Chapter 12 Privileges I. PRIVILEGES GENERALLY: a. 501: General Rule—Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof 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, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law. b. Commonly Recognized Common Law Privileges [federal system]: i. Attorney-Client Privilege—EVERY circuit recognizes ii. Marital Testimonial [Adverse Testimonial]—federal CRIMINAL iii. Spousal Confidential Communication iv. Psychotherapist-Patient Qualified Privilege—9th Circuit v. Grounded in Constitution… 1. Executive Privilege 2. National Security vi. Attorney Work-Product c. California Recognized Privileges: entirely codified…therefore forget Cal. CL privileges i. Privilege of Accused NOT to be called as a witness [§ 930—5th Amendment] ii. Privilege Against Self-Incrimination [§940—civil case and deposition taken] iii. Attorney-Client Privilege [§ 950] iv. Privilege NOT to testify against a spouse or to be called as a witness against a spouse [§ 970— applies in ALL proceedings, NOT just criminal (like federal)] v. Physician-Patient [§ 990—often waived by filing of action] vi. Psychotherapist-Patient [§ 1010] vii. Clergyman-Penitent viii. NOT commonly found federally, but found in Cal.! 1. Sexual Assault Victim-Counselor [§ 1035] 2. Domestic Victim Violence Counselor [§ 1037] 3. Privilege to NOT disclose identities of informers [§ 1040] 4. Privilege to Secret Ballot Votes [§ 1050] 5. Trade Secrets Privilege [§ 1060] 6. Newsman’s Privilege to NOT disclose news sources [§ 1070] ix. Cal. § 901—ONLY privileges provided for his code shall be recognized as privileges d. HOW PRIVILEGES WORK: i. Can’t even be called: 5th Amendment [Criminal D isn’t even called to stand] ii. To NOT have to testify against a particular person: spousal testimonial [don’t have to testify adversely to your spouse] iii. Protects certain matters from being introduced: preventing confidential matters from being introduced…can be called to testify about anything EXCEPT confidential matters e. REQUIREMENTS: i. MUST be member of legally protected privilege ii. Communication made between the holder of privilege and other person 1. Attorney-Client = client holds, but attorney will assert on their behalf 2. Spousal Communication iii. Communication made in confidential setting [if in crowded elevator = doesn’t qualify] f. WAIVER OF PRIVILEGE: i. Express—‘I hereby waive my…’ ii. Impliedly—by answering question [don’t assert privilege (attorney or client) and they answer question, thereby waiving the privilege of the subject matter of the question] iii. Asserting things that require disclosure—by implication waives this privilege 1. Asserting the insanity defense [waiving the psychotherapist privilege] 2. Sue attorney for malpractice [waiving the attorney-client privilege]
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SPOUSAL PRIVILEGES: a. Applies to legally recognized marriages [NOT domestic partnerships] b. SPOUSAL TESTIMONIAL PRIVILEGE: MUCH broader i. Precludes testimony [Criminal = federal] 1. Precludes ALL testimony, NOT just testimony to a communication 2. Cal. = would preclude spouse being called as adverse witness to a party [civil or criminal] ii. Holder = testifying spouse 1. E.g.—if H charged with importing cocaine, holder of privilege is W = she can decide whether to testify or not 2. Theory—want to protect marriages, but if spouse willing to testify…there isn’t much left there to protect 3. Trammel v. US (1980)—witness spouse alone has privilege to refuse to testify adversely; the witness may neither by compelled to testify nor foreclosed from testifying [furthers public interest in marital harmony without unduly burdening legitimate law enforcement needs] iii. Ends when marriage ends—if policy is that don’t want to ruin marriage, then there is nothing to prohibit testifying once the marriage is over iv. EXCEPTIONS: 1. Joint Participant—if H and W are joint participants in a crime = NO privilege 2. Spousal Abuse or Battery on Child—NO privilege 3. Future Crime, Future Fraud Privilege c. SPOUSAL CONFIDENTIAL COMMUNICATION: i. Precludes testimony regarding communication made during marriage 1. ONLY protects communication AFTER ‘I do’ and before the divorce 2. MUST be communication between the spouses… ii. Holder = party to communication 1. NOT only does testifying spouse have testifying privilege, but so does the D spouse 2. E.g.