evidence - privileges.txt

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evidence - privileges.txt
2013-07-18 20:15:44
ca bar evidence privileges

ca bar evidence privileges
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  1. What privilege law applies in diversity actions?
    • In a civil action in Fed Ct. under diversity jurisdiction:
    • court must apply STATE privileges for the state where the court sits
  2. What privileges for FRE?
    • ASPS
    • 1) attorney-client,
    • 2) spousal,
    • 3) psychotherapist-patient, and
    • 4) social worker-client.
  3. What privileges for CA?
    • 1) doctor-patient
    • 2) counselor and victim of sexual assault or domestic violence
    • 3) penitential communications between clergy and penitent made in the clergy’s capacity as a spiritual advisor
    • 4) reporter-informant (immunity from contempt of court for news reporter who refuses to disclose sources).
  4. Attorney-client privilege
    • 1) A communication b/w attorney and client or their representatives
    • 2) intended by client to be confidential [objective intent] and
    • 3) made to facilitate rendition of professional legal services is privileged
    • 4) unless waived by the client.
  5. When does Attorney-Client privilege terminate?
    • Privilege survives the attorney-client relationship (P fires lawyer).
    • [Cal] Privilege ends once estate of dead client is distributed and executor of estate is discharged
  6. When does the attorney need to assert his client’s privilege?
    • [Fed] attorney may claim the privilege on behalf of the client; the privilege survives the client.
    • [CA] the attorney must assert the privilege on behalf of the client
  7. Attorney-client privileges and communications made by employees of a corporation?
    • 1) privilege applies to communications from employees/agents who are authorized by the corporation to make the communication on behalf of the company
    • 2) no privilege for mere witness who happens to be an employee
  8. Who is an attorney's representative for purposes of attorney-client privilege?
    Anyone hired by the attorney (e.g., doctor) to help render legal services is called an attorney’s representative, and the privilege remains, and any report such person creates is also covered under the privilege.
  9. Is solicitation a communication made to facilitate professional legal services?
    • 1) Preliminary interviews seeking representation are privileged
    • 2) Solicitation of free legal advice at a social gathering is not privileged
  10. When does Attorney-Client privilege not apply?
    • 1. Professional services were sought in furtherance of crime of fraud;
    • 2. Communication is offered to show an alleged breach of duty between lawyer and client [in malpractice brought by client]; or
    • 3. Where two or more parties consult an attorney on a matter of common interest and the communication is offered by one of these parties against another.
    • 4. [CA] Dangerous client exception. Privilege does not apply where lawyer reasonably believes that disclosure of communications is necessary to prevent crime that is likely to result in death or substantial bodily harm.
  11. Psychotherapist-Patient & Social Worker-Client
    communication between two parties, intended (obj. std.) by patient/client to be confidential and to facilitate provision of professional services is privileged in all civil and criminal proceedings unless waived by the patient/client
  12. Doctor-Patient
    • [CA, ONLY applies in civil cases]
    • patient has privilege to prevent disclosure of information intended to be confidentially conveyed to doctor or psychotherapist for the purpose of diagnosis or treatment, and the information was pertinent to diagnosis or treatment
    • It also applies to any information the doc gets by examining the patient (including stmts of when medical trouble began)
    • Confidential: Privilege does not apply where a patient sees a doctor for the purpose of the doctor to testify at trial – this is not confidential.
    • Pertinent to treatment: patient makes statement to doctor “I started having eye trouble when I went to prison for perjury,” not pertinent, not privileged!
    • Exceptions: Does not apply where
    • 1) doctor’s services were sought in furtherance of a crime or fraud, or to escape capture after a crime or tort;
    • 2) breach of duty / malpractice cases between doctor and patient; and
    • 3) in cases where the plaintiff places his physical condition in issue (such as a personal injury suit)
    • 4) psychotherapist has reasonable cause to believe that patient is a danger to himself or others, and if disclosure is necessary to end the danger
    • 5) info the doctor is required to report to a public office (gun-shot wounds, diseases, etc)
  13. What are the Spousal privileges?
    • 1) testimonial privilege
    • 2) spousal communication privilege
    • must be a legally valid marriage
    • Neither privilege applies in civil action between spouses or in criminal prosecution where one spouse is charged with a crime against the other spouse or one of their kids
  14. Spousal testimonial privilege?
    • Only witness holds the privilege; only applies if they are still married
    • 1) Permits witness to REFUSE TO TESTIFY against his/her spouse as to anything.
    • 2) Applies to anything that happened either during the marriage or before they were married.
    • 3) Privilege terminates upon divorce.
    • [Fed] applies only in criminal cases. But has to take the stand before jury and invoke privilege while up there
    • [CA] applies in both criminal and civil cases, and the spouse is privileged not even to be called as a witness
  15. Spousal Communication privilege?
    • BOTH spouses hold privilege; only applies to confidential communications during their marriage
    • 1) one spouse can prevent the other spouse from testifying
    • 2) protects confidential spousal communications during the marriage
    • 3) civil AND crimianl
    • 4) Privilege survives the marriage.
  16. How are CA privileges affected by prop 8?
    privileges are exempt from Prop. 8. Means that, even in a criminal case, the usual rules of privilege apply.