F. PRIVILEGE AGAINST SELF-INCRIMINATION
1. Holders
The privilege applies not only to criminal defendants, but also to any other person who is asked to give testimony that may incriminate him.
For example, witnesses in grand jury proceedings, congressional investigations, other people’s criminal trials, a civil proceeding, pre-trial discovery proceedings (depositions), questioning by the police.
2. Requirements
a. It is asserted by an individual.
b. the communication sought is testimonial.
c. the communication is compulsory.
d. the communication might incriminate the witness.
Monday, February 7, 2011
Intro to the Federal Rules of Evidence - 21
E. HUSBAND-WIFE PRIVILEGE
1. Spousal Immunity
a. Rationale
To promote marital harmony: requiring one spouse to testify against the other tends to break up the marriage.
b. Privilege not to testify in criminal cases
i) Federal Courts – privileges belongs to witness-spouse
Trammel v. U.S., 445 U.S. 40 (1980)
ii) State courts – privilege belongs to party-spouse
c. Immunity may be asserted only During marriage
This immunity applies only if the parties are still married at the time of a trial, but applies to statements made before the marriage took place.
d. Exceptions
Crimes against the other spouse or the children of either.
2. Privilege for Confidential Marital Communication
a. Rationale
To promote marital harmony by encouraging the exchange of confidences between spouses.
a. Privilege not to testify in civil/criminal cases
b. both spouses as holders
c. privilege may be asserted after divorce
It applies even if the parties are no longer married by the time of the trial. But it covers only statements made during the marriage
d. Exceptions
Suits between spouses (e.g., a divorce suit), prosecution for crimes against other spouse/ the children of either, communications made for the purpose of planning or committing a crime.
1. Spousal Immunity
a. Rationale
To promote marital harmony: requiring one spouse to testify against the other tends to break up the marriage.
b. Privilege not to testify in criminal cases
i) Federal Courts – privileges belongs to witness-spouse
Trammel v. U.S., 445 U.S. 40 (1980)
ii) State courts – privilege belongs to party-spouse
c. Immunity may be asserted only During marriage
This immunity applies only if the parties are still married at the time of a trial, but applies to statements made before the marriage took place.
d. Exceptions
Crimes against the other spouse or the children of either.
2. Privilege for Confidential Marital Communication
a. Rationale
To promote marital harmony by encouraging the exchange of confidences between spouses.
a. Privilege not to testify in civil/criminal cases
b. both spouses as holders
c. privilege may be asserted after divorce
It applies even if the parties are no longer married by the time of the trial. But it covers only statements made during the marriage
d. Exceptions
Suits between spouses (e.g., a divorce suit), prosecution for crimes against other spouse/ the children of either, communications made for the purpose of planning or committing a crime.
Intro to the Federal Rules of Evidence - 20
D. ATTORNEY-CLIENT PRIVILEGE
A client has right not to disclose and the right to prevent his lawyer from disclosing any confidential communication between the two of them relating to the professional relationship.
1. Client as Holder
Only the client has the right to invoke and waiver the privilege. The attorney may, however claim the privilege on behalf of the client.
2. Duration of privilege outlives duration of attorney-client relationship.
In Swindler & Berlin v. United States, 524 U.S. 399 (1998), the court held that the federal attorney-client privilege survives the death of the client.
3. Non-applicability of privilege
a. Legal aid in advice in aid of future wrongdoing
b. Claimants through same deceased client
c. Dispute between attorney and client
4. Attorney’s work product protections
An attorney is protected from being required to disclose certain information that he obtains while preparing for a lawsuit.
a. Qualified protection
Documents prepared in anticipation of litigation may be discovered by the other side under certain circumstances under FRCP 26(b)(3).
b. Absolute immunity for mental impressions, conclusions. Etc.
Some materials are so much the product of the lawyer’s own thinking that they receive what is essentially an absolute work product immunity under FRCP 26(b)(3).
A client has right not to disclose and the right to prevent his lawyer from disclosing any confidential communication between the two of them relating to the professional relationship.
1. Client as Holder
Only the client has the right to invoke and waiver the privilege. The attorney may, however claim the privilege on behalf of the client.
2. Duration of privilege outlives duration of attorney-client relationship.
In Swindler & Berlin v. United States, 524 U.S. 399 (1998), the court held that the federal attorney-client privilege survives the death of the client.
3. Non-applicability of privilege
a. Legal aid in advice in aid of future wrongdoing
b. Claimants through same deceased client
c. Dispute between attorney and client
4. Attorney’s work product protections
An attorney is protected from being required to disclose certain information that he obtains while preparing for a lawsuit.
a. Qualified protection
Documents prepared in anticipation of litigation may be discovered by the other side under certain circumstances under FRCP 26(b)(3).
b. Absolute immunity for mental impressions, conclusions. Etc.
Some materials are so much the product of the lawyer’s own thinking that they receive what is essentially an absolute work product immunity under FRCP 26(b)(3).
