(M-Ev4) Privileges & Policy Exclusions

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Privileges and Bar Exam Implementation - Procedure

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General Rule: In federal court (and as as default on the MBE), apply the FRE
Exception : In federal diversity cases (wherein state law governs the substantive claims), still spply the FRE as to procedure, but apply state law with respect to:
1) Privileges,
2) Burdens of Proof and Presumption,
3) Dead Man's Statutes
Note: If tested on the MBE, the question must give an indication of the law in the state.

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Privileges and Bar Exam Implementation - Substance

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General Rule: Federal courts recognize the following privileges:
1) Attorney-Client,
2) Spousal (Husband-Wife) (including both the testimony privilege and confidential communication privilege)
3) Clergy (Priest-Penitent),
4) Psychotherapist-Patient

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Federal Common Law - Physician-patient privilege

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While most states recognize the physician-patient privilege, federal common law does not. Federal common law recognizes only a psychotherapist-patient privilege in this area. Therefore, on the MBE, do NOT presume that the physician-patient privilege applies (but always look to see if the question gives some other indication that it may apply).

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Attorney-Client Privilege

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A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client.

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Attorney-Client Privilege - Communication

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A communication is confidential if not intended to be disclosed to third persons.

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Attorney-Client Privilege - Individuals Affected

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The privilege applies even if the individual consulted is not an attorney, if the client reasonably believed that he was .

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Attorney-Client Privilege - Representative of Lawyer

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The privilege also extends to representatives of a lawyer. A representative of a lawyer is one employed by the lawyer to assist the lawyer in the rendition of professional legal services.

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Attorney-Client Privilege - No Privilege

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There is no privilege if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.

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Attorney-Client Privilege - Pre-existing Written Documents

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There is no privilege for pre-existing written documents (contracts, leases , memos) merely because they are given to an attorney.

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Physician/Psychotherapist-Patient Privilege

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A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of his physical, mental, or emotional condition, including alcohol or drug addiction.

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Physician/Psychotherapist-Patient Privilege - Third Party Presence

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The presence of third parties will not destroy the confidential nature of the communication so long as persons are present to
1) further the interest of the patient in the consultation, examination, or interview; are reasonably necessary for the transmission of the communication; or
2) are participating in the diagnosis and treatment under the direction of the physician or psychotherapist, including members of the patient's family.

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Physician/Psychotherapist-Patient Privilege - Waiver

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The privilege is waived if the patient, in any proceed ing, puts his physical, mental and/or emotional condition at issue.

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PA Rule - Physician/Psychotherapist-Patient Privilege

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Pennsylvania provides by statute [42 Pa. C.SA § 5929] that in any civil matter a physician is not allowed to disclose, without the patient's consent, any information which he acquired in attending the patient in a professional capacity that would tend to damage the patient's character.
The privilege does not apply in criminal actions.

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PA Rule - Psychotherapist-Client

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Pennsylvania has codified a psychologist-client privilege, providing that a licensed psychologist cannot be examined in any civil or criminal matter as to any information acquired in the course of professional services without the written consent of the client

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Client Examination by Doctor at Attorney's Request - Medical Treatment

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IF the primary purpose is for the medical treatment of the client
THEN it is likely that the physician-patient privilege would be applicable (if the jurisdiction so allows), and such privilege would be waived if the client puts his medical condition at issue (e.g. sues for personal injury).

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Client Examination by Doctor at Attorney's Request - Expert Opinion

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IF the primary purpose of retaining the doctor is to render an expert opinion to the attorney, so that the attorney may better conduct litigation or advise his client on the client's legal rights
THEN the physician-patient privilege would likely not apply (because no treatment is contemplated), but the attorney-client privilege may cover the communications between the client and the doctor, because the examination is necessary for the attorney's ability to conduct the case (i.e., it is necessary to help the client communicate his condition to the attorney).

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Client Examination by Doctor at Attorney's Request - Expert Opinion

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The attorney-client privilege would be waived if the doctor were later called as an expert witness by the same client.

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Spousal Privilege

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The spousal privilege has two separate and distinct parts:
1) the spousal privilege, which encompasses the right of either spouse in criminal cases to prohibit testimony by the other; and
2) the marital communications privilege, which protects confidential communications made during a legally valid marriage .

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Spousal Privilege Exceptions

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Generally, neither the marital communications privilege nor the spousal testimony privilege will cover communications or acts:
1) In furtherance of a future crime or fraud (i.e., joint criminal activity); or
2) Destructive of the family unit (e.g. cases of spousal or child abuse).

