Deck 8: Privileges

Question 1

When considering privileged communications, there are two rules. What are they? What is the rationale for the courts' reluctance to expand the privilege?

Answer 1

The two rules for privileged communications are the attorney-client privilege and the doctor-patient privilege. The attorney-client privilege protects communications between a client and their attorney from being disclosed in court without the client's consent. The doctor-patient privilege protects confidential communications between a patient and their healthcare provider.

The rationale for the courts' reluctance to expand the privilege is based on the need to balance the interests of privacy and confidentiality with the interests of justice and the truth-seeking process. Courts are hesitant to expand the privilege because doing so could potentially hinder the ability to uncover important evidence in legal proceedings. Additionally, expanding the privilege could create opportunities for abuse or manipulation of the legal system. Therefore, the courts carefully consider the potential impact on the administration of justice before expanding the scope of privileged communications.

Question 2

What is the rationale for the testimonial privilege that declares some evidence, although relevant, to be inadmissible in criminal cases?

Answer 2

The rationale for the testimonial privilege that declares some evidence to be inadmissible in criminal cases is to protect the privacy and confidentiality of certain relationships, such as those between spouses, doctors and patients, attorneys and clients, and clergy and penitents. This privilege is based on the belief that in order for these relationships to function effectively, individuals must be able to communicate openly and honestly without fear that their conversations will be used against them in a legal proceeding. By protecting these communications from being used as evidence in court, the testimonial privilege aims to encourage trust and candor within these important relationships. Additionally, it serves to uphold the ethical and professional responsibilities of individuals in these roles, such as attorneys and doctors, by allowing them to maintain the confidentiality of their clients and patients. Overall, the testimonial privilege is intended to balance the need for relevant evidence in criminal cases with the need to protect the privacy and integrity of certain relationships.

Question 3

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?

Answer 3

The husband-wife privilege, also known as spousal privilege, has undergone significant changes in the past 50 years. Previously, the privilege was based on the legal concept of "marital unity," which essentially treated the husband and wife as one legal entity, with the husband being the dominant party. This meant that the privilege often favored the husband and could be used to prevent the wife from testifying against him.

However, over time, the legal understanding of marriage and spousal privilege has evolved. Today, the privilege is based on the idea of protecting the confidentiality of communications between spouses in order to promote marital harmony and trust. This means that either spouse can claim the privilege, and it is no longer tied to the concept of marital unity.

There are four tests that are typically applied in claiming the spousal privilege:
1. The communication must have been made in confidence
2. The communication must have been made during a valid marriage
3. The communication must be protected from disclosure by the privilege holder
4. The privilege must not have been waived

As for whether the privilege extends to homosexuals in "spousal relationships," the answer varies depending on the jurisdiction. In some states and countries, the privilege has been extended to same-sex couples who are legally married or in a recognized domestic partnership or civil union. However, in other places, the privilege may still be limited to opposite-sex couples.

In terms of states that no longer recognize the marital confidential privilege, it is important to note that the laws regarding spousal privilege can vary widely from state to state. While most states still recognize some form of spousal privilege, there are a few that have either significantly limited or completely abolished the privilege. It is important to consult the specific laws of the state in question to determine the current status of the spousal privilege.

Question 4

State and give examples of three exceptions to the husband-wife privilege.

Question 5

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?

Question 6

Does the marital confidential communication spousal privilege exclude confidential statements made during marriage if the trial takes place after a divorce? Explain. Are both parties to the marriage considered holders of this privilege? Does the same rule apply if the parties are separated but not divorced?

Question 7

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

Question 8

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?

Question 9

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

Question 10

What is the physician-patient privilege? What is its primary purpose? What are the exceptions? Does the privilege apply to communications with a psychologist? Other relationships? Explain.

Question 11

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?

Question 12

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.

Question 13

Under what conditions does the state have the right to withhold from disclosure the identity of persons who furnish information to the police concerning the commission of a crime? Give some examples.

Question 14

What is the policy basis of the rule that certain state secrets are privileged?

Question 15

What is the present status of the law relating to the news media-informant privilege?

Question 16

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?

Question 17

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?

Question 18

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?

Question 19

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?

Question 20

In State v. Bergmann, the defendant was arrested for drunken driving and taken to a hospital where blood was drawn. The results of the blood test were suppressed because of the unconstitutional way the blood was collected. The attorney sent a note to the prosecutor's office that included the medical records to reference the blood-alcohol content of the driver, Bergmann. Over the defendant's objection, the blood-alcohol evidence was introduced against him at his trial for driving under the influence. Why did the trial court rule that there was no doctor-patient privilege involved here, and that the blood evidence was properly admitted against Bergmann?

