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Privileges Outline

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This is an extract of our Privileges document, which we sell as part of our Evidence Outlines collection written by the top tier of Oklahoma City University School Of Law students.

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PRIVILEGES No exact privilege is expressly stated in the Rules, i.e., privileges are the most significant area of evidence law not codified by the federal rules. The Rules -> FRE 501 Privilege -> General Rule EXCEPT otherwise provided in Constitution, Act of Congress or in rules of the Supreme Ct. pursuant to statutory authority, the privilege of a witness (person, govn't, State, etc.) shall be governed by the principles of the common law as they may be interpreted by the courts of the U.S. in the light of reason and experience. However, in civil actions and proceedings, w/r/t an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance w/State law.

Enabling Act 28 U.S.C. SS2074(b) -> Bars the Ct. from adopting privilege rules on its own. "Rules creating, abolishing, or modifying an evidentiary privilege shall have no force or effect unless enacted by Congress." Other Considerations: In General: No complete list of privileges. Default rule = Cts. very cautious to establish new privilege. Unlike other FRE rules, privilege protects certain relationships, even if significant costs on the litigation process, i.e., may impede the search for truth. Encourages the free flow of communication.

When Does a Ct. Create a Privilege -> Must Consider (Jaffe Ct.): Is the privilege rooted in imperative need for confidence and trust?
Would serve public ends?
Is evidentiary detriment modest?
Would denial of fed. privilege frustrate parallel privilege by States?

The Psychotherapist - Patient Privilege The Rule -> The privilege exists. Cts. used FRE 501. Case Law:

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