—guilty wife can block husband from testifying [can NOT testify that she said she was going to bury body in back yard…but could testify that he watched her bury body in back yard] iii. Survives marriage—want to foster open communication in marriage iv. EXCEPTIONS: 1. Joint Participant 2. Domestic Violence—spousal or child of either 3. Future Crime, Future Fraud d. Problem: 12-1 i. B and C lived together for 2 years, during that time C told B that he robbed banks for a living…the two subsequently married…C then charged with bank robberiesif B chooses to testify [adverse spousal testimony], C can NOT stop her…if she chooses to testify, can be asked about statement made PRIOR to marriage because NOT cloaked by spousal confidential communication ii. The prosecution calls B to testify that C was wearing a red sweater and matching suede shoes on day of robbery… 1. Can C prevent B from testifying to those facts if the H-W confidential communications privilege appliesNO, communication privilege does NOT apply because this is NOT communication, ONLY observations 2. Can C prevent B from testifying to those facts if the adverse spousal testimony privilege appliesNO, up to B to decide if wants to testify [wants to save marriage or to testify] iii. C tells his secretary to take down the following letter to be delivered to B: ‘B, meet me at the bank and bring the ‘stuff’, you know what I mean’…the government wishes to introduce this letter at bank robbery trial in which C is defendantletter is admissible, while the letter is for B, it is NOT confidential = involving the secretary in the preparation of the communication to W destroys confidentiality
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iv. B dies of chronic illness during trial, does B’s death terminate the H-W confidential communications privilegeprobably makes her unavailable as a witness…hard to see how this becomes issue [it would survive her death, but does NOT make sense in this context] v. Based on bruises found on B, C is charged with aggravated battery…at trial, B is called to testify by the prosecution, can C assert a marital privilegeallegation that is the source of her injury vitiates the privilege…even though innocent until proven guilty, it makes her testimony more important to the case = thus NO privilege exists vi. After C’s death, C’s estate is sued by a 3 rd party claiming C robber her, buried the jewelry that he had taken and informed B of the location of the jewelry before he had died…if B was told by C that he had stolen the jewelry and had buried it in certain place, must C disclose this information at trialif she only heard about this and did nothing = could assert privilege [confidential communications]…if she helped him bury, then privilege would NOT apply [could assert the 5 th, but NOT spousal privilege] ATTORNEY-CLIENT PRIVILEGE: a. PRIVILEGE: Protects from disclosure confidential communications between the attorney and client IF it is for the purpose of securing legal services i. Holder of privilege = client 1. Clientsomeone who seeks legal services 2. Client does NOT have to agree to pay [pro bono or someone else paying] 3. Does NOT matter if client doesn’t take attorney or attorney doesn’t take case so long as communication made for purpose of obtaining legal services ii. Attorney = duty-bound to assert privilege on client’s behalf 1. Attorneypassed the bar and licensed to practice law 2. Someone who client reasonably believes is licensed to practice law 3. Attorney-client privilege ONLY applies when attorney is behaving as attorney [rendering legal advice or legal services] a. Attorney that prepares tax return is NOT acting as attorney b. Off-hand remark to friend who is attorney at cocktail party = NOT intending to retain legal services and NOT in confidential setting iii. Confidential: 1. Identity of client is NOT generally privileged a. Exceptions: very narrow i. Last Link—law enforcement investigation going on and know what was done, when it was done, know someone committed crime and know who the lawyer is…client is the last link = but the client’s identity is deemed privileged here ii. Whistle Blower—usually civil situation where someone inside a company discloses a dangerous practice [could cause client problem in employment arena…client is confidential when working to correct a wrong] 2. Intent that communication is kept confidential—if disclosure is made to someone outside the ‘confidential group’ [persons essential to the rendering of legal services = paralegal; investigator…], the privilege is waived b. WAIVER: holder of privilege can waive the privilege i. Expressly ii. Inadvertently—by disclosing information in a document that is privileged [make sure that NOT turning over privileged information when request for documents] c. WHY ATTORNEY-CLIENT PRIVILEGE—without it people would be less likely to seek legal advice i. Cloak communications between people seeking advice of lawyers as to how to solve their problems ii. If attorneys could disclose information it would negatively affect lawyer’s ability to provide legal service and client’s ability to seek justice d. EXCEPTION: i. Future Crime, Future Fraud = If attorney is consulted about committing a future crime, future fraudthat communication is NOT privileged
