Privileges

PRIVILEGES

 GENERALLY [FRE 501]

o “privileges shall be governed by the principles of the common law as they may

be interpreted by the courts of the United States in the light of reason and

experience.”

 HOWEVER—the federal courts can look at an evolving situation that the

common law does not cover and adapt the common law to cover it.

o Congress rejected all proposed privileges and instead left their determination to

the common law.

 PROPOSED BUT REJECTED RULES—though not official rules, they are

still followed by many federal courts.



 PROCEDURAL

o STANDING.

 you must identify the holder of the privilege

 ex—the holder of the A/C privilege is the client, not the lawyer

o OBJE CTIONS.

 Holder not a party—

 if privilege is improperly breached—party has not suffered any

legal harm and therefore has no standing to object

 if privilege is incorrectly applied—party can appeal because

relevant evidence has been excluded, not as holder of privilege.

o BURDENS.

 Burden of Persuasion—on the holder of the privilege.

o IN CAMERA INSPECTION.

 Trial court may review in camera allegedly privileged communications to

determine whether material qualifies for privilege

 CONNECT:

 FRE 104(a)—trial court may consider allegedly privileged

communications in determining whether threshold showing for in

camera review has been satisfied.

o CHOICE OF LAW.

 STATE LAW CLAIMS: ADOPT STATE LAW PRIVILEGES

 “in civil actions and proceedings, with respect to an element of a

claim… as to which State law supplies the rule of decision…

privilege[s]… shall be determined in accordance with State law.”

 STATE AND FEDERAL CLAIMS: ADOPT FEDERAL RULES



 ATTORNEY-CLIENT PRIVILEGE [P.R. 503]

o HOLDER: the client.

 only client has right to invoke or waive privilege

 lawyer may claim privilege on behalf of the client

 client need not be a party to the lawsuit

o ASSERTION OF PRIVILEGE

o WAIVER

 METHODS



client or attorney testimony—

o no subject-matter waiver—testimony concerning the

communication itself must be elicited for waiver.

 voluntary disclosure—

o disclosure of info resulting in waiver constitutes waiver

only as to communication about matter actually disclosed.

 inadvertent disclosure—

o usually judged by reasonableness of protections

 AS TO CORPORATIONS…

 may be waived by current management

 privilege passes with control of corporation

Compare: Work Product Doctrine

DEF: a qualified privilege covering all materials prepared in anticipation of trial.

SCOPE: covers all materials prepared in anticipation of trial, either by agents for attorney or by attorney

herself. May be waived.

EXTENT: overcome by party seeking discovery on a showing of substantial need and inability to obtain

substantial equivalent without undue hardship.

o SCOPE OF ATTORNEY-CLIENT PRIVILEGE:



PROTECTED COMMUNICATIONS

PR 503(b)(1)

LAWYER PR 503(b)(2)

IN A MATTER PR 503(b)(3)

OF COMMON PR 503(b)(4)

INTEREST PR 503(b)(5)







LAWYER LAWYER

CLIENT









LAWYER CLIENT CLIENT

REPS REPS REPS

o ELEMENTS

 PROFESSIONAL RELATIONSHIP.

communication is made for the purpose of receiving legal advice.

trial court must splice up communication if it mixes consultation

related to legal advice and some unrelated.

 COMMUNICATION.

 Only the communication is covered—not the facts.

 NOT COVERED:

o DOCUMENTS—pre-existing Special Case: Physical Evidence

documents do not become If C brings evidence to L…

privileged by transmission to …L must give it to prosecution

…L may have to stipulate

attorney.

authentication

o CLIENT IDENTITY

o DATES/TIMES/PLACES If C shows or tells L where evidence

o FEE ARRANGEMENTS is …

o FACT OF CONSULTATION WITH ATT. …L may verify location and be under

no obligation to reveal it.

…but, if L physically affects evidence,

People v. Meredith (Cal. 1981)—∆ tells L1 about robbery-homicide he she then must reveal the initial

committed and informs him of location of victim’s wallet. L1 finds the wallet location or circumstance of the

via investigator, PI, and passes evidence to prosecution. ∆ hires L2 knowing evidence so as not to impede

that L1 will now have to testify. L1 testifies but claims ACP. PI testifies and investigation.

claims privilege as representative of L1—PI forced to reveal location after

threat of contempt. ∆ convicted. When criminal defense counsel Modern Implications:

removes or alters evidence that was learned of through confidential given CSI-esque technologies, if a

communications with the defendant, the attorney-client privilege will court determines that trace evidence

were altered by counsel, ACP may be

not bar a court from compelling defense counsel to testify as to the

revoked as to location.

original location and condition of the evidence.



