Privileges

Question 1

Not recognized Privileges

Answer 1

• Parent/child
• Accountant
• Physician/patient

Question 2

Psycho Therapy Privilege

Answer 2

Privilege is not absolute. Threat of harm to patient and others can override it.

Question 3

Two Rationales for Privileges:

Answer 3

1. Promoting Social Goals (Professional Privileges)
   - Injury to relationship greater than admissibility of evidence
2. Confidentiality itself (Personal Privileges)

Question 4

Privileged communication

Answer 4

means it will remain confidential.

Question 5

Privilege with priest?

Answer 5

Privileges depends whether statement was said during a sacramental confession or in a regular conversation.

Court said inadmissible hearsay.

Question 6

Scope of the lawyer-client privilege

Answer 6

Privilege survives the client’s death but weakens the privilege when balancing harm of disclosure.

The privilege is the client’s

The privilege protects only those confidential communications made to facilitate professional services

The privilege protects only confidential communications

The identity of the client is not privileged and fee arrangements are also not privileged

Question 7

What happens when privileged lawyer/client communication is disclosed?

Answer 7

Two approaches:

1. Intentional= Waiver
2. Inadvertently = Not Waiver if:
   (1) Inadvertent
   (2) Reasonable steps to prevent
   (3) Once out reasonable steps to rectify

Question 8

Privilege against self-incrimination

Answer 8

5th amendment privilege will always win.

State can erase 5th amendment right if offered immunity from prosecution.

Question 9

The Spousal Testimonial Privilege (what it is)

Answer 9

Asserted only during marriage

Applies to pre-marriage statements

Only applies in criminal cases and only when defendant is spouse

Bars any adverse testimony

Even after marriage ends communication still privilege.

Exception for crime/fraud:

If both are engaged in criminal activity their communication is not privileged

Exception for domestic abuse

Exception if the communication relates to the abuse of a spouse or of their child

Question 10

The Spousal Testimonial Privilege (3 forms)

Answer 10

1. The witness-spouse is the one that can choose/refuse to testify against the defendant-spouse (Most common)
2. Defendant can prevent the other spouse from testifying (less common)
3. Either one can hold the privilege (traditional form)