Term
| What is the only modern privilege courts have created? |
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Definition
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Term
| In criminal and civil federal question cases, what governs privileges? |
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Definition
| Common law as interpreted by the federal courts |
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Term
| In diversity; Erie cases the existence and scope of privilege is goverened by what law? |
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Definition
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Term
| Who may assert the privilege? |
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Definition
| The privilege belongs to the person whose interest or relationship is intended to be fostered by that privilege. He is the only one who may assert it. |
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Term
| What is the only privilege that is constitutionally based? |
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Definition
| The privilege against self-incrimination |
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Term
| If a privilege is not addressed before evidence comes in what is the remedy? |
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Definition
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Term
| When does the right of appeal arise concerning privileges? |
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Definition
| Not until refusal to testify and held in contempt |
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Term
| May an instruction be given the the trier of fact that the invocation of a privilege may or may not be used to infer fault? |
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Definition
| No; it's a constitutional error |
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Term
| May a person who waives their privilege invoke it later in the proceeding? |
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Definition
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Term
| What happens if a person fails to raise privilege when evidence is presented? |
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Definition
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Term
| Can a privilege be partially waived? |
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Definition
| No; most state privilege laws waive the privilege to all communications when any communication is revealed |
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Term
Would the following question be allowed?
"Did you have a converstaion with anyone wherein you stated you committed the murder?" |
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Definition
| No; proper question would be "Did you have a conversation with anyone other than your attorney?" |
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Term
| Are client-attorney communications about future acts covered by the privilege? |
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Definition
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Term
| Are attorney-client communications about past acts covered by the privilege? |
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Definition
| Yes; as to legal and non-legal matters |
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Term
| Laywer observes a scratch on client's face in a meeeting that takes place right after Client's wife has been stabbed to death. May the laywer be forced to testify at the client's trial about the scratch or is it privileged? |
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Definition
| Yes; the scratch is not privileged since anyone could have observed it. |
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Term
| Lawyer interviews Witness; statements are made by the witness that incriminate Client. Are these statements privileged? |
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Definition
1) Probably not, because witness is not working on behalf of laywer
2) However, if the only reason Laywer knew to interview witness is because client told him ot do so, the privilege might apply to W's statements |
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Term
T or F
A privilege applies to multiple issues, as long as they are all covered. |
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Definition
| False; it applies only to a specific issue |
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Term
T or F
One a court finds that a privilege exists, testimony can be used if the court determines it's relative and probative. |
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Definition
| False - it can't be used even if relevant and probative |
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Term
| How may a privilege be raised? |
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Definition
| by the holder, or sua sponte |
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Term
| May the court waive a privilege? |
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Definition
| No; only the holder may waive a privilege |
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Term
| What happens if a 3rd persons intercepts a privileged communication? |
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Definition
| The communication is protected so long as the interception was not reasonably anticipated |
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Term
| What happens to a privilege if the holder discloses? |
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Definition
| If the disclosure is voluntary; the privilege is waived |
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Term
T or F
Deliberate disclosure by an attorney constitutes a waiver |
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Definition
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Term
T or F
Negligent disclosure by an attorney does not constitute a waiver |
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Definition
| FALSE- it DOES constitute a waiver |
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Term
T or F
Disclosure in court constitutes a waiver |
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Definition
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Term
| Do most professions allow disclosure when compelled by a court? |
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Definition
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Term
| Who is covered on the attorney's side under the attorney client-privilege? |
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Definition
1)Anyone client reasonably believes is a lawyer
2) all office staff/representatives of lawyer
3) business support that is part of legal advice (accountant)
4) experts used for consulting (not trial) |
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Term
| Are a clients representatives covered under the clients side of the attorney client privilege? |
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Definition
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Term
| When do the duties of the attorney-client privilege start? |
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Definition
| Before intial consult; the conflict check |
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Term
| When do the full duties of the attorney-client privilege start? |
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Definition
| When the client reasonably belives the lawyer represents them |
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Term
| In order for a communication to be privileged, what 3 things are required. |
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Definition
1) Client must intend the communication be confidential (reasonable person standard)
2) Client must have preserved the confidentiality
3) Communications must be for a legal purpose |
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Term
| Are privileged documents found in the garbage protected? |
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Definition
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Term
Privileged or Not-Privileged?
Tax advice |
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Definition
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Term
Privileged or Not-Privileged?
Attorney acting as agent of court |
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Definition
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Term
Privileged or Not-Privileged?
Underlying subject matter |
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Definition
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Term
Privileged or Not-Privileged?
Anonoymous restitution |
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Definition
| Privileged; when it's the last link it the chain to incriminate the client |
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Term
Privileged or Not-Privileged?
Mental capacity |
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Definition
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Term
Privileged or Not-Privileged?
Evidence that is left in place |
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Definition
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Term
Privileged or Not-Privileged?
Lawyer takes evidence for a reasonable time to inspect it then returns it back to client |
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Definition
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Term
Privileged or Not-Privileged?
Other side learns of evidence in lawyers possession |
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Definition
| Not privileged by most courts, must say how it came into his possession |
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Term
Privileged or Not-Privileged?
Communication that relates to the commission of a future crime |
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Definition
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Term
Privileged or Not-Privileged?
Documents that existed before client see's a lawyer |
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Definition
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Term
Privileged or Not-Privileged?
The action of handing over a document to an attorney |
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Definition
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Term
| In Erie/Diversity case; what law governs privilege? |
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Definition
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Term
| In an erie/diversity case will Federal Work product doctrine be applicable? |
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Definition
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Term
| Does a privilege survive death? |
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Definition
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Term
Privileged or Not-Privileged?
