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?

Accepted Answer

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?

Accepted Answer

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?

Accepted Answer

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.

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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?

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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?

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Question 7

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

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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?

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Question 9

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

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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.

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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?

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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.

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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.

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Question 14

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

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Question 15

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

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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?

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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?

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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?

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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?

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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?

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Quiz 8: Privileges