Law Outlines Evidence Outlines
In-depth evidence outline gives the nuances of interpretations of the Federal Rules of Evidence in an easy-to-understand layout. Topics of this outline include: procedure and preliminary matters, character, impeachment, hearsay, the Confrontation Clause, expert witnesses, privileges, and California distinctions to the federal rules. This key gives each FRE number alongside each rule section, to allow you to get maximum points on your test. Also included: outline made in preparation for UBE/MBE ba...
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Privilege: Proposed 501, 502, 511, 512, 513
Privileges – General Information
FRE 501: General privilege
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.
Federal courts currently recognize attorney-client, spousal communications, psychotherapist/social worker
Waiver
4 ways
holder may indicate through words/conduct a desire to forgo the privilege
holder refrains from invoking privilege
But see 502: generally limits effect of disclosure when communication protected by A-C and work product doctrine is inadvertently disclosed
Voluntary disclosure of confidential communication Proposed Rule 511
Unless made in context of another privileged communication
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.
Inadvertent disclosures are not waivers. Governed by FRE 502.
Disclosures made under compulsion or without opportunity to claim privilege = not a waiver. Proposed Rule 512
Asserting claim based on privileged information
“when a party asserts a claim that in fairness requires examination of protected communications”
Proposed Rule 513
Exceptions
Derived from underlying policies the particular privilege was created to serve
Examples
A-C: crime/fraud
Marital: spousal abuse
Priest/penitent: child abuse
These privileges designed to preserve relationships, not to encourage assaultive behavior
Drawing adverse inferences from invoking a privilege
Griffin: allowing comment on D’s decision not to testify violated his 5th amendment privilege “by making its assertion costly”
Courts split on non-5th Amendment privileges
Proposed FRE 513 would’ve made comment/inference not permitted
Constitutional limitations
When W invokes privilege that harms D’s rights under the compulsory process and confrontation clauses (only criminal)
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.
Burden
On person invoking the privilege.
Must show attorney was contacted for legal professional purpose
Attorney-Client Privilege: Proposed 502/503
FRE 502/Proposed Rule 503
Elements
Attorney-client relationship existed at time of communications
Communication made for purpose of obtaining legal advice
Communications are confidential
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
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
Also covers communicaitons b/w client and attorney’s representative/employee
Kovel (protected comm’s shared with att’ys accountant)
Martha Stewart Case – extends this to public relations firm hired by lawyers (but not if client hires the pr firm)
Courts split when lawyer speaks with psychotherapist after D makes insanity defense (b/c it may qualify as “waiver by claim assertion”)
Problem of eavesdroppers
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
When attorney directs client to doctor, then communications not protected by physician privilege (because no treatment is contemplated),...
Buy the full version of these notes or essay plans and more in our Evidence Outlines.
In-depth evidence outline gives the nuances of interpretations of the Federal Rules of Evidence in an easy-to-understand layout. Topics of this outline include: procedure and preliminary matters, character, impeachment, hearsay, the Confrontation Clause, expert witnesses, privileges, and California distinctions to the federal rules. This key gives each FRE number alongside each rule section, to allow you to get maximum points on your test. Also included: outline made in preparation for UBE/MBE ba...
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