Privileges Pt.1
Who must honor privileges when making preliminary decisions
The Judge (Rule 104(a))
Protects all confidential communications between a client and their attorney that are made for the purpsose of legal advice or representation
Attorney-Client Privilege (Rule 502)
Is there accountant-client privilege?
No
A witness who has certain knowledge, skill, experience, training, or education that testifies in the form of an opinion
Expert Witness
Experts are the only witnesses who can certify documents as ____.
Learned Treatises
(Rule 803(18))
This tye of law governs privileges in a civil case
State law
(Rule 501)
Crime-Fraud Exception to Attorney-Client Privilege
If a client seeks help in carrying out an ongoing crime or seeks advice about how to commit future crimes, the attorney-client privilege does not protect those communications
(see pg. 881)
Protects an individual against coercive interrogation; and it shields the privilege holder during pre-trial discovery as well as trial
Privilege Against Self-Incrimination Guranteed by the 5th Amendment
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is _____.
(a) rationally based on the witness's perception;
(b) helpful to clearly understanding the witness's testimony or determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702
(Rule 701)
Rule 704(b): In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a _____ or ______ that constitutes an element of the crime charged or of a defense. Those are matters for ______ alone.
mental state; condition; the trier of fact
Psychotherapist patient privilege protects all confidential communications between a patient and a psychologist, or social worker, as long as _______.
those communications were made to obtain psychological diagnosis or treatment
(see pg. 900-901)
If a client or attorney inadvertently disclose info covered by attorney-client privilege during a federal proceeding, the disclosure does not waive the privilege if the client __________.
(a) took reasonable steps to prevent the disclosure; and
(b) then took reaosnable steps to rectify the error
(see pg. 870)
All privileges can be _____.
Waived
What is Rule 703: Bases of an Expert's Opinion Testimony?
An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed OR facts or data that experts in the field would reasonably rely on in forming an opinion on the subject.
If the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.
When can experts remain in the courtroom, even if other witnesses are excluded?
If the expert's testimony requires knowledge of other trial testimony
(Rule 615)
With this privilege, there is no crime/fraud or dangerous acts exception, except for maybe mandatory reporting for child abuse
Spiritual Counseling Privilege
(see pg. 905)
What are the Upjohn Factors? What are they used for?
The Upjohn factors are used to determine whether a particular employee was a "client" entitled to protection of the attorney-client privilege.
1. The managers provided information directly to the company’s counsel to help the company secure legal advice
2. The managers knew this was the purpose of supplying the information
3. They provided this information in response to a superior’s request
4. The communications related to matters within the scope of the managers’ duties
5. Other employees could not provide this information to counsel
6. All parties treated the communications as highly confidential
*see pg. 875*
Type of testimony that arises when a spouse is a criminal defendant or the target of a grand jury investigation
Spousal Testimony
What are the Daubert Factors? What are they used for?
The Daubert Factors are used to test whether testimony is reliable
1. whether the theory or technique has been tested
2. whether it has been subject to peer review and publication
3. the technique's error rate
4. the existence of standards controlling the technique's application
5. whether the theory or technique has been generally accepted in the relevant scientific community
(see pg. 787-87)
What is Rule 705: Disclosing the Facts or Data Underlying an Expert's Opinion?
Unless the court orders otherwise, an expert may state an opinion and give the reasons for it, without first testifying to the underlying facts or data.
But the expert may be required to disclose those facts or data on cross-examination.
What type of protections do the following receive under attorney-client privilege?
(a) An attorney's mental impressions, conclusions, opinions, opinions, and legal theories
(b) factual compilations
(c) pre-existing documents that were originally no part of the attorney-client privilege
(a) absolutely privileged
(b) qualified protection
(c) not protected
(see pg. 886)
If the attorney knows their client is guilty, can they call the client to the stand and elicit testimony in which the client proclaims their innocence?
It depends.
A criminal defense attorney may not "refuse to offer the testimony of [their] client where the lawyer reasonably believes but does not know that the testimony will be false. Unless the lawyer knows the testimony will be false, the lawyer must honor the client's decision to testify.
(see powerpoint for class 25, slide 19)
What is Executive Privilege and its two levels?
Executive Privilege protects certain advice given to high level gov decision makers.
level 1: applies to military, diplomatice, and national security secrets. to invoke, the president must specifically claim the existence of a national security interest and must point to circumstances suggesting the presence of such concern
level 2: more common; protects presidents more generalized interest in confidentiality
(see pg. 903-904)
Explain the three ways in which FRE 703 is impacted by the Sixth Amendment Confrontation Clause
If the expert relies upon an out-of-court statement that is non-testimonial, there is no Sixth Amendment conflict.
If the attorney asks the expert a hypothetical question, and the expert bases their opinion solely on facts stated in the hypothetical, there is no Sixth Amendment problem.
If the expert relies on an out-of-court statement that is testimonial, there is no Sixth Amendment issue if the judge finds the underlying report's probative value in helping the jury assess the expert's opinion substantially outweighs its prejudicial effect. The judge will give a limiting instruction to the jury, instructing them to use the report only to assess the expert's opinion.
(see pg. 829-30)
How do you qualify an expert witness in court?
extra points if you do a full demonstration :)
1. The attorney who called the expert lays a foundation for the witness's expertise by asking questions about the witness's credentials and qualifications
2. The attorney then moves that the judge certifies the witness as an expert
3. Opposing party may be offered the opportunity to voir dire the expert. Opposing counsel can ask the witness questions to test their credentials.
4. The judge rules on the motion certifying the witness
(see pg. 807-8)