Question 21

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

A) recognizes that confidential relationships often involve communication that is untrustworthy.
B) has the effect of keeping from introduction to court highly believable and trustworthy evidence.
C) is based on the hearsay rule of exclusion of third-party evidence.
D) always allows criminals to talk to newspaper reporters without fear of disclosure.

Question 22

Some testimony, even though relevant, is not admitted at trial because of what is known as the testimonial privilege rule. The rationale for this rule is that:

A) such evidence is not reliable.
B) this avoids undue prejudice to the accused.
C) constitutional provisions prohibit the use of all communications to and from a client's attorney.
D) a public policy determination has been made that certain relationships should be protected by excluding some testimony that relates to that relationship.

Question 23

Traditionally, the courts in most states recognized and protected confidential communications that occurred in the following confidential relationships, except:

A) marital relationships.
B) accountant-client relationship.
C) clergy-penitent relationship.
D) attorney-client relationship.

Question 24

The marital testimonial privilege has developed over a period of many years. One modern rule is that:

A) a spouse may not testify for or against the other spouse in a criminal proceeding in federal court.
B) the protection does not continue after divorce as to statements made prior to marriage.
C) the privilege does not exist when the parties are separated but not divorced.
D) information privately disclosed between spouses in the confidence of the marital relationship is protected.

Question 25

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

A) a spouse may testify if he or she has been injured by the defendant spouse.
B) one spouse may testify about the communications, if the communications were made in the presence of third parties.
C) a third person may testify about communications between the spouses if the communications are overheard by the third person through the carelessness of the spouses.
D) All of the responses above constitute exceptions to the husband-wife confidential communication privilege.

Question 26

In considering the duration of the marital testimonial privilege, the courts have generally agreed that:

A) utterances made in confidence subsequent to the divorce of the parties are nevertheless protected by the privilege.
B) when the spouses are divorced at the time of the trial, the purposes of the marital testimonial privilege no longer apply.
C) when the courts consider the marital testimonial privilege and its duration, it makes little difference whether the parties are divorced or separated.
D) if the previous spouses continue to live with each other after the divorce, the marital testimonial privilege continues to exist as if they were still married.

Question 27

The case of Trammel v. United States, noted in the text, involved a husband who had been indicted on federal drug charges while his wife had been named in the indictment as an unindicted conspirator and had been persuaded to assist in the prosecution of her husband. According to the Supreme Court of the United States, the trial court:

A) improperly permitted Mrs. Trammel to offer evidence against her husband because it violated the marital testimonial privilege because they were still married to each other at the time of the trial.
B) properly allowed Mrs. Trammel to testify against her husband concerning non-confidential conversations the couple had between them and concerning other conversations where third parties were present because the Court held that only the witness-spouse has a privilege not to testify against the other.
C) properly allowed Mrs. Trammel's testimony against her husband because, as one partner in the marriage, she may waive any marital privilege if she so choses.
D) properly allowed Mrs. Trammel to give adverse testimony against her husband because the prosecution had a high level of need for the evidence, which exceeded Mr. Trammel's need to keep the evidence from admission.

Question 28

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) the woman cannot be compelled to testify because she may assert a marital confidential communication privilege. Their relationship, and the fact that they had children together, appears to be the type of relationship that the marital confidential communication privilege should recognize and support.
B) the woman may be required to testify against the male defendant even though the conversation between the two of them was intended to remain confidential.
C) the woman cannot be compelled to testify against her live-in companion because they have a relationship that appears to be similar to a marriage, and spouses do not have to testify against each other, as a general rule.
D) the woman should be able to successfully assert either marital privilege to avoid having to testify against her live-in boyfriend.

Question 29

The principle of the attorney-client privilege:

A) is of recent origin and applies if a state statute so indicates.
B) is grounded in the common law and is of ancient origin.
C) has been incorporated into the statutory law of most states to protect attorneys.
D) applies even if the attorney is not authorized by law to practice.

Question 30

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

A) under circumstances where the client has already paid the attorney the fee that was due for the consultation.
B) only when there is never any third-party present who could overhear the conversation.
C) even if the client is seeking legal advice on how to avoid legal liability for crimes that may be committed in the future.
D) only when the client is seeking genuine legal advice from the attorney for current or past legal difficulties.