Suits concerning contest of will |
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Definition
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Term
Privileged or Not-Privileged?
Issue of who receives deceased property? |
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Definition
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Term
Privileged or Not-Privileged?
Disputes; lawyer/client |
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Definition
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Term
Privileged or Not-Privileged?
Joint clients; same attorney- dispute arises |
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Definition
| not privileged in dispute |
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Term
Privileged or Not-Privileged?
Dispute; joint clients separate lawyers |
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Definition
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Term
Privileged or Not-Privileged?
Dispute; joint clients separate lawyers |
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Definition
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Term
| What are the 2 test in determining whether communications between a corporation and an attorney are covered? |
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Definition
1) Only those authorized to speak on behalf of the corporation are covered
2) UPJOHN:
Covers employees as well
Communication must relate to employee's performance of corporate duties
Employee must have communicated with attorney who was acting in capacity as corporate counsel
4) Reports must be primarily for the purpose of obtaining legal services to be privileged
5) New management can waive/invoke privilege of old management |
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Term
| What is the main difference in the 2 tests for privileged information relating to corporations. |
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Definition
| UPJOHN is broader; it covers employees |
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Term
| What is the main difference in the 2 tests for privileged information relating to corporations. |
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Definition
| UPJOHN is broader; it covers employees |
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Term
Privileged or Not-Privileged?
CCing a lawyer on a company email |
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Definition
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Term
| Under the psychotherapist-patient privilege; what communication is protected? |
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Definition
| Communication that is intended to be confidential from the patients point of view |
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Term
| Under the psychotherapist-patient privilege; what communication is protected? |
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Definition
| Communication that is intended to be confidential from the patients point of view |
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Term
| Does the psychotherapist-patient privilege apply to social workers |
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Definition
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Term
Privileged or not-privileged
Patients drug addiction |
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Definition
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Term
Privileged or not privileged?
Proceedings to hospitalize for mental illness |
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Definition
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Term
Privileged or Not-Privileged?
Child abuse |
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Definition
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Term
Privileged or Not-Privileged?
Workers compensation claim |
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Definition
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Term
Privileged or Not-Privileged?
Examination by order of judge |
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Definition
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Term
Privileged or Not-Privileged?
Condition as element of claim or defense |
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Definition
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Term
Privileged or Not-Privileged?
Patient is litigant |
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Definition
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Term
| Is the psychotherapist-patient privilege recognized in federal court? |
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Definition
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Term
| What are the 2 types of spousal privileges? |
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Definition
1) Adverse testimony
2) Confidential communication |
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Term
| What is the spousal testimonial privilege? |
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Definition
Applies only if the parties are still married; but applies to statements made before the marriage took place. It covers acts.
Only applies to adverse testimony |
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Term
| Under the testimonial spousal privilege; who can invoke the privilege? |
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Definition
| It's split in states; majority gives it to criminal D |
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Term
| What is the confidential communication spousal privilege? |
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Definition
Narrower; applies only to statements made during marriage, regardless of whether parties are still married
Covers both beneficial and adverse testimony |
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Term
| Who holds the confidential communication spousal privilege? |
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Definition
| both spouses, D spouse can block W spouse unless a suit involving each other or children |
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Term
T or F
The confidential communication spousal privilege applies to both criminal and civil cases |
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Definition
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Term
T or F
The adverse testimonial privilege applies to both criminal and civil cases |
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Definition
| False; applies only in criminal cases where spouse is criminal D |
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Term
| What are the 6 exceptions to the adverse testimonial spousal privilege? |
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Definition
1) Joint crime
2) Unhealthy/sham marriage
3) Spousal abuse
4) Child abuse
5) Disclosure to 3rd party by spouse- (third party can be forced to testify)
6) matter occurring prior to marriage |
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Term
| What are the 6 exceptions to the confidential communication spousal privilege? |
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Definition
1) Sham marriage
2) Spousal abuse
3) child abuse
4) communications in front of outsiders
5) communications in front of family members old enough to comprehend them
6) matter occurring prior to marriage |
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Term
| Which privilege; confidential communication or testimonial has a broader recognition by virtually all the states? |
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Definition
Confidential (FRE + virtually all)
Testimonial (FRE + some states) |
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Term
| Under the governmental/informer privilege who holds the privilege? |
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Definition
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Term
| Under the governmental/informer privilege what is the privilege limited to? |
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Definition
| Identification and location |
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Term
| Under the governmental/informer privilege is the substance of the information privileged? |
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Definition
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Term
| Under the governmental/informer privilege when may the government be required to reveal the identiy of the informer? |
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Definition
| If there's a constitutional issue |
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Term
| Under the governmental/informer privilege who holds the burden? |
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Definition
| The defendant; to over-come |
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Term
Privileged or not-privileged?
State secrets |
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Definition
| Privileged (governmental) |
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Term
Privileged or Not-Privileged?
Surveillance location |
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Definition
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Term
| What are the 2 types of the privilege against self incrimination? |
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Definition
1) Criminal defendant
2) A person who is asked to give incriminating testimony |
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Term
| When does the privilege against self incrimination nullify? |
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Definition
| When the evidence is no longer incriminating |
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Term
| Is the physician patient privilege recognized? |
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Definition
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Term
| Is the clergy-penitent privilege recognized? |
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Definition
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Term
| Is the journalistic privilege recognized? |
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Definition
| Limited use in federal court |
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