Rules of Evidence Chapter 6

The client must seek the professional legal services of an attorney and have the intention of establishing an attorney-client relationships

(1) Requirements of the Attorney-Client Privilege:

The presence of a third party when statements are made by a client to an attorney usually causes the privilege to be waived, since the third person's presence normally destroys the client's expectations of confidentiality

(2) Requirements of the Attorney-Client Privilege:

The necessary presence of the attorney's secretary, law clerk, or other employee during a conference in the attorney's office would not cause a court to hold that the communications were not privileged

(3) Requirements of the Attorney-Client Privilege:

True

(t/f) Courts will make the Journalist Privilege available to the Internet websites that purport to investigate stories and inform the public of the results

True

(t/f) Judicial notice of matters generally known within the community or state is probably the oldest application of the doctrine or judicial notice

True

(t/f) Many states have statutes regulating the attorney-client privilege; other states and the federal government use the principles of common law

False (all states and the federal government use the husband-wife privilege)

(t/f) Some states and the federal government use the husband-wife privilege

False (they do agree and held the privilege)

(t/f) The U.S. Supreme Court does not agree and held the privilege survived the death of the client

True

(t/f) The conditions and limits for the psychotherapist-patient privilege are ordinarily similar to those of physician-patient privilege

False (the privilege does not extend to the situations)

(t/f) The husband-wife privilege does extend to situations where the wife and the husband are committing a crime together

True

(t/f) The physician-patient privilege did not exist at common law, all 50 states have created this privilege by statute

1. Recognized reports 2. Learned treatises or dictionaries 3. Simple data printed in newspaper, such as dates and temperatures

A court may properly take judicial notice facts cited in:

Clergy-Penitent Privilege

About two-thirds of the states have statutes defining the _________________________, with a few other states recognizing the privilege by court decisions

Judicial Notice Doctrine

All states have statutes or court rules that authorize the use of a ________________________.

Should leaking be encouraged?

Answer on p. 159

p. 146

Areas where 5th Amendment Privilege Against Self-Incrimination does not apply

News Reporter Shield law

Common law did not generally recognize a journalist privilege, but most states have enacted __________________________ or have establishing protections for news reporters.

Attained the status of scientific law

Courts have long held that judicial notice may be taken of scientific theories that have been so established that they have _______________________________.

Spousal Testimonial Privilege and Marital Communication Privilege

Courts noted that in more recent years the marital privilege has been divided into two privileges:

p. 147

Examples where the 5th Amendment privilege against self-incrimination does apply

Private communications of persons receiving counseling

In the sexual assault counselor's privilege and privilege covering other counselors, many states have statutes that protect _______________________________.

Only one federal district court and one state appellate court have recognized some type fo parent-child privilege in the absence of a statute creating the privilege (Example: p. 161)

Is there a parent-child privilege?

The basis for increased prison sentence

It had been held that courts should not take judicial notice of facts that are an element of the crime charged or serve as __________________________________.

1. Where an attorney represented both a corporation and the president of the corporation at various times 2. Discloses past wrongdoing to the attorney or when a client asks an attorney if contemplated future actions would be legal 3. The privilege does not protect disclosures about present or future wrongdoing that the client intends 4. That an attorney has a legal and ethical obligation to deliver physical evidence of a crime to the police 5. Privilege does not protect the name and identify of a client or the amount of the attorney fee

Limits of the Attorney-Client Privilege:

Victim advocate

Other states have similar privilege to the Sexual Assault Counselor's Privilege called _____________________ statutes.

1. Both the wife and the husband were involved in growing marajuana 2. Involved in trafficking cocaine 3. When husband ran off with his secretary, the angry wife provided the Internal Revenue Service with the information of criminal tax evasion

Partner-in-crime exception is the joint-criminal-participation exception to the husband-wife privilege follow:

Production of documents covering the history of persons protected by the privilege

The Supreme Court of Pennsylvania held that the Pennsylvania held that the Pennsylvania sexual assault privilege statute provided an absolute privilege protecting not only testimony but also the ________________________________________.

United States v. Glass

The court held that a psychotherapist could testify in a criminal case about otherwise privileged communications only if no other alternative to disclosure of threats made by the patient against a third party existed to avert harm to that person

The fact is well-known to the trial

The court may not take judicial notice of a fact solely because ___________________________________.

