Deck 4: Witnesses-Competency and Privileged Communications

Question 1

Because of the policy that maintaining privileged communications,such as secrets between two friends,outweighs the benefit that society would derive from their disclosure,the court favors privileged relationships and is willing to expand its use.

Answer 1

False

Question 2

If a marriage is dissolved by divorce,annulment,or death,then the marital communications privilege no longer applies.

Answer 2

False

Question 3

In many jurisdictions,when one partner of a marriage threatens to commit,or commits a crime,or fraud,upon the other,the victim spouse can be compelled to testify irrespective of his or her wishes.

Answer 3

True

Question 4

If a husband and wife speak in confidence but in public and believe they cannot be heard by a third party,but speak loudly such that if there were a third party present the conversation could be overheard,the marital communications privilege does not apply if a third party overhears the conversation.

Question 5

An individual must possess certain moral qualifications to testify as a witness.

Question 6

If the question presented regarding the qualification of a witness to testify is whether the witness has personal knowledge of the facts related to the case,the jury,and not the judge,will usually listen to the testimony and decide for themselves whether they believe the witness has personal knowledge.

Question 7

In addition to being able to demonstrate personal knowledge of facts pertinent to the case on trial,and to understand the obligation to tell the truth,an individual must demonstrate a level of mental fitness in order to be a witness.

Question 8

The common law rule that requires a witness to be competent-a standard assessed on several grounds,including tender age,old age,infirmity of mind,lack of religious belief,and other grounds-is still the standard today.

Question 9

Because the Confrontation Clause requires a witness to appear personally to face the defendant,a witness's written statement in a criminal case is never admissible.

Question 10

A lack of mental capacity by a witness may affect the weight of the testimony in the eyes of the jury,but will not prevent the person from becoming a witness.

Question 11

The court is likely to expand a husband and wife privilege relationship to encompass other close blood relatives.

Question 12

If two or more persons hold a privilege,waiver by one holder automatically waives the privilege for all persons holding the privilege.

Question 13

An individual who is mentally retarded,senile,or otherwise declared mentally unbalanced,may become a witness because they may still have lucid moments.

Question 14

If a client approaches a friend who has not yet completed law school for legal advice,any information relating to a crime is protected under the attorney-client privilege because the friend is treated as if he is an attorney.

Question 15

If a marriage was a sham,then the husband-wife privilege will not apply.

Question 16

A privilege can only apply at most to two people in a privileged relationship.

Question 17

If a spouse obtains information other than by means of an exchange of confidential communications,the spouse can be compelled to testify against the other spouse once the marriage is dissolved.

Question 18

If communications between a married couple,which was intended to be confidential,and does not involve a crime upon one spouse by the other,the marital communications privilege does not apply,if the communication is in the presence of a third person and the married couple can anticipate that the third party can hear the communication.

Question 19

In a case where a child is a victim and a witness,the Supreme Court of the United States has held that the defendant's right to confrontation is satisfied as long as the defendant can observe the witness while testifying.

Question 20

A jury will determine whether a very young child has the ability to understand the obligation to tell the truth.

Question 21

Which of the following is generally not a confidential relationship which could give rise to a privilege?

A)Husband and wife.
B)Parent and child.
C)Accountant and client.
D)Confidential informant and law enforcement officer.

Question 22

The burden of proving whether a child is qualified to testify rests upon

A)the side contesting the child as a witness.
B)the side producing the child as a witness.
C)the judge.
D)the child.

Question 23

In some jurisdictions,if the clergy-communicant privilege is waived by the communicant,the clergy still has the right to refuse to disclose a communicant's communications.

Question 24

If an attorney is currently representing a client regarding a drug charge,the attorney-client privilege still applies when a client consults an attorney regarding the commission of any future drug crimes.

Question 25

A judge may testify as a witness if

A)he or she is not presiding at the trial.
B)he or she is presiding at the trial.
C)he or she is not presiding over any other trial.
D)a judge is never competent to testify as a witness.

Question 26

If a client confesses to a crime,an attorney may refuse to take the case if he or she cannot defend a guilty client with a clear conscience.

Question 27

Which amendment of the United States Constitution requires a witness to appear personally to face the defendant?

A)4^th Amendment.
B)5^th Amendment.
C)5^th and 14^th Amendments.
D)6^th Amendment.

Question 28

Most federal courts hold that a qualified news reporter's privilege exists under federal law.

Question 29

There is no parent-child privilege in federal law.

Question 30

Privileges are recognized in all proceedings,even those in which the rules of evidence do not apply.

Question 31

Under the FRE who is declared incompetent to testify?

A)Judges and jurors sitting in the case at trial.
B)Anyone having an interest in the outcome of the case.
C)Anyone lacking religious belief.
D)Anyone having been convicted of a crime.

Question 32

Which of the following is a characteristic which makes up a witness's capacity?

A)The witness possesses the ability to perceive.
B)The witness has a desirable personal background.
C)The witness has no criminal background.
D)The witness has no interest in the outcome of the case.

Question 33

The moment a client consults with an attorney on legal matters the attorney-client relationship and privilege is established,even if the client does not hire the attorney.

Question 34

An officer must reveal the identity of an informer if a trial judge determines such disclosure is necessary to preserve the defendant's right to a fair trial.

Question 35

Where a newsman personally observes a criminal conduct by persons,the newsman is the source of the news or information,and the news reporter-source privilege does not apply.

Question 36

The laws governing the privileges of witnesses in federal trials continue to develop.

Question 37

Federal law recognizes the accountant-client privilege.

