential Communication Privileges--4 types:
(1) lawyer-client,
(2) psychotherapist-patient,
(3) clergyman, and
(4) husband-wife (spousal and marital).

Front 3

Lawyer-Client Privilege

Back 3

Client holds privilege (lawyer can claim on client's behalf)

Must be for the purpose of seeking professional legal advice or services.

Includes oral, written, conduct (not observations - e.g., blood-stained clothes)

Pre-existing documents not privileged (but discussion of them would be)

Work Product - attorney prepared material anticipating litigation (privileged)

Third-Party: privilege extends to them if presence is essential and necessary to further representation's purpose (e.g. investigator)

Presence of attorney representatives does not destroy privilege.

Unknown eavesdropper: privilege remains
Known or anticipates eavesdropper: destroys privilege

Front 4

Waiver of Lawyer-Client Privilege
(Rule 502)

Back 4

Failing to assert in timely manner = waiver
BUT, scope of that waiver is only to extent to permit reasonable scrutiny by opposing party (limited to same subject matter) - so partial waiver

Blanket/Total waiver:
1. waiver was intentional; and
2. both disclosed and undisclosed info concerns the same subject matter

Factors of waiver:
--did client try to protect
--did client take steps
--did client try to remedy

Front 5

No Lawyer-Client Privilege

Back 5

Circumstances in which cannot claim privilege:
1. ongoing crime or fraud
2. suit between lawyer and client
3. joint clients w/ one lawyer who later become antagonistic and sue each other--all communications not covered unless specifically agree otherwise
4. client identity--unless disclosing would disclose other privileged things
5. fee arrangements--unless disclosing would disclose other privileged things

Front 6

Duration of Lawyer-Client Privilege

Back 6

Begins upon initial contact

Persists beyond client's death

Front 7

Physician and Psychotherapist-Patient Privilege

Back 7

Physician: Only from state law (not federal)
Psychotherapist: federal

Psychotherapist: protects patient seeking diagnosis or treatment for a medical condition

Scope: social workers, psychologists, mental health specialists, psychiatrists, marriage counselors
--not extend to educational and vocational counselors

Exceptions:
1. statements re: commitment proceedings
2. statements during court-ordered exams
3. when psychological when part of claim (must be specific condition like PTSD, not general pain and suffering)
4. future crimes told to or plotted with therapist

Front 8

Spousal Privilege - Types

Back 8

Two types:
1. testimonial privilege
2. marital communications privilege

Front 9

Spousal Testimonial Privilege

Back 9

Only applies in criminal proceedings

Do not have to testify against spouse in criminal proceeding.

Witness holds privilege so can talk if want to.

Lost upon divorce.

Exceptions--the witness cannot assert privilege:
1. charged with crime against spouse
2. charged with crime against children

Covers all observations and communications

Front 10

Marital Communications Privilege

Back 10

Applies in both civil and criminal

Protects only confidential communications
--must make an effort at confidence
--doesnt apply to observations

Only applies to communications during marriage.

Privilege not lost upon divorce.

Limits--spouses litigating re:
(a) Crime by one spouse against the other or their children
(b) Divorce proceedings
(c) Jointly charged with a crime – communications about that crime are not privileged

Front 11

Religious Privilege (Priest Penitent or Clergyman Privilege)

Back 11

Protects confidential communications made from penitent to clergyman in his professional capacity as spiritual advisor.

The statement needs to have been made under conditions of confidentiality.

Front 12

Identity of Informer

Back 12

A newsperson has no First Amendment privilege to refuse to disclose the identity of his sources; however, states can provide “shield laws” to afford such a privilege.

Front 13

Executive Privilege

Back 13

Privilege for President of US and his advisors.

Courts decide whether privilege applies.
(1) More likely to sustain specific executive privilege claims involving national security.

Front 14

Fifth Amendment Privilege Against Self-Incrimination

Back 14

Only for testimonial evidence.

Presentations not protected (blood, scars, fingerprints)

Prosecution cannot comment on defendant's refusal to testify.

Witness or parties in civil cases must assert privilege on the stand.

Can make inference in civil case that not testifying would because evidence would have been unfavorable

Limit:
1. witness waives
2. given immunity

Waiver can be implicit or explicit--e.g. by failing to state objection

Immunity:
1. transactional: prevent prosecution for any crime in testimony
2. use: prohbits use of testimony or any evidence derived therefrom