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Evidence Chapter 10 Privileges Outline

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This is an extract of our Evidence Chapter 10 Privileges document, which we sell as part of our Evidence Outlines collection written by the top tier of Harvard Law School students.

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Table of Contents
Chapter 10. Privileges..............................................................................................................1
A. In General......................................................................................................................................1
B. Attorney-Client Privilege................................................................................................................2

1. Introduction....................................................................................................................................2

2. Elements of the Privilege................................................................................................................5 a. Communication............................................................................................................................................5 b. In Confidence................................................................................................................................................6 c. Between Attorney and Client........................................................................................................................8 d. To Facilitate Legal Service..........................................................................................................................13

3. Waiver...........................................................................................................................................16

4. Crime-Fraud Exception..................................................................................................................20
C. Spousal Privileges.........................................................................................................................21

*NB: This outline accords with Sklansky, Evidence: Cases, Commentary and Problems 4th ed.

Chapter 10. Privileges
A. In General
Introduction
 Privileges differ from other rules of evidence in four important ways:
o (1) They are not just rules of admissibility; they govern whether evidence can be introduced at trial, but also whether disclosure can be compelled before trial.
o (2) Some parallel rules of professional responsibilities that impose duties of confidentiality, though they sometimes do not.
o (3) Their purpose is not to improve accuracy of fact finding;
sometimes they impair fact finding. Rather, they are typically justified on some goal outside the litigation process, often the protection of some relationship thought to be socially beneficial.
o (4) Privileges are not codified in FRE. Only FRE 501 is relevant,
and it directs federal courts to continue to develop and apply a federal common law of privileges—except with respect to civil claims or defenses for which state law provides the rules of decision. For those issues (typically raised in diversity cases), FRE 501 treats privileges as matters of substance rather than procedure (similar to second sentence of FRE 601).
FRE 501. Privilege in General
 The common law--as interpreted by United States courts in the light of reason and experience--governs a claim of privilege unless any of the following provides otherwise:
o the United States Constitution;
o a federal statute; or

rules prescribed by the Supreme Court.
 But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.
McCormick on Evidence
 Most common privileges:
o against self-incrimination

communications between husband and wife, attorney and client,
physician and patient.
 The warrant for privileges is the protection of interests and relationships which, rightly or wrongly, are regarded as of sufficient social importance to justify some sacrifice of availability of evidence relevant to the administration of justice.
Mueller & Kirkpatrick, Evidence
 Article V of FRE originally proposed to codify the law of privileges, but that proposal was rejected.
 Congress did, however, remove privileges from the general rulemaking power of the Supreme Court and adopted legislation providing that no formal rules of privilege promulgated by the Court can become effective until approved by an Act of Congress [28 USC §2074(b)].

B. Attorney-Client Privilege

1. Introduction
Introduction
 Attorney-client privilege is among the oldest privileges, and is a model for most professional privileges.
 Critics note it offers tremendous assistance to wrongdoers and coincides suspiciously with the professional interests of the bar.
Swidler & Berlin v. United States, 524 U.S. 3999 (1998)
Facts: D, an attorney, made notes of initial interview with client shortly before client's death. P, government, represented by Office of Independent
Counsel, seeks his notes for use in criminal investigation.
o Client was Vincent W. Foster Jr., a White House official potentially involved in illegal conduct, who met with D to seek legal representation concerning possible congressional investigations.
o D took three pages of notes, one of the first of which is the word
"Privileged." Nine days later, client committed suicide.
 Grant jury, at request of P, issued subpoenas for notes. D filed motion to quash, claiming attorney-client privilege. TC denied summons, but CoA
reversed.
Opinion (Rehnquist):
 Purpose of privilege is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.
 Issue here is the scope of the privilege: whether privilege survives death of the client.
o Interpretation of privilege's scope is guided by "principles of common law as interpreted by the courts in the light of reason and experience." FRE 501.
o Testamentary exception: general rule with respect to confidential communications is that they are privileged during testator's lifetime and also after the testator's death unless sought to be disclosed in litigation between testator's heirs.
 Rationale for such disclosure is that it furthers client's intent.
 Posthumous application of the privilege furthers its goals of encouraging frank communication with counsel.
o P argues only clients intending to perjure themselves would be chilled, as opposed to truthful clients or those asserting their Fifth
Amendment privilege. But the attorney-client privilege serves broader purposes than the Fifth Amendment privilege against selfincrimination.
o Loss of evidence is not so severe, since evidence wouldn't exist without the privilege (clients wouldn't have disclosed in absence of privilege).
 Privileges apply in criminal and civil cases alike.
o Ex post balancing test of information against client's interests, as proposed by P, would introduce substantial uncertainty.
o Crime-fraud and testamentary exceptions are consistent with the purposes of the privilege, while a posthumous exception in criminal cases would appear at odds with the goal of encouraging frank discussion.
 Attorney-client privilege survives the death of the client in a case such as this.
 

