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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 U.C. Berkeley School Of Law (Boalt Hall) students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Evidence Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:

1) Privilege: Proposed 501, 502, 511, 512, 513

a) Privileges - General Information i) FRE 501: General privilege (1)federal cases applying federal law: federal common law governs whether a privilege applies. If state law applies (diversity cases), then the state law also governs whether a privilege applies. ii) Federal courts currently recognize attorney-client, spousal communications, psychotherapist/social worker iii) Waiver (1)4 ways (a) holder may indicate through words/conduct a desire to forgo the privilege (b)holder refrains from invoking privilege (i) But see 502: generally limits effect of disclosure when communication protected by A-C and work product doctrine is inadvertently disclosed (c) Voluntary disclosure of confidential communication Proposed Rule 511 (i) Unless made in context of another privileged communication (ii) Must be disclosure of the confidential communication itself. A voluntary statement of facts that were the subject of the communication is not a waiver of the privilege. (iii) Inadvertent disclosures are not waivers. Governed by FRE 502. (iv) Disclosures made under compulsion or without opportunity to claim privilege = not a waiver. Proposed Rule 512 (d)Asserting claim based on privileged information (i) "when a party asserts a claim that in fairness requires examination of protected communications" (ii) Proposed Rule 513 iv) Exceptions (1)Derived from underlying policies the particular privilege was created to serve (a) Examples (i) A-C: crime/fraud (ii) Marital: spousal abuse (iii) Priest/penitent: child abuse (b)These privileges designed to preserve relationships, not to encourage assaultive behavior v) Drawing adverse inferences from invoking a privilege (1)Griffin: allowing comment on D's decision not to testify violated his 5th amendment privilege "by making its assertion costly" (2)Courts split on non-5th Amendment privileges (3)Proposed FRE 513 would've made comment/inference not permitted vi) Constitutional limitations (1)When W invokes privilege that harms D's rights under the compulsory process and confrontation clauses (only criminal) (2)Supreme Court has explored this: privileges that impede a D's rights or governmental investigation may be unconstitutional, in violation of the 6th amendment or due process clause of 14th amendment. vii) Burden (1)On person invoking the privilege. (2)Must show attorney was contacted for legal professional purpose

2) Attorney-Client Privilege: Proposed 502/503

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