 CONFIDENTIALITY.



not intended to be disclosed



pure intent analysis—

o actual disclosure irrelevant if no intent

o client’s actions must be consistent with intention of

confidentiality.

Special Case: Presence of Third-Parties & Eavesdroppers

The level and reasonableness of protection that ∆ utilizes is how the court will measure whether ∆ had

sufficient intent to keep confidentiality



 The presence of a third party generally indicates that confidentiality was not intended—unless it is

reasonable to believe otherwise (e.g., presence of legal assistant, spouse)



 As long as the client did not know of the presence of an eavesdropper when communication took place

and took reasonable steps to preserve confidentiality, privilege is preserved.

o EXCEPTIONS

 CRIME-FRAUD EXCEPTION.

 privilege does not apply to communications concerning future

criminal or fraudulent acts.

 based on client’s intent.

 if party opposing privilege alleges that communication involved

future illegal acts, court may:

o review materials in camera

o review materials under FRE 104(A) to determine sufficiency

for in camera review.

 JOINT CLIENTS.

 communication between two joint clients may be used if one

decides to sue the other later on.

 BREACH OF DUTY BY ATTORNEY OR CLIENT.

 a client’s assertion of claim, counterclaim or affirmative defense

that places an otherwise privileged matter at issue.

o ex—malpractice suit

 CLAIMANT THROUGH SAME DECEASED CLIENT.

 DOCUMENT ATTESTED BY LAWYER.



Compare: Duty of Confidentiality

DUTY OF CONFIDENTIALITY ATTORNEY-CLIENT PRIVILEGE



Narrow Scope Broad Scope

(only communications) (all info arising out of representation)

Only in Legal Proceedings In and Out of Legal Proceedings





o THE CORPORATE CLIENT

 BROAD PROTECTION: based on work product doctrine.

 SCOPE:



high level management



middle level management



non-management.

 COVERAGE:

 employee makes the communication at direction of supervisors

 IMPACT:

 client and lawyer can communicate freely (better advice from

lawyer)

 broad privilege may encourage more abuse

o Big Tobacco doesn’t encourage compliance w/ the law and

justice, but rather the opposite.

 LANDMARK: Upjohn Co. v. United States (1981) []—The corporation learned that officials of one of

its subsidiaries had made possibly illegal payments to foreign government officials in order to get business. The

corporation thereupon sent a questionnaire to all of its foreign managers above a certain rank, asking for detailed

information about such payments. The letter told recipients that the answers would be treated as “highly

confidential” and responses were to be sent to the company’s General Counsel. The IRS learned of the

questionnaires and attempted to obtain them via subpoena. The company argued that the responses were protected

by the attorney-client privilege. Communications by lower-level employees authorized by a member of

management are deemed to be on behalf of the corporation and therefore protected by the attorney-

client privilege.



 PSYCHOLOGIST-PATIENT PRIVILEGE1 [P.R. 504]

o PARTIES

 HOLDER: PATIENT—only patient can assert or waive privilege.

 PSYCHOLOGIST:

 licensed therapists—

 clinical social workers—provide significant amount of mental

health treatment—clientele base cannot afford therapists.

o RATIONALE: effective psychotherapy depends upon an atmosphere of confidence

and trust in which the patient is willing to make a frank and complete disclosure

of facts, emotions, memories and fears.

o BURDEN: borne by party seeking to establish that privilege applies.

o WAIVER

 FAILURE TO OBJECT TO THERAPISTS’ TRIAL TESTIMONY

 PATIENT TESTIMONY ABOUT COMMUNICATION

o COMMUNICATION

 SCOPE: a therapist can be compelled to discuss all matters except2:

 communications made to a therapist by the patient

 advice given by a therapist to patient

 NOT INCIDENTAL

 must be made while seeking psychological treatment.

 privilege does not apply where examination is for other purposes:

o court-ordered psychological examinations.

