#9133 - Article 5 Privileges - Evidence

ARTICLE V: PRIVILEGES:

• FRE 501: General Rule (for federal criminal and federal question cases):

  • Except as otherwise required by Constitution, or provided by act of Congress, or in rules prescribed by Supreme Court pursuant to statutory authority:

    • Privilege of witness, person, government, state, or political subdivision thereof shall be governed by:

      • Principles of the common law, as they may be interpreted in the light of reason and experience

        • However, in diversity cases, privilege determined in accordance with state law

• Background Info on Privilege, esp. Attorney-Client Privilege:

  • Swidler & Berlin: The attorney-client privilege survives the death of the privilege holder

    • Here, the government cannot subpoena the notes an attorney made at his meeting with Vince Foster, even though Foster subsequently committed suicide

  • Confidential information must be treated by the privilege holder as such

    • E.g. If cabbie/murderer tells friend he killed his wife, he cannot claim that information is protected by attorney-client privilege

    • E.g. Suburban Sew ‘N Sweep v. Swiss Bernina: If company does not take precautions to destroy privileged documents, it cannot claim that information is protected by attorney-client privilege when plaintiff-scavengers fish the documents out of the dumpster

      • BUT Privilege holder can tell multiple people with whom talks are privileged

        • E.g. Tells lawyer, then tells priest, then tells psychotherapist

  • Privilege holder must have reasonable expectation of confidentiality under the circumstances

    • E.g. Conversation conducted in public won’t be held to be confidential

      • Privilege circle extends to necessary persons and persons whose presence is reasonable

        • Necessary: E.g. Intermediaries like translators, supervised parties like secretaries, paralegals, interns

        • Reasonable: E.g. Infant

  • Non-communicative observations/actions are not privileged

    • E.g. Lawyer must testify that client was covered in blood when he arrived at office

• Proposed but Rejected FRE on Privilege:

  • Required reports privileged by statute

  • Lawyer-Client

    • The Rule: Client has privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for purpose of facilitating rendition of professional legal services to client

      • (1) between himself or his representative and his lawyer or his lawyer’s representative OR

      • (2) between his lawyer and lawyer’s representative OR

      • (3) by him or his lawyer to a lawyer representing another in a matter of common interest OR

      • (4) between representatives of the client or between the client and a representative of the client OR

      • (5) between lawyers representing the client

    • The privilege holder: The privilege may be claimed by:

      • The client

      • His guardian or conservator

      • The personal representative of a deceased client

      • Successor/trustee/similar representative of a corporation/association/other organization, whether or not in existence

      • Lawyer at the time of the communication—but may only claim on behalf of client

    • Exceptions/No Lawyer Client Privilege:

      • Carter listed: Prevention of an imminent future crime

      • Furtherance of a crime or fraud: If services of lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what client knew or reasonably should have known to be a crime or fraud

        • Attorney need not know of crime/fraud but is used to perpetuate it

        • In re Francis Carter: Crime-fraud exception applies, statements are not protected by attorney-client privilege, nor by work product protection.

          • For exception to attorney-client:

            • Client made privileged communications with intent to further unlawful/fraudulent act AND

            • Client carried out crime or fraud

              • Here, perjury and obstruction of justice in having affidavit prepared

          • For exception to work product:

            • Client consulted lawyer/used material for purpose of committing crime or fraud

      • Claimants through the same deceased client: Lawyer can say who decedent would have wanted to win in case of contested will

      • Breach of duty by lawyer or client: Communication relevant to an issue of breach of duty by lawyer to client or by client to lawyer

        • e.g. in malpractice case, lawyer can describe how she advised the clients

      • Document attested by lawyer:

      • Joint clients: As to a communication relevant to a matter of common interest between two or more clients

        • If the communication was made by any of them to a lawyer retained or consulted in common

        • When offered in an action between any of the clients.