Common law

The court noted that the ____________________ has long provided that the privilege survives death of the client

Survival would encourage a client to fully communicate with the attorney

The court thought the knowledge of the privilege's ____________________________, which in the end is the main reason for existence of the privilege

1. Establishing the meaning of words, phrases, or abbreviations commonly used 2. Establishing the sex of a witness or defendant 3. Establishing the location of well-known sections of a city or well-known streets and buildings 4. Establishing well-known habits

The following are common examples of the use of judicial notice to prove matters of general knowledge:

Common law has always recognized the informant's privilege as an essential aid to law enforcement

The privilege concerning the identity of informants:

To encourage full and frank communication between attorneys and their clients and thereby promote the broader public interests in the observance of law and administration

The purpose of the Attorney-Client privilege

Judicial Notice

To avoid unnecessary delays, the courts developed the commonsense doctrine of ______________________________.

When a life is at risk or in a situation that concerns an emergency within the community such as a terrorist attack

What are the exceptions for the News Reporter shield laws?

The informant's privilege is not an absolute privilege and must give way when there is a compelling need to protect the rights of the accused

What are the limits to the informant's privilege?

1. People who serve on a grand jury cannot disclose proceedings and deliberations by that body 2. They have the privilege not to answer requiring disclosure of such matters unless they fall within exceptions listed in Federal Rule of Criminal Procedure

What are the secrecies of the Grand Jury Proceedings as a Privilege?

Meaning a journalist can refuse to disclose sources, but must make available other information acquired through reporting acitivities

What does it mean when many states make the News Reporter's privilege "qualified"?

when a person's statement or communication 1. is compelled 2. is testimonial 3. is self-incriminating 4. In any criminal cases

When does the 5th amendment protections against self-incrimination become applicable?

The federal and every state marital privilege statute provide an exception to the marital privilege to permit one spouse to testify in criminal cases about beatings and other violence by the other spouse against either the spouse or their children

When one spouse commits crimes against the other spouse or children, how would one avoid this result?

Jaffe Court

Which court observed that all 50 states had enacted some form of psychotherapist privilege?

Journalist Privilege

Which privilege is invoked by person posting information on websites that do not fit the traditional print media model?

Clergy person

Who does not have to be engaged full time in the profession, but the definitions are not so broad as to include all self-dominated "ministers"

Professional journalists who are employed in some fashion as journalists

Who is allowed to claim the News Reporter's Privilege?

Judicial notice

___________________ should shorten and simplify trials

Marital Privilege

_________________________ originated before the United States become a nation

Privilege

a benefit or right enjoyed by a person; for example, the privilege of a witness not to answer a question might be based on the privilege against self-incrimination or the marital privilege

Psychotherapist-Patient Privilege

a privilege created by statute in many states

News Reporter's Privilege

a privilege that does not exist in common law; created by statutes in many states

Husband-Wife Privilege

a spouse could not be forced to testify against the other spouse

Patient

one who must seek the treatment or diagnosis of a licensed psychotherapist for treatment of mental or emotional conditions, including drug addiction

Informants

persons who provide information to law officers

Fifth Amendment Privilege

privilege against self-incrimination is the only privilege that has been incorporated into the U.S. Constitution and many state constitutions

Tarasoff v. Regents of the University of California

the case where 1. States began adopting a "duty to protect" rule 2. Under this rule, once a psychotherapist discovers that a patient poses a serious threat to a third person, the psychotherapist must exciser reasonable efforts to protect that person 3. California has adopted as part of its Evidence Code an exception to the psychotherapist-patient privilege that communications by a dangerous patient are not privileged

Judicial Notice

the doctrine that evidence of well-accepted facts may be introduced in court without proof; a judicial shortcut

Crime-Fraud Exception

the exception made to attorney-client privilege when a client consults with an attorney for the purpose of committing a future crime such as perjury; communication and documents relating to this fraud are not protected

Partner-in-Crime Exception

the exception to the marital privilege if a husband and wife commit a crime together

Grand Jury Secrecy Requirements

the mandate that persons serving on grand juries will no disclose "matters occurring before" the grand jury on which they serve

Attorney-Client Privilege

the oldest of the privilege; protects communications between the client and the attorney

Physician-Patient Privilege

the privilege created, not by common law, but by state law for state courts; belongs to the patient and may be waived by the patient

Sexual Assault Counselor's Privilege

the privilege for counselors of victims of sexual assault and crimes of violence; also applies to records and testimony by counselors without the consent of the victim or patient