 INTENT TO BE CONFIDENTIAL

 info intended to become public is not protected

o EXCEPTIONS

 CIVIL COMMITMENT PROCEEDINGS—disclosure is only authorized when the

psychotherapist determines that hospitalization is needed.

 COURT-ORDERED EXAMINATIONS—no expectation of confidentiality.

 note: does not apply to court appointed psychotherapist.

 PATIENT-LITIGANT RULE



 CRIME-FRAUD EXCEPTION

 DUTY TO WARN [SPLIT]—once therapist determines, or reasonably should

have determined, that a patient poses a serious danger of violence to







1

Note: the federal courts do not recognize a physician-patient privilege. Though most states recognize such a

privilege.

2

Privilege does not prevent testimony by a therapist as to the fact of professional consultation by a person on a

certain date.

others, she bears a duty toe xercise reasonable care to protect the

foreseeable victim of that danger.3

 LANDMARK: Jaffee v. Redmond (1996) [7-2]—Police officer Redmond, ∆, was answering a “fight in

progress” call when he witnessed several men run out of an apartment complex, one waving a pipe. When the men

failed to heed ∆’s order to get on the ground she drew her revolver. Two other dudes ran out, one with a butcher

knife, Ricky (Rick), and ignored her commands to drop the knife. ∆ shot knife Ricky (Rick) fearing he was going to

stab someone. During pretrial discovery, ∏ learned that ∆ had participated in 50 counseling sessions with a social

worker, B, after shooting. ∆ and B refused to disclose on the ground of the psychologist-patient privilege. District

judge ordered disclosure. Under FRE 501, the psychologist-patient privilege protects confidential

communications between a apatient and the treating licensed psychotherapist from compelled

disclosure.



SPOUSAL PRIVILEGES [P.R. 505]

o TESTIMONIAL PRIVILEGE4

 RULE: a spouse may not be compelled to testify against a defendant-

spouse in a criminal prosecution.

 HOLDER

 the witness-spouse holds the privilege5

 LANDMARK: Trammel v. United States (1980)[]—Trammel, ∆, was indicted on charges of

conspiracy to import and importing heroin into the US. In return for lenient treatment, ∆’s wife, who was arrested at

the airport in the US while carrying heroin, agreed to cooperate with government. Befre ∆’s trial, ∆ moved the court

to prevent his wife from testifying against him. Trial court denied motion and allowed ∆’s wife to testify to any act

or conversation that had taken place between ∆ and his wife in the presence of third parties, while preventing her

from testifying to conversations that had taken place between them in the absence of any other parties. An accused

may not invoke the privilege against adverse spousal testimony in order to exclude the voluntary

testimony of his or her spouse.

 PROCEDURE

 JURY ISSUES:

o prosecutor should not penalize ∆ by calling W, knowing

that spouse will exercise a valid privilege.

o spouse may be called outside presence of the jury to

determine if spouse will assert privilege

 WAIVER

 WAIVED BY HOLDER OF THE PRIVILEGE [WITNESS-SPOUSE]

 FAILURE TO OBJECT TO SPOUSE’S TRIAL TESTIMONY

 ELEMENTS

 VALID MARRIAGE—

o parties are not spouses if marriage is a sham.6

o bigamy invalidates marriage.

o court may assess health of marriage in determining whether

protection is due, in light of privilege’s policy.



3

Tarasoff v. Regents of the University of California, 551 P.2d 334, 345 (Cal. 1976).

4

Bentham argued that this privilege goes far beyond making “every man’s house his castle” and permits a person to

convert his house into a “den of thieves.” Bentham’s a little dramatic.

5

In some jurisdictions, both spouses hold the privilege and the witness-spouse may testify if both spouses waive

privilege.

6

That’s too bad, Britney.

 SCOPE—all testimony, including testimony concerning events that

predated the marriage.7

 DURATION—privilege exists for the duration of the marriage.

o note: divorce does not destroy privilege of confidential

communications.

 EXCEPTIONS

 CRIMES AGAINST SPOUSE OR CHILD—witness-spouse can be

compelled to testify in such cases (e.g., domestic violence).

o also applies if crime is against a spouse and third party

o not applicable if spouse was a willing victim in a

consensual criminal act (e.g., husband prostitutes wife)

 JOINT PARTICIPATION IN CRIME—outweighs policy of preserving

family harmony.