    • Definitions: Client: Person, public officer, or corporation/association/organization/entity, either public or private:

      • Who is rendered professional legal services by a lawyer OR

      • Who consults a lawyer with a view to obtaining professional legal services from him

    • Lawyer: Person

      • Authorized OR

      • Reasonably believed by client to be authorized

        • To practice law in any state or nation

    • Representative of the lawyer: One employed to assist lawyer in rendition of professional legal services

    • Communication is “confidential” if not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to client or those reasonably necessary for transmission of communication

  • Psychotherapist-Patient

    • Jaffee v. Redmond (US 1996): The federal courts recognize a psychotherapist-patient privilege under FRE 501

      • This privilege extends to licensed social workers in the course of psychotherapy

    • The Rule: Patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purpose of diagnosis or treatment of mental or emotional condition, including drug addiction, among himself, his psychotherapist, or persons who are participating in the diagnosis or treatment under the director of the psychotherapist, including members of the patient’s family

    • The Privilege Holder: The privilege may be claimed by:

      • The patient

      • His guardian or conservator

      • The personal representative of a deceased patient

      • Psychotherapist, but may only claim on behalf of patient

    • Exceptions:

      • Proceedings for hospitalization: No privilege for communications relevant to issue in proceedings to hospitalize patient for mental illness, if psychotherapist in course of diagnosis or treatment has determined that patient is in need of hospitalization

      • Examination by order of judge: If judge orders examination of mental or emotional condition of patient, communications made in course thereof are not privileged with respect to the particular purpose for which the examination is ordered

      • Condition an element of claim or defense: No privilege as to communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense

        • Or, after the patient’s death, in any proceeding in which any party relies upon the condition as an element of his claim or defense

    • Definitions: Patient: Person who consults or is examined or interviewed by a psychotherapist

    • Psychotherapist:

      • Person authorized to practice medicine in any state or nation

      • Or reasonably believed by patient so to be

        • While engaged in the diagnosis or treatment of a mental or emotional condition, including drug addiction OR

      • Person licensed or certified as a psychologist under laws of any state or nation, while similarly engaged

    • A communication is “confidential” if not intended to be disclosed to third persons other than those present to further the interest of the patient in the consultation, examination, or interview, or persons reasonably necessary for the transmission of the communication, or persons who are participating in the diagnosis and treatment under the direction of the psychotherapist, including members of the patient’s family

  • Husband-Wife:

    • Testimonial Privilege: Blocks all testimony by one spouse against the other, including testimony about pre-marital events or acts

      • Applies only if spouses are married when testimony is sought

      • Trammel: Witness spouse is the privilege holder

        • Defendant spouse cannot claim privilege to stop spouse from testifying against him

          • But, in another case, witness spouse who does not want to testify cannot be compelled to testify against defendant spouse

      • Exceptions:

        • Joint criminal activity (varies by J)

        • Child abuse by other spouse

        • Marriage in clear disrepair/long separation

        • Fraudulent marriage/marriage for the purpose of blocking testimony

    • Spousal Confidences Privilege: Blocks testimony about private communications between spouses while they were married

      • Applies forever to protect communications during the marriage

      • Montgomery: Spouses are co-privilege holders

        • Defendant spouse can claim privilege to prevent witness spouse from testifying about confidential communications between spouses

          • Here, letter telling husband to stop cheating customers was confidential/privileged communication

      • Exceptions:

        • Joint criminal activity (varies by J)

        • Suits between spouses

        • Child abuse by other spouse

        • No reasonable expectation of confidentiality/waiver

        • Marriage in clear disrepair/long separation (varies by J)

    • Rule: An accused in a criminal proceeding has a privilege to prevent his spouse from testifying against him

    • Privilege Holder:

      • The accused

      • The spouse on his behalf

    • Exceptions: No privilege:

      • One spouse charged with a crime against the person or property of the other or a child of either

        • Or with crime against person or property of a third person committed in course of...