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Law Outlines Evidence Outlines

Privileges Outline

Updated Privileges Notes

Evidence Outlines

Evidence

Approximately 49 pages

I handwrote my notes for the entire class and then used the notes to create this outline in preparation for the Final Exam....

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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. §2074(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 PsychotherapistPatient Privilege

The Rule –> The privilege exists. Cts. used FRE 501.

Case Law:

Jaffee v. Redmond

D (Police officer) shoots deceased. Deceased family claims that D used excessive force. At trial family tried to get disclosure of over 50 counseling session’s w/D’s psychotherapist.
Issues: Whether under FRE 501 it is appropriate to recognize in federal cts. a “psychotherapist privilege.” Ct. must consider whether the new privilege promotes sufficiently important interest that outweigh the need for probative evidence.
Holding: Psychotherapist-patient privilege should be recognized.
Rules: There are a number of rules the Ct. recognizes and adopts: FRE 501 authorizes federal cts. to define new privileges by interpreting “common law principles” in the light of reason and experience; FRE 501 should be understood as reflecting the view that the recognition of a privilege based on a confidential relationship should be determined on a case-by-case basis, i.e. the rule was not meant to be “frozen” but it should be developed over time. The privilege was found to exist.

Other Considerations:

Scope of Psychotherapists Privilege – (1) licensed psychiatrists and psychologists; and (2) licensed social workers in the course of psychotherapy.

Exception – In a footnote ct. mentions that there may be a situation in which the privilege must give way, e.g. if a serious threat of harm to the patient or to others can be averted only by means of disclosure by the therapist.

Why this Privilege? –> As discussed in Jaffee:

Serves a public end –> (1) facilitating appropriate treatment for those suffering from mental or emotional problems. The mental health of the community is a public good/importance; (2) If the privilege would not be recognized then those who undertake mental evaluations might not disclose ALL, thus leaving the trier of fact w/o the needed info. – just as the trier would be if there was a privilege.

Analogous to Other Recognized Privileges –> Just like spousal and attorney-client immunity, the psychotherapist patient privilege is rooted in the imperative need for confidence and trust. Effective psychotherapy depends on an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears.

The Spousal Privileges – Two (2) types of spousal privileges

Adverse Testimonial Privilege

The Rule –> Applies in criminal cases.

Case Law:

Trammel v. United States
Fed. Ct. –> Only witness spouse holds privilege” H and W are involved in a drug scheme. H is on trial, and the W voluntarily agrees to work w/the prosecution and provide exculpating evidence against the H. H argues that the spousal immunity privilege should be granted to exclude the W’s testimony.
Issues: Whether the D/accused may invoke the spousal-immunity to exclude voluntary testimony from the spouse/witness.
Holding: No, the spouse/accused does not have a testimonial spousal immunity. The only spouse that holds the testimonial spousal immunity is the spouse/witness. That spouse/witness alone has the right to refuse to testify adversely. That spouse cannot be compelled to testify nor forbidden to testify.
Contemporary Reasons for the Privilege Unpersuasive: The argument to not allow the witness/spouse to testify b/c it will encourage disharmony and family hatred does not really work. At this point in the game H and W probably don’t have that great a relationship, plus the spouse/witness chooses to testify voluntarily. Prohibiting this type of testimony is far more likely to frustrate justice than it is to foster family peace.

Other Considerations:

Scope and Duration of Privilege:

At time of trial; Applies only to spouses that are married when testimony is sought.
Marriage must be valid.
Blocks ALL testimony by spouse against the other; i.e. includes premarital events or acts.

Purposes Served:

Preserve ongoing marriages – refuse to pit H against W in a trial; life liberty is at stake.

Protect against invasion and denying of human dignity – govn’t should not engage in pitting H and W to “seal” the fate of the marriage.

Which Spouse Holds the Privilege? –>

Jurisdictions disagree. Some argue that only 1 holds it (the witness) and some argue that both hold it (the witness and the D). If both...

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