o FRE 501 does not mandate that a rule, once established, shall endure for all time.
CoA reversed.

United States v. Jicarilla Apache Nation, 564 U.S. ____ (2011)
Facts:
 Proceeds from natural resources on land occupied by Tribe (P) were held in trust by Department of Interior (D). P sued D for damages arising from alleged mismanagement of funds in trust.
o D asserted attorney-client privilege with regard to (1) requests for legal advice relating to trust administration sent by personnel at D
to Office of the Solicitor, and (2) legal advice sent from Solicitor's office to personnel at Interior and Treasury Departments.
 TC ordered disclosure of almost all documents, and CoA denied D's petition for mandamus. Both reasoned the trust relationship between P
and D rendered attorney-client privilege inapplicable.
Opinion (Alito):
 The objectives of the attorney-client privilege apply to governmental clients.
o The privilege aids government entities in obtaining legal advice founded on a complete and accurate picture.
o Unless applicable law provides otherwise, government may invoke attorney-client privilege in civil litigation to protect confidential communications between government officials and government attorneys.
o Governmental agencies and employees enjoy the same privilege as nongovernmental counterparts.
 Fiduciary exception: when a trustee obtains legal advice to guide the administration of a trust, and not for the trustee's own defense in litigation, the beneficiaries were entitled to the production of documents related to that evidence.
o Courts reasoned that the privilege does not apply here because the legal advice was sought for the beneficiary's benefit and was obtained at the beneficiary's expense by using trust funds to pay the attorney's fees.
o Riggs Nat. Bank of Washington, D.C. v. Zimmer: leading fiduciary exception case, court reasoned that (1) beneficiaries were the "real clients" of the attorney who advised the trustee on trust-related matters, so the attorney-client privilege properly belonged to beneficiaries rather than trustees; and (2) trustee's duty to furnish trust-related information to the benefactors outweighed their interest in attorney-client privilege.
 But the Government is not a private trustee.
o The relationship at hand is defined and governed by statutes,
rather than the common law. This statutory relationship is limited compared to a trust relationship between private parties at common law.
 The two features justifying the fiduciary exception are absent in the relationship Congress established between the United States and the
Tribe.
o US did not obtain legal advice as mere representative of Tribe, nor is Tribe the real client for whom advise is intended. Government seeks legal advice here in a sovereign capacity, akin to a personal capacity rather than a fiduciary one. Government attorneys are paid out of Congressional appropriations at no cost to the Tribe.
 Courts look to the source of funds as a strong indicator of precisely who the real clients are and a significant factor in determining who ought to have access to the legal advice.
o Defined by statute, the US does not have the same common-law disclosure obligations as a private trustee.
 By law and regulation, the documents at issue are classes "property of the United States."
o Ownership of the resulting records are a significant factor in deciding who ought tohave access to the document.
Dissent (Sotomayor):
 Privileges should be construed narrowly.
 The US is in a conventional fiduciary relationship, and so the exception applies.
 This decision thwarts efforts to address the long history of government mismanagement of Indian resources.
Bentham, Rationale of Judicial Evidence
 The attorney-client privilege only helps those who have committed wrongdoing. If the information is exculpatory, it would come out. If it is inculpatory, it should come out.
Simon, The Kaye Scholar Affair
 Rationale for confidentiality with respect for ongoing or anticipated wrongful behavior is that it induces people to seek legal advice. But a person who intends to abide by the law in any event does not need this inducement. So the question is why is it important to induce people who think they might be inclined to violate the law to seek legal advice.
 The bar argues inducing people with a shaky commitment to law abidingness to seek legal advice is good because it gives lawyers an opportunity to dissuade them from illegal conduct.
Barton, Do Judges Systematically Favor the Interests of the Legal
Profession?
 Attorney-client privilege has enjoyed a unique and vaunted position among all professional privileges.
 It allows attorneys to offer an exceptional produce to their clients. 2. Elements of the Privilege
Introduction
 Application of attorney-client privilege typically requires four things: (a)
a communication, (b) in confidence, (c) between a lawyer and client, (d)
in the course of provision of professional legal services.

