11. PRIVILEGE

 

Privileges are important but not covered under the Federal Rules. I guess the drafters thought this was too embedded in state law to have a national rule, e.g., doctors, attorneys, therapists, etc., hold state licenses and are regulated by state law. So, you have to know the common law and the statutes in your state. Some of Indiana’s were in your readings to give you a flavor.

Issues to look for: *chart*

Basic principle: Are we talking about a private communication?

1) BEFORE the communication:
    a. Is there a privileged relationship between speaker and listener, e.g., attorney, spouse, clergy
    b. Did the speaker intend it to be kept confidential?

2) DURING the communication, was it in fact confidential?

3) AFTER the communication
    a. Did the speaker keep it confidential?
    b. Did the listener keep it confidential?

4) WHEN CASE WAS FILED, did party place communication in issue?

5) IN LITIGATION, was the privilege properly asserted by the speaker or his attorney?
    a. In discovery
    b. At trial

6) Is there any kind of exception that removes this type of communication from being privileged, e.g., it reveals child abuse?


Start with Problem 11A. The prosecutor seeks information during discovery from a defense attorney.

Part 1 -- the knife. The request has two parts. First, asking the attorney whether her client gave her a knife, and second, requesting production of the knife.

If the attorney asserts attorney-client privilege, what argument(s) should the prosecutor make that the information is not privileged?

When you think you know the answer, click here to continue.