1. If someone asks you to help them with a past fraud and then tells all about it and indicates that if it goes to trial, they will lie about it: a. Try to talk the client out of breaking the law b. If that doesn’t work, can NOT represent client c. If client finds another attorney and is called to stand and commits perjury and is later charged = can be compelled to testify about communication with client 2. Communication about intent to commit future crime [perjury] e. Problems: i. 12-2: A worries that she may have committed a crime, so she seeks legal advice…after going food shopping, she stops and speaks to a person named M, who is seated in booth outside…booth decorated with sign ‘Lawyer—reasonable fees…1st consultation free’ A discusses her situation with M, but decides not to hire him… 1. If A is later charged with a crime concerning the same situation she discussed with M, can prosecutor call M to testify about what A told himat time she spoke with him she was seeking legal advice, fact that she did NOT retain him does NOT matter = privilege still applies [could be issue of confidential setting] 2. If it turns out M had passed bar, but never completed as application at time he offered advice, can he now be called to testifyas long as she reasonably believed he was a lawyer = privilege applies [issue that he is practicing in booth outside market should give concern] 3. If, during same conversation, A sought business advice from M [who had MBA] about a particular real estate investment would the conversation be privilegedeven if consulting him about a crime committed = NOT something that cloaks attorney-client privilege, even if in connection…NOT covered by privilege 4. If A’s brother pays for attorney and A hires M, is there still attorney-client relationship between A and Mdoes NOT matter who is paying the fee…privilege still exists between the attorney and client 5. A provides M with incriminating information, but later fires him…2 months later A is charged with a crime and M is called to testify by the prosecution and M would love to tellA thought she might have committed crime in past…M can NOT disclose anything from communications [even if she fired him]; privilege still exists [specific instructions regarding subsequent disclosures do NOT matter]…even after the relationship ends, the privilege still survives ii. 12-3: A defense lawyer, P, is subpoenaed by a grand jury investigating a stabbing leading to a person’s death 1. P is asked about a knife allegedly given to P by her client…if client did give her a knifedo NOT take custody of evidence of crime = if you do, you can examine it…but after that it is your duty to turn over to the authorities, can NOT keep relevant physical evidence from the authorities [duty as officer of court] a. Privileged part = communicative act [here is knife, it is from me (the client)] b. If subpoenaed and respond = that response is admitting that evidence is from this person [pressure on attorney to turn over before this happens] c. Cal. case—client told the incinerated wallets related to murder victims…attorney sent out investigator and they found it and brought back to attorney = by moving the wallet, investigator destroyed evidencemust disclose where found and turn over the wallet [if investigator left it there and just looked at the wallet = NO duty to tell police where to go look for wallets] 2. P is asked by grand jury about the name of the person who is paying her attorney’s fees and the amount of those fees, P refuses to answername of client is generally NOT privileged [except for last link exception] = one court has held that name of 3 rd party is NEVER privileged 3. Prosecutor issues a subpoena for P’s personal notes about the case, must she disclose themAttorney work product = do NOT have to disclose unless there is a compelling need for the information 4. Assuming the name of P’s client is disclosed, can her client by subpoenaed to provide a handwriting sampleYES…does not violate the privilege against self-incrimination
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5. Can P’s client be required to provide a hair sample, to see if hairs found at the crime scene match those of her clientYES…does NOT violate privilege against selfincrimination 6. P’s client asks P how best to lie before the grand juryAttorney-client privilege does NOT apply…NOT privileged = future crime, future fraud exception iii. 12-4: while meeting in private with C, the attorney for his paper company, N informs her that he has extorted money from several public officials…he provides C with specific information about the acts of extortion 1. Assuming N is the company, attorney client privilege exists…if conversation took place in middle of happy hour party it would make difference because NOT confidential [NO intent to keep confidential] 2. C can NOT waive attorney-client privilege without the approval of N 3. If N asks C’s help in extricating himself from his ‘very last’ extortion against the new mayor, is the conversation privilegedif already done = maybe completely passed and privileged…but if going to try to cover it up = could be future crime, future fraud exception and NO privilege f. ATTORNEY-CLIENT PRIVILEGE AND THE CORPORATE CLIENT: i. Upjohn case—abandoned the ‘control group’ test = anyone who can involve a corporation in legal difficulties would have need to speak with legal counsel 1. Adopts a case-by-case analysis 2. Lowest level of company can give confidential information to corporate attorney [in house or outside counsel] ii. Problems: 1. 