#11413 - Privileges - Evidence

Privilege: Proposed 501, 502, 511, 512, 513

1. Privileges – General Information

   1. FRE 501: General privilege

      1. federal cases applying federal law: federal common law governs whether a privilege applies. If state law applies (diversity cases), then the state law also governs whether a privilege applies.

   2. Federal courts currently recognize attorney-client, spousal communications, psychotherapist/social worker

   3. Waiver

      1. 4 ways

         1. holder may indicate through words/conduct a desire to forgo the privilege

         2. holder refrains from invoking privilege

            1. But see 502: generally limits effect of disclosure when communication protected by A-C and work product doctrine is inadvertently disclosed

         3. Voluntary disclosure of confidential communication Proposed Rule 511

            1. Unless made in context of another privileged communication

            2. Must be disclosure of the confidential communication itself. A voluntary statement of facts that were the subject of the communication is not a waiver of the privilege.

            3. Inadvertent disclosures are not waivers. Governed by FRE 502.

            4. Disclosures made under compulsion or without opportunity to claim privilege = not a waiver. Proposed Rule 512

         4. Asserting claim based on privileged information

            1. “when a party asserts a claim that in fairness requires examination of protected communications”

            2. Proposed Rule 513

   4. Exceptions

      1. Derived from underlying policies the particular privilege was created to serve

         1. Examples

            1. A-C: crime/fraud

            2. Marital: spousal abuse

            3. Priest/penitent: child abuse

         2. These privileges designed to preserve relationships, not to encourage assaultive behavior

   5. Drawing adverse inferences from invoking a privilege

      1. Griffin: allowing comment on D’s decision not to testify violated his 5th amendment privilege “by making its assertion costly”

      2. Courts split on non-5th Amendment privileges

      3. Proposed FRE 513 would’ve made comment/inference not permitted

   6. Constitutional limitations

      1. When W invokes privilege that harms D’s rights under the compulsory process and confrontation clauses (only criminal)

      2. Supreme Court has explored this: privileges that impede a D’s rights or governmental investigation may be unconstitutional, in violation of the 6th amendment or due process clause of 14th amendment.

   7. Burden

      1. On person invoking the privilege.

      2. Must show attorney was contacted for legal professional purpose

Attorney-Client Privilege: Proposed 502/503

1. FRE 502/Proposed Rule 503

2. Elements

   1. Attorney-client relationship existed at time of communications

   2. Communication made for purpose of obtaining legal advice

   3. Communications are confidential

      1. not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of rendition of professional legal services to the client or those reasonably necessary for the transmission of communication

      2. If a person approaches someone reasonably believed to be an attorney for the purpose of obtaining legal advice, confidential communications between the two are privileged even if the person is mistaken in the belief, unless one of the exceptions apply

      3. Also covers communicaitons b/w client and attorney’s representative/employee

         1. Kovel (protected comm’s shared with att’ys accountant)

         2. Martha Stewart Case – extends this to public relations firm hired by lawyers (but not if client hires the pr firm)

         3. Courts split when lawyer speaks with psychotherapist after D makes insanity defense (b/c it may qualify as “waiver by claim assertion”)

      4. Problem of eavesdroppers

         1. Modern trend: allow the holder of privilege to prevent testimony by eavesdropper as long as the setting of the conversation suggests that the speakers intended the conversation to be confidential

      5. When attorney directs client to doctor, then communications not protected by physician privilege (because no treatment is contemplated), but are protected by attorney-client

   4. Scope: may be limited by potential benefit/harm to litigants

      1. 3rd parties after holder’s death

         1. attorney-client privilege ordinarily survives death of client (Swidler & Berlin v. US)

            1. Dissent argued balancing test: public interest v private interest

      2. In re Navarro: even turning over to the client a public document, such as a police report, is covered. (att’y refused to testify about whether she handed doc to client)

      3. Some courts even protect atty’s opinions/impressions of former client (most courts don’t extend privilege to cover this)

3. Exceptions

   1. Furtherance of crime/fraud

   2. Claimants through same deceased client

   3. Breach of duty by lawyer or client

   4. Document attested by lawyer

   5. Joint clients

4. FRE 502 – A-C privilege; Limitations on Wavier

   1. Disclosure made in federal proceeding/to federal office, then waiver only if

      1. Waiver is intentional

      2. Disclosed and undisclosed communications or information concern same subject matter

      3. They ought in fairness to be considered together

   2. When disclosure is inadvertent, then NOT a waiver if:

      1. Disclosure is inadvertent

      2. The holder of the privilege or protection took reasonable steps to prevent disclosure; and

      3. The holder promptly took reasonable steps to rectify the error

The Marital Privileges: Proposed 505

1. Marital communications privilege

   1. protects confidential communications b/w spouses

   2. Not codified in FRE

   3. Trammel asserts that Supreme Court would continue to apply the marital confidential communications privilege (in dictum)

   4. Elements

      1. Communication between spouses

      2. During valid marriage

      3. Intended to be confidential (presumed if 1 & 2 are met)

         1. “Intended to be confidential”

            1. presumed

            2. reasonable expectation of confidentiality

               1. location

               2. volume

         2. presence of 3rd party indicates not intended to be confidential. Including children.

   5. Holder = both…

      1. Spencer & Trammel say that only...