Intro to the Federal Rules of Evidence - 19
B. GENERAL CONSIDERATIONS
1. Specific relationship
2. Holder
3. Confidentiality
4. Waiver
C. FRE 502 – LIMITATIONS ON WAIVER
1. Two major purposes
1) It resolves some longstanding disputes in the courts about the effect of certain disclosures of communications or information protected by the attorney-client privilege or as work product — specifically those disputes involving inadvertent disclosure and subject matter waiver.
2) It responds to the widespread complaint that litigation costs necessary to protect against waiver of attorney-client privilege or work product have become prohibitive due to the concern that any disclosure (however innocent or minimal) will operate as a subject matter waiver of all protected communications or information. This concern is especially troubling in cases involving electronic discovery.
(ACN)
2. Summary of each subsection
(a) waiver limited to the disclosed party
(b) no waiver if inadvertently disclosed & reasonable steps taken
(c) apply more protective law between state and federal law
(d) once protection order, forever protection order
(e) an agreement for the parties only, part of an order against every one.
(f) if protected against waiver in federal court, then protected in state court.
1. Specific relationship
2. Holder
3. Confidentiality
4. Waiver
C. FRE 502 – LIMITATIONS ON WAIVER
1. Two major purposes
1) It resolves some longstanding disputes in the courts about the effect of certain disclosures of communications or information protected by the attorney-client privilege or as work product — specifically those disputes involving inadvertent disclosure and subject matter waiver.
2) It responds to the widespread complaint that litigation costs necessary to protect against waiver of attorney-client privilege or work product have become prohibitive due to the concern that any disclosure (however innocent or minimal) will operate as a subject matter waiver of all protected communications or information. This concern is especially troubling in cases involving electronic discovery.
(ACN)
2. Summary of each subsection
(a) waiver limited to the disclosed party
(b) no waiver if inadvertently disclosed & reasonable steps taken
(c) apply more protective law between state and federal law
(d) once protection order, forever protection order
(e) an agreement for the parties only, part of an order against every one.
(f) if protected against waiver in federal court, then protected in state court.
Intro to the Federal Rules of Evidence - 18
III. PRIVILEGES (ART. V)
Around 1973, in the midst of the Watergate incident, the Rules drafted by the U.S. Supreme Court under the enabling act went to Congress. Nixon was claiming executive privilege. Acutely sensitive on the matter of legislative prerogative, Congress held hearings and prepared committee reports, scrutinized the Rules, and changed them substantially. The deletion of privilege rules was one of them.
Privileges differ from other rules of evidence. They are intended to promote some policy that is external to the goals of a trial. Most other evidence rules are designed to enhance the search for truth and thus for fact-finding process. Privileges hinder than goal by excluding relevant evidence.
A. GOVERNING LAWS (FRE 501)
1. Federal Law
The U.S. Constitution (5th Amend. Privilege against self-incrimination), Act of Congress, the FREs, federal common law : psychotherapist/social worker – patient (Jaffe v. Redmond, 518 U.S. 1 (1996)); attorney-client; spousal privilege.
2. Diversity cases
In diversity cases, the existence and scope of a privilege is decided by the law of the state whose substantive law is being followed.
Erie R. Co. v. Tompkins, 304 U.S. 64 (1938).
The states vary greatly on what privileges they recognize. All recognize the husband-wife and attorney-client privileges, most by statute. All recognize a privilege for certain government information. Nearly all recognize some kind of physician-patient and clergyman-penitent privileges. Three other privileges are recognized only in a minority of states: journalist-source, parent-child, and accountant-client.
Around 1973, in the midst of the Watergate incident, the Rules drafted by the U.S. Supreme Court under the enabling act went to Congress. Nixon was claiming executive privilege. Acutely sensitive on the matter of legislative prerogative, Congress held hearings and prepared committee reports, scrutinized the Rules, and changed them substantially. The deletion of privilege rules was one of them.
Privileges differ from other rules of evidence. They are intended to promote some policy that is external to the goals of a trial. Most other evidence rules are designed to enhance the search for truth and thus for fact-finding process. Privileges hinder than goal by excluding relevant evidence.
A. GOVERNING LAWS (FRE 501)
1. Federal Law
The U.S. Constitution (5th Amend. Privilege against self-incrimination), Act of Congress, the FREs, federal common law : psychotherapist/social worker – patient (Jaffe v. Redmond, 518 U.S. 1 (1996)); attorney-client; spousal privilege.
2. Diversity cases
In diversity cases, the existence and scope of a privilege is decided by the law of the state whose substantive law is being followed.
Erie R. Co. v. Tompkins, 304 U.S. 64 (1938).
The states vary greatly on what privileges they recognize. All recognize the husband-wife and attorney-client privileges, most by statute. All recognize a privilege for certain government information. Nearly all recognize some kind of physician-patient and clergyman-penitent privileges. Three other privileges are recognized only in a minority of states: journalist-source, parent-child, and accountant-client.
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