Privileges: Federal Rules of Evidence

Privileges

 

1. Distinction
   1. Federal Rules only contain section 501 on privilege

1. Uniform Rules and common law, not adopted by the Federal Rules, are also tested

1. Federal Rule 501
   1. Except as otherwise required, the privilege of a witness shall be governed by the principles of the common law as they may be interpreted by the courts of the United States [FRE 501]
   2. Application of the Rule:
      1. The privilege of a witness is determined by state law in:
         1. Diversity cases
         2. Cases arising under state law
      2. The privilege of a witness shall be determined by modern common law in:
         1. Criminal cases
         2. Federal Question cases
         3. Cases arising under federal law
   3. Example: The NAACP is suing Chicago alleging racial discrimination. City attorney is called as witness and objects to testimony claiming attorney- client privilege- sustained?
      1. Sustained providing that the court provides the privilege is recognized under modern common law
      2. Federal Question case, so apply modern common law
   4. Approach
      1. What type of case is it?
      2. Apply the two rules

1. Kinds of Privileges

1. Confidential Communication Privileges
2. Incompetency Common Law

1. Dead Man’s Statute 

1. Largely abolished today [FRE 601]
2. states that in an action commenced or defended on the behalf of a deceased, testimony regarding any transactions with the deceased is inadmissible
3. Rule requires that state follow a state’s Dead Man’s Act in case controlled by state law principles [FRE 601]

1. Example: in diversity cases, where state law controls

1. Constitutional Privileges
2. Privileges Based on Public Policy

1. Areas of legal relevancy where certain types of information are inadmissible for public policy reasons

1. Approach to PrivilegeIssues
   1. Relationship
      1. Issue here: does a protective relationship exist?
      2. Test: a protected relationship exists if the client is seeking professional advice or consultation
         1. no compensation need be paid, nor must the attorney take the case
   2. Communication
      1. Actual communication itself is protected, but not the information
   3. Confidentiality
      1. Generally, only confidential communications are protected
      2. Re: Presence of 3^rdParties
         1. Generally, non-essential third parties destroy confidentiality
            1. Test in determining essentiality: if the 3^rdparty is furthering some purpose of the relationship, that party is essential and confidentiality is preserved
               1. Broad area, court is very liberal
         2. Eavesdroppers
            1. Non-essential 3^rd parties whose presence destroys confidentiality
            2. Common Law:
               1. At common law, eavesdroppers could testify
            3. Federal Rules does not give a position
            4. Modern View:
               1. known or reasonably anticipated eavesdroppers destroy confidentiality
               2. Unknown do not destroy confidentiality

1. Rule: Communications made in public are never confidential
   1. Example: Person hears a husband tell his wife at a race track that he robbed a bank- admissible

Holder

1. DEF: Holder is the person is whose favor the privilege operates
2. A privilege may only be asserted or waived by the holder or someone authorized as the holder’s representative
3. Re: Waiver
   1. A waiver of a privilege operates not as a total waiver, but merely permits questioning by the opposing party to the extent reasonably necessary to permit scrutiny of the disclosed information

Exceptions:

1. Attorney-Client Privilege
   1. Protects confidential communication both from attorney to client and from client to attorney made during the existence of a protected relationship
   2. DEF attorney: as one who is actually licensed or one who is reasonable believed to be licensed by the client
   3. Holder: the client
      1. Attorney may assert privilege on behalf of client
   4. Exceptions:
      1. Suits between attorney and client
      2. Suits between joint clients
      3. Disputes regarding a client’s will after the client’s death
      4. Communications made in furtherance of a future crime or fraud
   5. Re: Work Product
      1. Material prepared by the attorney herself for her own use, such material is not protected under the attorney-client privilege, but it may be protected from unjustified disclosure or discovery under the Work Product Rule
      2. Note: Simply handing over pre-existing documents does not by itself make these documents privileged
      3. Basic facts, such as name occupations, are never privileged
   6. A Corporation as a Client
      1. For federal courts, the attorney-client privilege applies to statements given even by ordinary employees to attorneys investigating relevant issues (Upjohn holding)
      2. In state courts, the “control group test” is used (more restrictive)
         1. Under this test, the attorney-client privilege applies only to a few high-up officials who have authority to decide corporate policy
2. Doctor-Patient Privilege
   1. Protect confidential communication made between a doctor and patient for the purpose of obtaining medical diagnosis or treatment
   2. Holder: the patient
   3. Communications Protected
      1. Communications include not only verbal communications, but observations as well (X-ray, scar, wounds, etc.)
   4. Exceptions:
      1. Where physical condition is at issue
      2. In criminal proceedings
      3. In malpractice actions
      4. In competency or commitment proceedings
3. Psychotherapist-Patient Privilege
   1. Exists is some jurisdictions
   2. Scope is broader in the sense that there are many people who are non-professionals which may be included
   3. Exception:
      1. Where mental condition is in issue
   4. Under state law, there is a duty is imposed to warn as to any immediate threat of harm by the patient
4. Priest-Penitent Privilege
   1. Adopted in majority of jurisdictions
   2. Holders: both parties, clergy and penitent
5. Husband-Wife Privileges
   1. Marital Communication Privilege
      1. Common law rule Protects confidential verbal communications made during marriage in both civil and criminal cases
      2. Effect of Divorce
         1. Upon divorce, confidential communications made during marriage remain privileged
      3. Modern trend
         1. Both observations and impressions are protected communications
            1. Ex: husband shows fresh needle marks on arm- protected
               1. At common law, would not because it is not verbal
      4. Holders: Both spouses are holders
         1. Each spouse may prevent the other from disclosure
      5. Exceptions:
         1. Crimes against the other spouse or children
         2. Statement made in furtherance of future crime or fraud
   2. Spousal Privilege
      1. Privilege of incapacity in a criminal case
      2. Protects all communications (not just verbal) regardless of confidentiality both prior to marriage and during marriage
      3. Effect of Divorce
         1. Upon divorce the entire privilege is lost
      4. Holder:
         1. Common law: the party spouse was the holder
         2. Federal courts: (no Federal Rule) the witness spouse is the holder
            1. may choose to testify, may refuse to testify
      5. Exceptions:
         1. crimes against the other spouse
         2. crimes against the children of either spouse
   3. Example: Δ is being prosecuted for larceny (in federal court)
      1. If Δ’s wife saw him commit the larceny, as a witness she may either:
         1. Refuse to testify
         2. Choose to testify
      2. If the wife did not see the husband commit the crime, but he confided to her afterwards that he committed the crime
         1. Here, even though under spousal privilege the wife may choose to testify- the husband under marital privilege may prevent his wife from testifying is he chooses not to waive his privilege