Evidence-Testimonial Privileges

  1. Choice of Law
    Diversity courts will defer to state law WRT privileges.
  2. Recognized Privileges
    • (1) attorney-client;
    • (2) husband-wife;
    • (3) clergy-penitent;
    • (4) psychotherapist-patient;

    (5) doctor-patient (Majority but not federal rule. Apply unless MBE specifically states you are in federal court);

    • (6) social worker-client;
    • (7) reporter-source.
  3. General Structure
    Most privileges have four general elements:

    • 1. Only applicable to communications, not:
    • --the underlying information;
    • --pre-existing documents;
    • --physical evidence.

    2. Only between members of a status relationship:

    3. Only when intended to be confidential;

    4. Sometimes only when made for a specific purpose.
  4. General Structure
    Waiver & Exceptions
    • Only the privilege-holder may
    • waive a privilege.
    • Subject Matter Waiver

    A waiver as to some communications will waive privilege as to other communications if:

    (a) the partial disclosure is intentional; and

    (b) the disclosed and undisclosed communications concern the same subject matter; and

    (c) fairness requires that the disclosed and undisclosed communications be considered together.

    Inadvertent Waiver

    An inadvertent disclosure will not waive the privilege, so long as the privilege-holder:

    (a) took reasonable steps to prevent the disclosure; and

    • (b) took reasonable steps to rectify the error.
    • (pro forma notice at bottom of law firm emails)

    Exceptions to Privilege

    • Future Crime or Fraud
    • (client communication asks for help concealing bribes)

    • Holder puts the content in issue
    • (D in tax fraud case claims attorney told her to do it; P in personal injury suit puts her physical condition in issue.)

    • Dispute between the holder and the professional
    • (fee disputes; malpractice suits)
  5. Attorney-Client Privileges

    1. Confidential Communications;

    2. Status: Attorney and Client;

    3. Purpose: Obtaining legal advice.


    • Attorney:
    • --members of the bar;
    • --someone client reasonably believes is a member of the bar;
    • --representatives of the attorney
    • (any agent reasonably necessary to facilitate provision of legal services—office staff; investigators; translators; etc)

    • Client
    • --actual client
    • --potential client
    • --representatives of client
    • (agent reasonable necessary to facilitate provision of legal services—corporate reps)

    • Confidential
    • Client must intend confidentiality, so it is lacking when:
    • --client knows a third party is listening;
    • --client asks attorney to disclose to a third party.
    • Joint Client Rule
    • In a common representation, the communications with counsel are privileged as to third parties.
  6. Doctor-Patient Privilege

    1. Confidential Communications and Information;

    2. Status: Doctor and Patient;

    3. Purpose: Medical treatment.

    • “Doctor” Defined
    • Doctors;
    • Therapists;
    • Nurses;
    • PAs;
    • Dentists;
    • Psychotherapists;
    • Podiatrists;
    • Chiropractors.

    • Scope
    • Includes information acquired, not just communications (test results; doc’s observations about patient during exam).

    • MBE vs. Federal Rule
    • --Unless specifically told you’re in federal court, apply doctor patient.
    • --If in federal court, apply psychotherapist-patient.

    • Subject Matter Waiver
    • Only applies where D AFFIRMATIVELY puts medical condition at issue. Merely defending is not enough.
  7. Marital Privileges
    Marital Communication Privilege

    Spousal Immunity (Spousal Testimony Privilege)


    Marital Communications—confidential statements made while married are privileged.

    Spousal Immunity—spouse cannot be forced to testify against current criminal D spouse.
  8. Marital Privileges
    Marital Communication Privilege
    In any case, the P cannot force a spouse to testify about a confidential communication made while the spouses were married unless both spouses agree.


    1. Confidential Communications;

    • 2. Status: Married Spouses (at time of statement);
    • 3. Purpose: Any.

    Jointly Held

    Either spouse may invoke the privilege, so it may only be waived by both spouses.
  9. Marital Privileges
    Spousal Immunity (Spousal Testimony Privileges)
    In a criminal case, the P cannot compel the D’s spouse to testify against the D.

    Not recognized in NY.


    1. Criminal case;

    2. Testimony against a defendant-spouse;

    3. W and D are currently married;

    4. May be waived by the witness spouse.
  10. Marital Privileges
    Communications or acts in furtherance of future crime or fraud. (joint criminal activity)

    Acts that are destructive of the family unit (spousal or child abuse).
Card Set
Evidence-Testimonial Privileges
Evidence-Testimonial Privileges