Evidence: Privileges & Witness Examination

What are the core elements required to establish the attorney-client privilege?

The attorney-client privilege requires a confidential communication between a client and an attorney made for the purpose of obtaining or providing legal advice or representation.

Under what circumstances does the crime-fraud exception defeat the attorney-client privilege?

The crime-fraud exception defeats the attorney-client privilege when the client's communication was made with the intent to further a continuing or future crime or fraud.

When does an intentional disclosure of privileged attorney-client communications result in a subject matter waiver?

An intentional disclosure results in a subject matter waiver if the disclosed and undisclosed communications concern the same subject matter and ought in fairness to be considered together.

In federal criminal cases, who holds the spousal testimonial privilege (spousal immunity)?

In federal criminal cases, the testifying spouse holds the spousal testimonial privilege and may choose to testify or refuse to testify against the defendant spouse.

Does the marital confidential communications privilege survive divorce, and who holds it?

Yes, the marital confidential communications privilege survives divorce for statements made during the marriage, and it is held by both spouses, meaning either can assert it.

Does federal common law recognize a general physician-patient privilege?

Federal common law does not recognize a general physician-patient privilege, though state law may apply in federal court under the Erie doctrine in diversity cases.

Can a witness invoke the 5th Amendment privilege against self-incrimination in a civil proceeding, and what is the consequence?

A witness can invoke the 5th Amendment in a civil proceeding, but unlike in criminal cases, the fact-finder is permitted to draw an adverse inference from the invocation.

Under FRE 602, what is the foundational requirement for a lay witness to testify about a matter?

Under FRE 602, a lay witness may only testify if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.

What are the three requirements for admitting lay opinion testimony under FRE 701?

Lay opinion testimony must be rationally based on the witness's perception, helpful to clearly understanding the testimony or determining a fact, and not based on scientific, technical, or other specialized knowledge.

What are the four non-exclusive factors established in Daubert v. Merrell Dow Pharmaceuticals for assessing the reliability of expert testimony?

The four Daubert factors are: (1) whether the theory/technique can be and has been tested, (2) whether it has been subjected to peer review and publication, (3) its known or potential error rate, and (4) its general acceptance in the relevant scientific community.