Privilege
Name the spousal testimonal privilege case
Trammel
Under AC privilege, the person asserting the privilege has the burden of establishing the following four elements:
1) the existence of AC privilege
2) a communication by the client
3) the purpose of the communication: it must be made to obtain legal advice and must relate to the subject matter on which legal advice is sought
4) the requisite confidentiality: the communication must be one that the client makes in confidence
What is the test for relevance under 401?
Evidence is relevant if:
a) it has any tendency to make a fact more or less probable than it would be without the evidence, AND
b) the fact is of consequence in determining the action
Name the two types of waiver?
Who can waive?
Express or implied waiver
Only the client (they are the sole privilege holder)
Waiver of AC Privilege under S+A Painting
Use of a document to refresh a witness's recollection may amount to waiver of AC privilege
Rule for spousal testimonial privilege
In a criminal case, the defendant's spouse has a privilege to refuse to testify against his/her spouse
MA Guide to Evidence Section 502: AC Privilege...
What is the general rule?
Under 403, when may relevant evidence be excluded?
Bonus: discuss the balancing test
403 FAVORS ADMISSION
May exclude evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issue, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence
Balancing test:
-value means probable value aka relevance = how much light the proferred evidence sheds on an issue
-danger means the risk posed by admitting the proferred evidence (unfair prejudice, etc.)
How do you maintain privilege?
When client consents to disclosure of otherwise confidential communications
Client must take some affirmative step to preserve confidentiality
What is @ issue waiver?
Attorney may reveal confidences necessary to defend himself in a claim of wrongful conduct
Name the spousal communications privilege case
Stafford
Under MA Guide AC Privilege, what communications are protected?
1) between the client (or his rep.) and the client's own attorney (or attorney's rep.)
2) between those involved in a joint defense
3) between reps. of the client, or between the client and a rep. of the client
4) among attorneys and their reps. representing the same client
404 (a)(1) PROHIBITS what?
404(a)(2)(A) PERMITS what?
PROHIBITS: Government's use of character to prove conduct on a particular occassion
PERMITS: D may offer evidence of his own character; prosecution may offer evidence to rebut it
Discuss the Von Bulow case
He impliedly waived AC privilege by promoting the book that published extracts of his (otherwise protected) confidential communications
What is AC privilege?
-A testimonial privilege
-Protects from disclosure client's confidential communications that otherwise qualify
-Provides absolute protection, though subject to exceptions
When you speak privately to your spouse and you don't intend that communication to be disclosed to any other person, the communication is confidential.
You are privileged to refuse to testify about it and you can prevent your spouse or former spouse from testifying about it
Under MA Guide AC Privilege, who may claim the privilege?
1) the client
2) a similar rep. of a corp., assoc., or other organization @ the time the privilege is claimed
3) the attorney @ the same time of the communication is presumed to have authority to claim the privilege but only on behalf of the client
404(a)(1) PROHIBITS what?
404(b)(2) PERMITS what?
PROHIBITS: government's use of other behavior to prove character
PERMITS: other behavior may be admissible to prove items on "laundry list"
How does fairness doc. apply to disclosures made in court (Von Bulow)?
-You testify @ trial to a portion of what would otherwise be a privileged communication
-By doing so, you make testimonial use of privileged info in the courtroom
-By deliberately injecting it into the case, you impliedly waive your privilege
-So you cannot prevent disclosure of the remainder of the communication @ issue
-Selective disclosure would distort the judicial process and expose it to potentially misleading evidence
What is work product doctrine?
Opinion work product vs fact work product?
-Only a discovery rule
-Protects from discovery documents prepared by client's rep. in anticipation of litigation
-Provides only qualified protection
Opinion work product: attorney's mental impressions, theories, etc. (this is more protected)
Fact work product: basic factual info., witness statements or photos, etc.
Which spousal privilege is terminated by divorce?
Which spousal privilege is not terminated by divorce?
Spousal testimonial privilege.
Spousal communications privilege.
1) crime/fraud exception: if the services of the attorney were sought to commit or to plan to commit what the client knows or reasonably should have known was a crime or fraud
3) breach of duty exception: as to a communication relevant to an issue of breach of duty between an attorney and client
What is behavior?
Character is what you are
Behavior is what you have done
How does the fairness doc. apply to extrajudicial disclosures (out of court disclosures)?
-Bc out of court disclosures do not distort the judicial process
-Note: if you later make testimonial use of the same privileged info in the courtroom, then obviously the fairness doc. will apply
Discuss Rule 501 in relation to psychotherapists.
Name case.
Convos between patient and psychotherapist are private and cannot be used in court
Case: Jaffree