Exam 8: Privileges

Not all of the confidential communications between attorney and client are protected. Which of the following is not protected?

In the case of State v. Bergmann, the court considered the application of the doctor-patient privilege when a technician had drawn and analyzed the defendant's blood for medical reasons. In the discussion, the court stated that:

In McAfee v. State, the defendant was accused of murdering his wife and then speaking on the phone with a man who was an attorney for the defendant with respect to civil matters. The attorney was concerned that the defendant might take his own life and counseled him in ways that would likely prevent suicide. The attorney admitted that he never represented the defendant in any criminal matter. The trial court ruled that there was no attorney-client privilege concerning the discussions that the attorney had with the defendant during the course of the evening that he was arrested for murder of his wife. Why did the reviewing court think that the trial court ruled properly in rejecting the existence of an attorney-client privilege?

When the defendant in McAfee v. State asserted that an attorney-client relationship existed with his attorney and where the two had discussed matters involving his threat to kill himself after acknowledging that he had killed his wife, the court ruled that:

Is the husband-wife privilege the same now as it was 50 years ago? If not, discuss its development. What four tests are applied in claiming the privilege? Does the privilege extend to homosexuals in "spousal relationships"? What state(s) no longer recognize the marital confidential privilege?

Who has the legal power to assert the attorney-client privilege? Are there any exceptions? Explain.

In Trammel v. United States, the defendant was convicted of importing heroin and conspiring to import heroin. He appealed on the ground that the trial court committed reversible error by allowing his wife to testify against him. What was the decision of the reviewing court in regard to the wife being permitted to testify adversely in a criminal case?

The privilege against disclosure of information confidentially revealed to an attorney:

Briefly state the attorney-client privilege, and give the rationale for the privilege.

In a state that did not recognize the concept of common law marriage, a man and woman had lived together for 10 years and they had three children together. While at work one day, the man engaged in an altercation with a co-worker that resulted in a criminal charge of assault. The prosecution became aware that the man had discussed the offense and his criminal difficulties with the woman with whom he lived. The prosecution planned to call the woman to testify against the man with respect to what he told her about the alleged crime. Under these circumstances:

A privilege that prohibits evidence of some communication from being disclosed in open court:

In St. Clair v. Commonwealth of Kentucky, the defendant contended that several statements in which defendant Mr. St. Clair admitted committing crimes to his spouse were done in confidence and in reliance upon the marital relationship and that his spouse should not have testified against him concerning those statements. In one telephone conversation between the defendant and his spouse, where no one overheard their conversation, the defendant mentioned some activities that he had performed, which would help convict him of some of the charged crimes if revealed in a court of law. Under the marital confidential communication privilege, the Supreme Court of Kentucky held that the trial court:

What is meant by the term shield law, as used in considering the news media-informant privilege? What is the intent behind shield laws? Under what conditions must the privilege give way to countervailing interests?

The attorney-client privilege covers confidential communications that occur between the attorney and the client:

Does the testimonial spousal privilege extend to statements made during marriage if the trial takes place after a divorce? Explain. Does the same rule apply if the parties are separated but not divorced?

Identify the exceptions to the attorney-client privilege, and give the reasons for each exception. What is meant by the crime-fraud exception? Discuss the two-point test that governs this exception. Does the privilege survive the death of the client?

An exception to the marital confidential communication privilege and the marital testimonial privilege is:

Does the clergy member or the penitent have the right to claim or waive the privilege relating to communications to clergy? Is a clergy person an independent holder of this privilege? Explain.

In St. Clair v. Commonwealth, the defendant spoke with his wife at various times on the telephone, during a time in which he was on the run, committing new murders and other crimes. The reviewing court rejected the government's argument that they were involved in a criminal conspiracy that was ongoing. Had there been an ongoing criminal conspiracy between the husband and wife, arguably, there would have been no privilege between the two. Why did the court hold that some of the discussions between the two were considered privileged under the husband-wife confidential communication privilege?

Is the rule that a person has a privilege to refuse to disclose confidential communications made to a clergy member a common law rule or a statutory rule? How does this affect the practical application of the rule?