Question 31

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

A) may be claimed by the attorney or the client at the option of either.
B) cannot be waived by either the attorney or the client.
C) is personal to the client and may be asserted only by him or her, unless the attorney asserts it for the benefit of the client.
D) is not subject to any statutory or judicial exceptions or limitations.

Question 32

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

A) the attorney gives advice in the furtherance of a crime.
B) the confidential communication to the attorney immediately follows the crime.
C) the communication relates to disclosure of the identity of the client when such identification amounts to a disclosure of the confidential communication.
D) communications relating to the specific nature of the service provided.

Question 33

Communications between a physician and his or her patient:

A) were protected communications at common law.
B) are recognized by statute in all states as privileged communications.
C) are recognized as privileged in most states if specific prerequisites are met.
D) are protected communications that are so important that when a statute exists the privilege is absolute.

Question 34

The physician-patient privilege:

A) is recognized only when the communication is made in confidence.
B) may be invoked only by the physician, not the patient.
C) applies in all cases even if a statute requires a physician to report gunshot wounds.
D) may be claimed by the physician in malpractice cases even if the patient agrees to testify against the physician.

Question 35

The evidence rule preventing disclosure of communications to clergy (priests, rabbis, imams, preachers):

A) applies only if the communication is confidential and only if made to a clergy member in a professional capacity.
B) applied at common law but no longer applies today.
C) may be waived by either the clergy member or the penitent.
D) applies even though the communications were not made in confidence.

Question 36

The law enforcement-confidential informant privilege:

A) has been interpreted to mean that the state is not required to disclose the name of the informant who gave information upon which probable cause for the search warrant was based.
B) provides that the state does not have to disclose informants even if the identity is essential to the defense.
C) is a privilege of the informant and may not be waived by the government.
D) cannot usually be claimed because public policy is not to protect the informant from reprisals.

Question 37

The rule relating to the news media-informant privilege is that:

A) there is a canon of journalistic ethics forbidding the disclosure of sources of information that must be recognized at law.
B) this is a common law privilege and is claimed in the same manner as the husband-wife privilege.
C) in the absence of a statute, communications to a newspaper editor or to a reporter are not privileged.
D) the privilege is more important than the trial court's interest in enforcing its order and a defendant's right to a fair trial.

Question 38

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:

A) should have recognized that under the circumstances the marital confidential communication privilege prevented the trial court from allowing Mrs. St. Clair to testify against defendant Mr. St. Clair where the defendant made an objection to his wife's testimony.
B) should have allowed defendant Mr. St. Clair to keep Mrs. St. Clair from testifying against him because under the modern rules both spouses are considered to be holders of the marital testimonial privilege, and either one may assert the privilege to prevent adverse spousal testimony.
C) properly allowed the wife of the defendant to testify against him because, under the modern interpretations of the marital testimonial privilege, if one spouse desires to testify against the other, there is little substance left in the marriage to protect and the testimony should be permitted.
D) properly allowed the spouse to testify against her husband, defendant Mr. St. Clair, because the phone conversation concerned some criminal activities that had been performed by the defendant prior to talking with his spouse on the telephone.

Question 39

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:

A) the evidence of his blood-alcohol content should not have been made against him because the doctor-patient privilege is virtually unbreachable in a criminal case.
B) the evidence of his blood-alcohol content was properly admitted because he had submitted a medical report to the prosecution to substantiate a different medical condition that happened to contain his blood-alcohol content record. The defendant had waived the doctor-patient privilege under the circumstances.
C) his blood-alcohol content should have been revealed to no one, not even the defendant, because of the doctor-patient privilege held by the doctor.
D) there is no privilege of a doctor-patient nature in any sort of criminal case.

Question 40

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:

A) an attorney-client privilege existed because the attorney, Mr. Storer, represented the defendant in civil matters and that should be sufficient to cover a criminal matter that was somewhat discussed with police and emergency responders.
B) an attorney-client relationship existed between McAfee and attorney Storer because Storer was actually giving legal advice to McAfee on how to avoid being charged with the murder of his wife.
C) no attorney-client relationship existed between McAfee and attorney Storer involving criminal representation because the two men were long-time friends and that their phone calls on the evening when the killing took place were more of the nature of old friends discussing matters rather than efforts at obtaining legal advice during a confidential conversation.
D) no attorney-client relationship covering criminal matters existed because the two men were discussing how to get away with murder, and public policy prohibits an attorney from helping a client escape justice.