Additional Privileges

Question 1

Types of Spousal Privileges

Answer 1

• confidential spousal communications
• adverse spousal testimony

Question 2

Marriage Qualifications for Spousal Privilege to Apply

Answer 2

• needs to be a valid legal marriage
• sham marriages carried out for the purpose of avoiding having to produce the info in litigation are NOT protected

Question 3

Confidential Spousal Communications

Answer 3

• protects against disclosure of communications between spouses
• applies to communications that occurred during the marriage (need to have been married when the communication occurred)
• the communications must have been confidential when they occurred

Question 4

Confidential Spousal Communications - Who do they belong to?

Answer 4

• belong to both spouses
• either has the power to invoke the privilege
• neither spouse acting individually can waive (would need both to waive)

Question 5

Confidential Spousal Communications - Temporal Component

Answer 5

• does not operate forwards or backwards - ONLY communications that occurred during the time of the marriage
• communications that did occur during the marriage are covered even if the couple subsequently gets divorced
• communications during divorce proceedings still covered

Question 6

Exceptions to Confidential Spousal Communications

Answer 6

• doesn’t apply to lawsuits between spouses, whether presently married or not
• doesn’t apply if litigation in which someone’s trying to use it involves crime by one spouse against the other spouse or crime by one spouse against children of the two spouses
• crime fraud exception - if the two are involved in a crime together, their communications are not privileged

Question 7

Adverse Spousal Testimony Privilege

Answer 7

• only applies if spouses married at time of trial (if divorced, gov. can forced ex-spouse to testify against you)
• protects all the things the spouse knows about you, including pre-marriage things

Question 8

Trammel v. US

Answer 8

• originally, either spouse could invoke the adverse spousal testimony privilege BUT this case changed that
• SCOTUS decided it is solely the decision of the testifying spouse whether or not to testify (if the spouse wants to testify, they can; if not, spouse cannot be “compelled”)
• “compelled” complicated - gov is allowed to put pressure on the testifying spouse by giving you the choice between witness and co-conspirator - SCOTUS said fine as long as “voluntary” decision by testifying spouse

Question 9

Relationship Between the Spousal Privileges

Answer 9

• if one spouse decides to testify against the other, still can’t reveal anything covered by confidential spousal communications (since both would need to waive this)

Question 10

Exceptions for Adverse Spousal Testimony Privilege

Answer 10

• ONLY applies in federal criminal cases - DOES NOT apply in civil cases, unless a state law says so for state proceedings
• same exceptions as the other spousal privilege also apply here

Question 11

Spousal Privilege and Attorney Privilege

Answer 11

• if your spouse is in the room for a communication with your attorney, you’d lose attorney-client privilege unless you can determine that the spouse’s presence is necessary in some way to assist in the provision of legal advice
• attorney’s presence would destroy the spousal privilege

Question 12

Other Privileges Recognized Under Federal Law

Answer 12

• physician-patient
• psychotherapist-patient
• mediation (split though among courts)

Question 13

Physician-Patient Privilege

Answer 13

• belongs to patient
• recognized under both federal and state law

Question 14

Psycho-therapist-Patient Privilege

Answer 14

• established in Jaffe v. Redmond
• applies in federal and state court
• covers what you say to psychotherapist and what they say back

Question 15

Privileges Not Recognized at Federal Level

Answer 15

• priest-penitent privilege
• informers’ privilege (need to disclose if would violate defendant’s right to fair trial)
• reporter’s source
• accountant-client privilege
• parent-child privilege

All the above except the informant are recognized in at least some states though