Question 38

After the jury reaches a verdict,a juror may testify about

A)whether a verdict was reached fairly.
B)whether another juror properly assessed the evidence presented at trial.
C)whether there was outside influence having some bearing upon any juror's decision.
D)whether a juror's emotions clouded his or her judgment.

Question 39

An accountant-client privilege does not exist in federal law.

Question 40

Under the FRE which of the following is generally not a requirement for a person to be able to testify?

A)That the individual have personal knowledge of facts pertinent to the case.
B)That the individual have the ability to understand the obligation to tell the truth.
C)That the individual willingly take an oath (or affirm)that he or she will tell the truth.
D)That the individual possess mental qualifications in order to testify as a witness.

Question 41

What are the three basic characteristics which make up witness capacity?

Question 42

What is a privileged communication and what is the rationale for the existence of confidential relationships?

Question 43

The attorney-client privilege can most likely be invoked in which of the following situations?

A)Where a person takes on the role of an attorney although he has an inactive license.
B)Where a person takes on the role of an attorney although he has not paid his dues.
C)Where a person takes on the role of an attorney but never passes the bar.
D)Where a person takes on the role of an attorney,although not actively licensed to practice law in that state,but the client believes that the individual is acting as his or her attorney.

Question 44

Which of the following is not a situation in which the psychotherapist-patient privilege is excused?

A)When an accused raises a defense of insanity or mental distress,thus putting the accused's mental state at issue.
B)When the accused's disclosure entails a confession.
C)When the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional state as to be dangerous to himself or herself.
D)When the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional state as to be dangerous to the person or property of another.

Question 45

What is considered sufficient to prove that a child knows the necessity for telling the truth?

Question 46

In a jurisdiction that recognizes the husband-wife privilege,the prohibition relates to all matters of information obtained during all the following except:

A)Prior to marriage.
B)During a marriage.
C)During a separation.
D)After a divorce.

Question 47

If there are questions as to whether a privilege should be recognized,how will the court proceed?

Question 48

What is the difference between an oath and an affirmation?

Question 49

Which privilege is not recognized under federal common law?

A)Attorney-Client
B)Physician-Patient
C)Husband-Wife
D)Psychotherapist-Patient

Question 50

Which of the following is false regarding a news reporter privilege?

A)A reporter's claim of privilege will be weighed by the trial judge to determine whether the information sought is vital to the prosecution or defense of a criminal case.
B)The First Amendment guarantee of freedom of the press automatically grants a news reporter-source privilege.
C)A news reporter protection extends to a reporter,publisher,and editor.
D)The privilege covers information discovered by the reporter,including the sources and background data.

Question 51

Which of the following persons is not included under the attorney-client privilege when a client communicates with them?

A)An attorney's secretary.
B)A law clerk at an attorney's office.
C)A paralegal.
D)Another client at the law office.

Question 52

What is a voir dire of the witness?

Question 53

What are four fundamental conditions that must be established before a person is exempted from testifying in a judicial proceeding based on a claim of privilege?

Question 54

Which of the following will destroy a marital privilege where communication is made in confidence?

A)Where a husband and wife speak privately in their bedroom and there is an unsuspecting third party outside the window.
B)Where a husband and wife speak privately in their bedroom and a third party gains access to their conversation by electronic means.
C)Where a husband and wife speak loudly but privately in their bedroom and a guest in the next room overhears the conversation.
D)Where communication is intercepted due to the betrayal or connivance of one spouse.

Question 55

Which of the following may not be protected under the attorney-client privilege?

A)A client who orally confesses to a crime.
B)A client who deposits a gun used in a crime with his attorney for safe keeping.
C)A client who displays scars or marks which connect him or her to a crime.
D)A client who displays to an attorney a gun used in a crime.

Question 56

Which of the following is false with regards to the clergy-communicant privilege?

A)A privilege protecting confidential communications between clergy and communicants has been adopted in all 50 states.
B)A clergy-communicant privilege is recognized as part of the federal common law.
C)The member of the clergy and the communicant should belong to the same faith for the clergy-communicant privilege to apply.
D)In order for the privilege to apply the communicant must be one who seeks out the clergy in a religious capacity for the purpose of securing spiritual advice.

Question 57

Explain what the spousal incapacity privilege is and the rationale behind the rule.

Question 58

A holder of a privilege may waive the privilege by all of the following EXCEPT:

A)By disclosing a significant part of the communications.
B)Consenting to disclosure of the communications.
C)Where two or more persons hold a privilege and one of the persons waives the privilege.
D)By failing to claim a privilege when a holder is able to do so.

Question 59

Which of the following is false regarding privileged relationships?

A)The existence of a privileged relationship automatically bars a person from being a witness.
B)The existence of a privileged relationship does not necessarily bar a person from being a witness.
C)The existence of a privileged relationship merely restricts what testimony,if any,may be given by a witness.
D)A witness may testify to the privileged communication if the privilege holder waives the privilege.

Question 60

To which of the following groups does the psychotherapist-patient privilege not extend?

A)Physicians
B)Psychiatrists
C)Psychologists
D)Social workers

Question 61

What is the marital communications privilege and what is required for the privilege to apply?

Question 62

What are two possible justifications for the attorney-client privilege?

Question 63

Briefly describe the proposed ABA Model Parent-Child Privilege Statute.

Question 64

Explain why the psychotherapist-patient privilege is supported by stronger policy justifications than the doctor-patient privilege.

Question 65

What is the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA)and explain how it relates to the physician-patient privilege.