Privileges (Evidence)

MBEMax wiki article — paired with the Evidence question set on mbemax.com.

One-line summary

Evidentiary privileges allow certain relationships to keep communications out of court — attorney-client, spousal, physician-patient, clergy, psychotherapist-patient, and government privileges — with strict prerequisites and familiar exceptions.

Mnemonic

A-S-P-C-P-G — Attorney-client, Spousal, Physician-patient, Clergy, Psychotherapist-patient, Government.

Attorney-client privilege

• Scope. Protects confidential communications made between client and lawyer (or agents) for the purpose of obtaining legal advice. Does NOT protect underlying facts. Protects both directions.
• Held by client. Privilege belongs to client; survives death (trust and estate exception allows waiver by executor).
• Corporate clients — Upjohn test. Communications by any employee about work-related matters, for legal advice, at direction of superiors, kept confidential, are privileged. Control-group test minority.
• Exceptions (waiver / no attach):
  • Crime-fraud exception (future intended crime or fraud).
  • Joint-client disputes (no privilege between jointly represented clients).
  • Claimant-through-same-deceased (will contests).
  • Attorney-client dispute.
  • Lawyer-self-defense.
  • Required by law or court order after appropriate process.

Work-product doctrine (related)

• Protects materials prepared by attorney in anticipation of litigation. Ordinary work product discoverable on substantial-need + undue-hardship showing. Opinion work product (mental impressions, strategy) almost absolutely protected.
• FRCP 26(b)(3).

Spousal privileges (two distinct)

• Spousal immunity / testimonial privilege — criminal cases. Witness spouse holds; may refuse to testify adversely against defendant spouse. Applies to events before or during marriage. Ends at divorce.
• Marital confidential-communications privilege — civil + criminal. Either spouse may invoke. Applies to confidential communications during marriage. Survives divorce.
• Exceptions — crimes against one spouse or children; joint crimes; suits between spouses; pre-marriage communications (no privilege).

Physician-patient privilege

• Majority states recognize; no general federal common-law version.
• Protects confidential communications for diagnosis or treatment.
• Exceptions: patient puts condition in issue; public health reporting; malpractice suits; bodily injury actions; criminal cases in some states.

Psychotherapist-patient privilege

• Federal courts recognize (Jaffee v. Redmond, 518 U.S. 1 (1996)) — psychiatrists, psychologists, licensed social workers.
• Protects confidential communications during psychotherapy.
• Tarasoff duty to warn may override in some jurisdictions; courts balance.

Clergy-penitent privilege

• Protects confidential communications to clergy acting in spiritual role.
• Penitent holds; some statutes hold privilege jointly.

Government privileges

• Executive / presidential — qualified; may yield to specific, demonstrated need (United States v. Nixon).
• Deliberative process — internal pre-decisional deliberations.
• State secrets — military and diplomatic secrets; absolute where properly invoked.
• Informant identity — qualified; yields when necessary for fair adjudication in criminal cases (Roviaro v. United States).

Fifth Amendment privilege against self-incrimination

• Only natural persons; corporations do not have Fifth Amendment privilege.
• Communications must be testimonial, incriminating, and compelled.
• Not available for physical evidence (blood, fingerprints, handwriting exemplars, voice samples, lineups).
• Requires assertion; may be waived by testifying in same proceeding; immunity cures compulsion.
• Kastigar v. United States — use and derivative-use immunity is sufficient.

NCBE loves to test

• Facts vs. communications. Privilege protects communication, not the underlying facts. Client can be compelled to testify about what she saw; can't be compelled to testify about what she told the lawyer.
• Presence of third parties. Destroys confidentiality unless the third party is an agent needed for communication (translator, accountant engaged for legal advice).
• Corporate privilege — scope of employment. Upjohn employees speaking for legal advice within scope are covered.
• Waiver. Disclosure to third parties (non-agents) waives. Selective waiver rarely recognized. FRE 502 — inadvertent disclosure may not waive if reasonable steps taken to prevent/rectify.
• Crime-fraud exception. Requires prima facie showing client sought services for future crime or fraud.
• Spousal privileges distinction. Testimonial = criminal only, witness holds, not post-divorce. Communications = both civil/criminal, both spouses hold, survives divorce.
• Jaffee v. Redmond. Federal psychotherapist privilege absolute; no balancing.
• Fifth-Amendment limits. Only natural persons; only testimonial and incriminating; subject to immunity exchange.

Fast hypos

Hypo 1. Client tells lawyer "I killed X." Lawyer subpoenaed to testify. Attorney-client privilege — lawyer cannot be compelled. Client could be asked whether he killed X (underlying fact, if otherwise admissible).

Hypo 2. Client tells lawyer she plans to defraud a bank next week. Crime-fraud exception — privilege does not attach.

Hypo 3. Wife takes the stand to testify against husband in federal criminal case about conversations during marriage. Marital communications — husband may invoke to bar testimony about confidential communications during marriage. Testimonial privilege — witness wife could refuse regardless, but here she is willing.

Hypo 4. Therapist seeks to testify that patient threatened to kill roommate. Jaffee privilege federally absolute; some state Tarasoff doctrines permit warning or testimony where imminent threat demonstrated.

Case anchors

• Upjohn Co. v. United States, 449 U.S. 383 (1981) — corporate attorney-client privilege.
• Swidler & Berlin v. United States, 524 U.S. 399 (1998) — privilege survives client's death.
• Jaffee v. Redmond, 518 U.S. 1 (1996) — federal psychotherapist-patient privilege.
• United States v. Zolin, 491 U.S. 554 (1989) — crime-fraud in-camera review.
• Trammel v. United States, 445 U.S. 40 (1980) — witness-spouse holds testimonial privilege.
• Kastigar v. United States, 406 U.S. 441 (1972) — use immunity sufficient.
• United States v. Nixon, 418 U.S. 683 (1974) — executive privilege qualified.

See also

• Hearsay
• Impeachment
• Character
• Authentication

Sources

Fed. R. Evid. 501, 502; Upjohn Co. v. United States, 449 U.S. 383 (1981); Swidler & Berlin v. United States, 524 U.S. 399 (1998); Jaffee v. Redmond, 518 U.S. 1 (1996); Trammel v. United States, 445 U.S. 40 (1980); United States v. Zolin, 491 U.S. 554 (1989); Kastigar v. United States, 406 U.S. 441 (1972); United States v. Nixon, 418 U.S. 683 (1974).