SPOUSE CHARGED WITH IMPORATION OF ALIEN FOR

PROSTITUTION OR OTHER IMMORAL PURPOSE.

o SPOUSAL CONFIDENCES PRIVILEGE

 RULE:

 HOLDER: may only be invoked by the husband or wife—often privilege is

extended to both parties; sometimes just to communicating spouse.

 DURATION: communications made during the marriage remain privileged

even after the marriage ceases.

 PROCEDURE:

 applies in both civil and criminal cases

 WAIVER:

 PRESENCE OF OR VOLUNTARY COMMUNICATION TO THIRD PARTIES

o also children old enough to comprehend communication

 FAILURE TO OBJECT AT TRIAL TO DISCLOSURE

 OFFERING TESTIMONY CONCERNING PRIVILEGED COMMUNICATION

 ELEMENTS

 SCOPE

o communications

o acts intended as communications

 INTENDED TO BE CONFIDENTIAL

o confidentiality presumed in absence of third parties

 MADE DURING MARRIAGE

o does not cover those made prior to marriage or after

marriage (e.g., divorce).

 VALID MARRIAGE

o does not apply to permanently-separated couples

 EXCEPTIONS

 SPOUSAL SUITS—e.g., divorce or child custody litigation

 CRIMES AGAINST SPOUSE OR CHILD

 JOINT PARTICIPATION IN CRIME



7

“marry-the-witness” tactic: if one gets married after crime is committed but before trial, the spouse’s testimony

becomes privileged. This is not necessarily a sham for purposes of the privilege.

o government needs to produce evidence of spousal

involvement—need not be substantial.

United States v. Estes (1986)—Estes, ∆, was charged with bank robbery, arising out of a theft from an

armored car. ∆ was also charged with perjury for lying to a grand jury investigating the theft. ∆ and wife laundered

the money and purchased several items from their home and a van using the cash. Eventually, they divorced. Wife

contacted the FBI and received a grant of immunity. She testified before the grand jury, describing ∆’s arrival with

the money, his confession, and their laundering activities. ∆ was convicted. The spousal confidential

communication privilege covers confidential verbal communications between spouses and acts

intended as confidential, but not communications concerning ongoing criminal activities.



 PRIVILEGE AGAINST SELF-INCRIMINATION.

o AN OVERVIEW

 FIFTH AMENDMENT: “No person…shall be compelled in any criminal case

to be a witness against himself.”8

o PERSONS PROTECTED

 belongs only to an individual

 cannot be claimed by corporations, labor unions, etc.

o WAIVER

 METHOD: holder of privilege testifies

 EXTENT: two interpretations—

 as to all relevant matters, including those affecting credibility

 as to matters about which the accused testified on direct

examination.

 CONNECT:

 FRE 611(b) ADVISORY COMMITTEE’S NOTE—“the rule does not

purport to determine the extent to which an accused who elects to testify thereby

waives his privilege against self-incrimination… [T]he extent of the waiver…

ought not to be determined as a by-product of a rule on scope of cross-

examination.”

o SCOPE

 ANY FORUM—privilege applies in any proceeding, civil or criminal,

formal or informal, where the answers might incriminate a person in future

criminal proceedings.

 INCLUDES: depositions, congressional hearings, admin proceedings.

9

 TESTIMONIAL EVIDENCE —

 RULE: must be communicative in nature

 physical evidence exempt:

o EVIDENCE FOR IDENTIFICATION

 handwriting or voice exemplars

 fingerprints, dental impressions, urine samples.

o ELEMENTS

 COMPULSION—does not prohibit voluntary self-incrimination; only

compulsory self-incrimination.

 custodial interrogation [Miranda]

 subpoena to testify

8

Extended to the states by Supreme Court. Malloy v. Hogan, 378 U.S. 1 (1964).

9

Schmerber v. California, 384 U.S. 757 (1966).

 INCRIMINATION

 protects only against incriminatory statements that subject the

speaker to criminal prosecution.

o cannot be assert others or speaker’s interest in privacy.

 once the possibility of criminal prosecution disappears, the

privilege ceases

o acquittal for crime10 or pardon

o expiration of statute of limitations

o double jeopardy

 privilege persists when appeal is still available

o IMMUNITY

 TRANSACTIONAL—precludes prosecution of W for offense about which

W testifies11

 USE—precludes use of W’s testimony

 AFFIRMATIVE DUTY: prosecution must establish by clear and

convincing evidence that its evidence is not derived from or

influenced by, directly or indirectly, the immunized testimony.