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Spousal Privilege - Federal Rule

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Federal courts follow the rule that the witness spouse holds the spousal privilege and can choose whether to testify against the defendant spouse.

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Spousal Testimony Privilege

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1) Protects ALL communications during and before marriage.
2) Upon divorce, entire privilege is lost
3) Criminal cases ONLY
4) Holder:
- Common law - Party spouse
- FRE - Witness spouse

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Marital Communications Privilege

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1) Protects CONFIDENTIAL communications (verbal or written) during marriage;
2) Divorce has no effect;
2) Applies in Civil and Criminal Cases;
4) BOTH are holders.

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Marital Communications Privilege - Exceptions

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1) suits between the spouses (including divorce and child custody disputes);
2) suits where one spouse is charged with a crime or tort against the other or the children in the household; and
3) where the spouses jointly participate in criminal acts, i.e., the "joint participant exception."

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PA Rule - Spousal Privilege

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Pennsylvania recognizes a statutory spousal testimonial privilege in criminal cases [42 Pa. C.S.A. § 5913]. As under federal law, the privilege belongs to the witness-spouse and can be waived by that spouse. Pennsylvania does not recognize the spousal witness privilege in the following proceedings, however:
1) for desertion and maintenance;
2) criminal proceedings for bodily injury or violence (whether done,attempted, or threatened) upon theother spouse or upon their children ;
3) proving the fact of marriage in support of a criminal charge of bigamy; or
4) murder or rape prosecutions.

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PA Rule - Confidential Marital Communications

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The confidential marital communications privilege is also statutory in Pennsylvania [42 Pa. C.S.A. § 5914], but operates in the same way.

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Self-Incriminating Statements - Criminal Cases

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Any statement made in the course of plea discussions with an attorney for the prosecuting authority that does not result in a plea of guilty or that result in a plea of guilty later withdrawn is excluded .
Withdrawn guilty pleas are also excluded.

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Self-Incriminating Statements - Nature of Evidence

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The privilege against self-incrimination applies only to evidence that is testimonial in nature.
Presentation of real and demonstrative forms of evidence are not protected (i.e., an accused can be compelled to give writing, hair and blood samples , fingerprints, and to stand in a lineup) .

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Self-Incriminating Statements Testimony Given at Preliminary Hearing

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Does not waive the privilege of the accused not to take the stand at trial. Furthermore, evidence given at a preliminary hearing is inadmissible at trial, and the prosecution may not comment on it.

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Self-Incriminating Statements - Derivative Use

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The government can compel testimony without jeopardizing the Fifth Amendment by granting immunity from using the actual testimony of the witness and any evidence derived therefrom (i.e., "derivative use").

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Automobile Crash Report Privilege

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A police officer may testify at a criminal trial as to statements made, so long as the statement does not violate the party's privilege against self-incrimination.
The results of breath, urine and blood tests administered pursuant to an accident are not confidential and may be admissible at trial.

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Other Privileges

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Other privileges recognized in some jurisdictions include a priest-penitent privilege, a social worker-client privilege, and privileges not to disclose one's vote , a newsperson's sources, and government secrets.

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PA Rule - Newsperson Privilege

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A Pennsylvania statute [42 Pa. C.S.A. § 5942] protects a newsperson from being required to disclose the source of any information obtained during the course of journalistic reporting. The Pennsylvania supreme court has interpreted the statute to include not only the identity of a personal informant, but also "documents, inanimate objects and all sources of information." The privilege is qualified and can be overcome by a clear and specific showing that:
1) the information is relevant and material to unresolved issues;
2) the information cannot be obtained from an alternative source: and
3) a compelling interest exists for requiring disclosure.

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PA Rule - Accident Report

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An accident report or a statement made at an accident scene to a police officer for the purpose of completing an accident report required under the Vehicle Code is privileged and may not be used as evidence at a civil or criminal trial.

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PA Rule - Sexual Assault Counselor

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Pennsylvania has adopted a statutory privilege. A sexual assault counselor may not, without the victim's written consent, disclose the victim's confidential oral or written communications to the counselor, and may not consent to be examined about the incident in any proceeding.
The privilege is absolute and may only be overcome by a defendant if he can show that he is entitled to such evidence under the Due Process or Confrontation Clauses.

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PA Rule - Accountant Disclosure

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Pennsylvania law establishes that an accountant may not voluntarily disclose or be required to disclose confidential and privileged information acquired via professional services rendered unless:
1) the client grants permission; or
2) federal law applicable to a substantive issue overrides the privilege.