LAW 545-001 – Evidence

Privilege


Privilege allows one to not testify about something that it applies to. Privilege can be based on the Constitution or statute.

The holder of a privilege must take reasonable steps to prevent disclosure and to rectify an inadvertent disclosure.

Self-Incrimination
Fifth Amendment to the United States Constitution

No person . . . shall be compelled in any criminal case to be a witness against himself

The Fifth Amendment right against self-incrimination is implicated when the evidence is:

  1. Used for criminal liability against the declarant
  2. Testimonial
    • Forcing one to disclose the contents of his mind
  3. Compelled by the government
    • Business records are ordinarily not compelled by the government.
      • It can be though if the government cannot describe the incriminating documents with reasonable particularity. United States v. Hubbell.
    • Required Records

      The Fifth Amendment protection against self-incrimination does not apply to required records.

      For the required-records doctrine to apply:

      1. The purpose of the regulatory scheme must be essentially regulatory.
      2. The records must be of a kind customarily kept.
      3. The records must have acquired "public aspects."
Immunity
Use Immunity

Use immunity protects one from prosecution from one's testimony. The testimony cannot be used against him.

Transactional Immunity

Transactional immunity is a broader form of immunity that grants total immunity from prosecution for the crimes discussed.

Attorney-Client Privilege

The attorney-client privilege protects communication, not the information inherent therein.

The attorney-client privilege is held by the client, but ethics require attorneys to assert it.

Fees and names are not typically confidential, but can be if it would expose the client to liability.

Conduct not intended to be confidential communication is not covered.

The attorney-client privilege survives the client's death.

Marital Privilege

The marital privilege is comprises both the communication privilege and the testimonial privilege.

The marital communication privilege gives both people the right to protect intended confidential communication made during the marriage but not actions unless the actions were intended to communicate something. Either spouse can claim this privilege indefinitely and prevent the communication from being admitted.

The testimonial privilege protects currently married partners from being compelled to testify against each other, but one can waive this privilege and testify anyway.