12-5: IBS Corporation consults with its attorney about pending litigation against the company…a technician employed by IBS is subpoenaed to provide information about his communications with the attorneys for IBS…can technician assert attorney-client privilegeYES…so long as communication made with attorney was with the purpose of rendering legal services for the corporation 2. 12-6: a company named LA Cooke is charged with fraudulently violating security laws relating to a stock redemption…can shareholders obtain the communications between the corporation’s managers and its attorneys relating to the stock repudiationPossibly…one case allows the shareholders to get this information on the theory that they are the owners, lawyers are communicating on behalf of owners and they are entitled to this g. WORK PRODUCT PRIVILEGE: i. Privilege that exists with attorneys, however, can be overridden with a sufficient showing of necessity ii. Problem: 12-7—J was the president of the largest union in NYC…during a difficult period, in which the Union threatened to strike, J met with several union representatives about the strategy regarding a potential strike…before a strike could occur, the employer sued the union in federal court, claiming that it had violated several federal labor laws…J met with the Union’s lawyer, E, who wrote down her thoughts about the situation including the strategies and tactics that were legally available…during pre-trial discovery, the employer sought disclosure of the meeting J had with his representatives and of E’s notes of her meeting with J 1. Clearly notes within work-product privilege 2. Any communication during meeting would be attorney-client privilege 3. Meeting J had with union reps = NOT meeting held for rendition of legal services, it was meeting for labor services therefore NO privilege PSYCHOTHERAPIST-PATIENT PRIVILEGE: a. Extends to psychiatrists, psychologists, and licensed clinical social workers who are administering psychotherapy = if for confidential communication during the course of diagnosis or treatment of the patient i. Trying to foster communication for quick diagnosis and treatment ii. Exception: 1. Future Crime, Future Fraud—Tarasoff (Cal.) = if client indicates that going to commit physical bodily harm to another = duty to go forward and report b. Problems:
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i. 12-8: A is charged with murder, he has been in therapy for 9 years to treat outbursts of anger…A raises an insanity defense at trial, can prosecution call A’s therapist to witness stand to testify to what A told her during therapy sessionsYES…if certain legal actions are taken, there is implicit waiver = if put sanity at issue in trial, waiver of privilege of communications over past 9 years because now material to case [can waive by making issue in law suit] ii. 12-9: D charged with series of rapes and prosecution attempts to discover what B told his psychiatrist prior to the date the charges were filed 1. Conversations between D and his psychiatrist are privileged 2. Would the conversations be privileged if the secretary of one of the psychotherapists was privy to the conversationsTEST: If necessary to rendition of services = privileged [difficult to see how secretary would be necessary with all the different mechanical devices available] iii. 12-10: P, the D, objects to statements made to his physician claiming he believed Dr. S was a psychotherapist…at sidebar, P’s attorney makes proffer: Dr. has been P’s podiatrist for years and he was doing bunion surgery, D argues that they discussed books within realm of psychologyfact that subject discussed happened to deal with psychology = does NOT turn bunion doctor into psychotherapist PHYSICIAN-PATIENT PRIVILEGE: a. Limited: recognize privilege that exists between doctor and patient… i. Exceptions: 1. Implicitly waived when file a suit that injury/illness is material 2. Gun shot wounds = NO privilege 3. Dangerous communicable diseases = NO privilege ii. NOT federally recognized, but exists in majority of states iii. E.g.—if suing for illness/injury suffered = any statements that might have been privileged, are implicitly waived at the filing of the action b. Problems: i. 12-11: Booth woke up physician claiming he was shot and doctor examined wound and treated him…Booth then hurried awayDoctor-patient privilege does NOT usually apply when patient is seeing doctor for purpose of treatment or diagnosis of gun-shot wounds ii. 12-12: Booth’s brother helped him to doctor’s office and assisted during the treatment, can he be required to testify about what he saw and heard in the officeif Booth’s brother was necessary for treatment = privileged…here, presence would prevent privilege from being recognized [family member just bringing in to doctor to facilitate treatment is NOT necessary to treatment]