 IMPEACHMENT BAR: immunized testimony may not be used to

impeach a defendant.

o DRAWING OF ADVERSE INFERENCES

 RULE: the accused’s failure to testify cannot be used evidence of guilt.

 note: does not extend to civil proceedings.

 PROHIBITED METHODS OF DRAWING ADVERSE INFERENCES

 prosecutor-initiated comment

the ∆ is not compelled to  jury instructions

testify and the fact that she

does not cannot be used as an

 SHEILD

inference of guilt and should  upon request, a ∆ has a right to an instruction explaining the ∆’s

not prejudice her in anyway constitutional right to remain silent and admonishing the jury not

Carter v. Kentucy (1981). to speculate on ∆’s reasons for not testifying.

 it is not error to give such an instruction over ∆’s objection—even

though it may call attention to fact that ∆ did not testify.

 BUT NOT A SWORD:

 defendant cannot use failure to testify to suggest that she had no

opportunity to explain her actions.

 use of privilege as such allows prosecutor to comment on failure to

testify.

 LANDMARK: Griffin v. California (1965) [7-2]—Griffin was convicted for murder in the first degree.

Griffin exercised his Fifth Amendment right not to testify at his trial. The evidence at trial showed that Griffin had

been with the victim in the alley where the body was found. The prosecutor also commented on Griffin’s failure to

testify making numerous assertions that only Griffin could explain the peculiar facts surrounding the victim’s death.

During jury instructions, the trial court, referring to Griffin’s failure to testify, stated that the jury “may take that



10

After an acquittal for murder, the defendant may be required to testify in a civil action for wrongful death based

on murder.

11

A jurisdiction is not constitutionally compelled to provide transactional immunity—only use immunity. Kastigar

v. United States, 406 U.S. 441 (1972).

failure into consideration as tending to indicate the truth of such evidence and as indicating that among the

inferences that may be reasonably drawn therefrom those unfavorable to the defendant are the more probable…”

Griffin was convicted and sentence to death. In both state and federal courts the Fifth Amendment forbids

comment from the prosecutor on the accused’s failure to testify and bars the court from instructing

the jury that it may use such silence as evidence tending to indicate guilt.

o WRITINGS



the act of producing incriminating documents is viewed as testimonial for

the purposes of the Fifth Amendment.

 PREMISE:

 if the Government doesn’t know of a particular document’s

existence, a subpoena’s target is free to refuse to turn the document

over, because the act of producing the document would testify to

the fact that it does indeed exist.

 If the Government knows of a particular document’s existence, and

therefore knows what’s in it, they can probably get a warrant to

search for an seize the document.

 LANDMARK: United States v. Doe (1984) [6-3]—Doe owns several businesses. During a grand jury

investigation, several subpoenas were issued against Doe demanding certain business records. He moved to quash

the subpoenas. Trial court held that compelling certain incriminating records was violative of the Constitution.

The Fifth Amendment does not privilege business records against compelled disclosure, even if they

constitute evidence of criminal activity. Because the act of turning over or producing records may

have the testamentary effect of authentication and identification such act cannot be compelled

consistent with Fifth Amendment guarantees without a grant of use immunity to the producer.



 LANDMARK: United States v. Hubbell (2002) []—Hubbell, ∆, invoked 5A privilege declining to

produce tax papers and other documents relating to Whitewater investigation. ∆ produced material only after he was

granted immunity—information led to a new indictment for tax-related crimes. The immunity obtained in the

first case precluded later prosecution to the extent that the “testimonial aspect” of producing the

subpoenaed documents was a necessary precursor to the second prosecution.



o REQUIRED RECORDS DOCTRINE

 ELEMENTS OF ANALYSIS12:

 purposes of Government must be essentially regulatory

 information is to be obtained by requiring the preservation of

records of a kind which the regulating party has customarily kept

 records must have assumed “public aspects” which render them at

least analogous to public documents.

 POLICY: the question is whether there is a sufficient public interest to

outweigh the strong policy in favor of maintaining the protection of the

privilege.

o WAIVER

 COMPLIANCE WITH REPORTING REQUIREMENT—

 not viewed as compelled—failure to assert privilege.

o







12

Grosso v. United States, 290 U.S. 62, 67-68 (1968).