a. Communication
United States v. Kendrick, 331 F.2d 110 (4th Cir. 1964)
Facts:
 D appeals denial of motion to vacate sentence on the grounds the petitioner was incompetent to stand trial.
 Court admitted testimony by D's attorney as to his demeanor.
Opinion (Per Curiam):
 Court does not agree with D that the testimony of his trial counsel should have been excluded at the post-conviction hearing on the basis of attorney-client privilege.
 It is the substance of the communications which is protected, not the fact there have been communications.
o Also excluded from the privilege are physical characteristics of the client, such as his complexion, demeanor, bearing, sobriety, and dress.
o Such things are observable by anyone who talked with the clinent.
o The privilege protects only the client's confidences, not things which at the time are not intended to be held in the breast of the lawyer, even though the attorney-client relation provided the occasion for the lawyer's observation of them.
 Here, attorney testified to such nonconfidential matters:
o D was responsive, readily supplied attorney with his version of facts and names of others involved, was logical in conversation and reasoning, and appeared to know everything that went on before and during trial.
o No mention was made of substance of any communication; witness testified only about client's cooperativeness and awareness.
 All of the matters to which attorney testified are objectively observable particularizations of the client's demeanor and attitude, made at a time when neither client nor lawyer manifested any reason to suppose they were confidential, so they were not within privilege.
Tornay v. United States, 840 F.2d 1424 (9th Cir. 1988)
Facts:
 D were investigated by IRS. IRS sought to establish tax liability on net worth, net expenditure basis, and so summoned three attorneys whom D had retained in connection with an earlier criminal conviction, for information regarding fees paid.
o When attorneys complied with summonses, D discharged them. D
hired a new lawyer, and IRS did the same thing. New attorney refused to comply with summons, and D insists they will discharge attorney if he does.
Opinion (Wright):
 Because the privilege has the effect of withholding relevant information from the fact finder, it applies only where necessary to achieve its purpose.
o Accordingly, it protects only those disclosures necessary to obtain informed legal advice which might not have been made in the absence of the privilege.
o Fee information generally is not privileged.
o The privilege is not to immunize a client from liability stemming from expenditures for legal services.
 Baird v. Koerner: involved several clients who directed attorney to tender anonymously to IRS delinquent tax payments and interest. IRS
issues summons requiring counsel to identify clients.
o Disclosure of client's identity was protected by attorney-client privilege because identifying the clients would be tantamount to conveying a privileged communication in which the clients disclosed their delinquent tax liabilities.
 Baird and its progeny do not apply here.
o D's identity was known to IRS and agency sought only the amount,
date, and form of payments. D have not demonstrated the existence of exceptional circumstances that would make disclosure tantamount to revealing a confidential communication.
 TC did not abuse discretion in denying petition to quash.

b. In Confidence
United States v. Gann, 732 F.2d 714 (9th Cir. 1984)
Facts:
 D convicted of possessing sawed-off shotgun. After a bank robbery,
police searched D's home and found the gun in his car. Cop decided to arrest D, who was in the house talking on the phone in the presence of several cops who were searching the house.
o One detective told Cop, "I think he is talking to his lawyer." Cop waited in room in order to arrest D as soon as he got off the phone.
o Cop heard D state on phone, "Looks like I'm going to have to go downtown—ex-con in possession, I guess."
o Prosecutor later introduced these statements to prove D had knowledge of the gun found in vehicle.
Opinion (Alarcon):

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