11

Chapter 6Chapter 6

Judicial Notice and Privileges Judicial Notice and Privileges of Witnessesof Witnesses

22

SCIENTIFIC AND TECHNOLOGICAL SCIENTIFIC AND TECHNOLOGICAL FACTS RECOGNIZED BY JUDICIAL FACTS RECOGNIZED BY JUDICIAL

NOTICENOTICE

JUDICIAL NOTICEJUDICIAL NOTICE CAN BE TAKEN OF A COURT CAN BE TAKEN OF A COURT RULING THAT A SCIENTIFIC TECHNIQUE WAS RULING THAT A SCIENTIFIC TECHNIQUE WAS RELIABLE.RELIABLE.

AN OHIO COURT OF APPEALS HELD IN THE 1973 AN OHIO COURT OF APPEALS HELD IN THE 1973 CASE OF STATE v. BROCK, THAT “COURTS MAY CASE OF STATE v. BROCK, THAT “COURTS MAY TAKE JUDICIAL NOTICE OF ANY SCIENTIFIC FACT TAKE JUDICIAL NOTICE OF ANY SCIENTIFIC FACT WHICH MAY BE ASCERTAINED BY REFERENCE WHICH MAY BE ASCERTAINED BY REFERENCE TO A STANDARD DICTIONARY OR IS OF SUCH TO A STANDARD DICTIONARY OR IS OF SUCH GENERAL KNOWLEDGE THAT IT IS KNOW BY GENERAL KNOWLEDGE THAT IT IS KNOW BY ANY JUDICIAL OFFICER”ANY JUDICIAL OFFICER”

33

Frye & Daubert RulesFrye & Daubert Rules Today, the FRYE Rule is used in Today, the FRYE Rule is used in

many states. many states. This rule essentially says that if the This rule essentially says that if the

science is generally accepted by science is generally accepted by the scientific community, the the scientific community, the procedure is admissibleprocedure is admissible

The Daubert Rule is more The Daubert Rule is more restrictive and is the “Federal” restrictive and is the “Federal” standard although some states do standard although some states do use it instead of Frye. use it instead of Frye.

44

THE PRIVILEGE AGAINST SELF-THE PRIVILEGE AGAINST SELF-INCRIMINATIONINCRIMINATION

THE FIFTH AMENDMENT THE FIFTH AMENDMENT PRIVILEGE AGAINST PRIVILEGE AGAINST SELF-INCRIMINATIONSELF-INCRIMINATION IS THE ONLY PRIVILEGE IS THE ONLY PRIVILEGE THAT HAS BEEN INCORPORATED INTO THE U.S. THAT HAS BEEN INCORPORATED INTO THE U.S. CONSTITUTION AND THE CONSTITUTIONS OF CONSTITUTION AND THE CONSTITUTIONS OF MANY STATESMANY STATES

THE U.S. CONSTITUTION REQUIRES “THAT THE THE U.S. CONSTITUTION REQUIRES “THAT THE GOVERNMENT SEEKING TO PUNISH AN GOVERNMENT SEEKING TO PUNISH AN INDIVIDUAL PRODUCE THE EVIDENCE AGAINST INDIVIDUAL PRODUCE THE EVIDENCE AGAINST HIM BY ITS OWN INDEPENDENT LABOR RATHER HIM BY ITS OWN INDEPENDENT LABOR RATHER THAN BY THE CRUEL, SIMPLE EXPEDIENT OF THAN BY THE CRUEL, SIMPLE EXPEDIENT OF COMPELLING IT FROM HIS OWN MOUTH”COMPELLING IT FROM HIS OWN MOUTH”

55

AREAS WHERE THE FIFTH AMENDMENT AREAS WHERE THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-PRIVILEGE AGAINST SELF-

INCRIMINATION DOES NOT APPLYINCRIMINATION DOES NOT APPLY

THE FIFTH AMENDMENT PRIVILEGE AGAINST THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION APPLIES ONLY TO EVIDENCE SELF-INCRIMINATION APPLIES ONLY TO EVIDENCE OF A COMMUNICATIVE OR TESTIMONIAL NATUREOF A COMMUNICATIVE OR TESTIMONIAL NATURE

IT DOES NOT APPLY WHEN ONLY PHYSICAL IT DOES NOT APPLY WHEN ONLY PHYSICAL EVIDENCE IS SOUGHT AND OBTAINEDEVIDENCE IS SOUGHT AND OBTAINED

THE PRIVILEGE AGAINST SELF-INCRIMINATION THE PRIVILEGE AGAINST SELF-INCRIMINATION DOES NOT APPLY IN THE FOLLOWING DOES NOT APPLY IN THE FOLLOWING CIRCUMSTANCES:CIRCUMSTANCES: THE WITHDRAWAL OF BLOOD AND THE USE OF THE WITHDRAWAL OF BLOOD AND THE USE OF

THE BLOOD AS EVIDENCE TO SHOW THAT THE THE BLOOD AS EVIDENCE TO SHOW THAT THE DEFENDANT WAS DRIVING A VEHICLE WHILE DEFENDANT WAS DRIVING A VEHICLE WHILE INTOXICATEDINTOXICATED

THE USE OF A HANDWRITING EXEMPLAR OR THE USE OF A HANDWRITING EXEMPLAR OR SAMPLESAMPLE

66

AREAS WHERE THE FIFTH AMENDMENT AREAS WHERE THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION PRIVILEGE AGAINST SELF-INCRIMINATION

DOES NOT APPLY (Cont.)DOES NOT APPLY (Cont.) COMPELLING THE ACCUSED TO EXHIBIT HIS COMPELLING THE ACCUSED TO EXHIBIT HIS

PERSON FOR OBSERVATION, AS IN A LINEUP OR PERSON FOR OBSERVATION, AS IN A LINEUP OR SHOWUPSHOWUP

TO MAKE A VOICE EXEMPLAR OR SAMPLETO MAKE A VOICE EXEMPLAR OR SAMPLE FOR IDENTIFICATION PURPOSES TO PUT ON A FOR IDENTIFICATION PURPOSES TO PUT ON A

STOCKING MASK AT TRIAL TO PERMIT A STOCKING MASK AT TRIAL TO PERMIT A WITNESS TO TESTIFY AS TO SIMILARITY TO THE WITNESS TO TESTIFY AS TO SIMILARITY TO THE MASKED ROBBER OR TO DYE HIS/HER HAIR TO MASKED ROBBER OR TO DYE HIS/HER HAIR TO THE COLOR IT WAS AT THE TIME OF THE THE COLOR IT WAS AT THE TIME OF THE OFFENSEOFFENSE

A WITNESS COULD TESTIFY THAT THE A WITNESS COULD TESTIFY THAT THE DEFENDANT WAS COMPELLED TO PUT ON A DEFENDANT WAS COMPELLED TO PUT ON A SHIRT AND IT FIT HIMSHIRT AND IT FIT HIM

WHERE IMMUNITY HAS BEEN GRANTED AND WHERE IMMUNITY HAS BEEN GRANTED AND THE PERSON IS COMPLELED TO TESTIFY OR THE PERSON IS COMPLELED TO TESTIFY OR AGREES TO TESTIFY AS PART OF A PLEA AGREES TO TESTIFY AS PART OF A PLEA AGREEMENTAGREEMENT

77

AREAS WHERE THE FIFTH AMENDMENT AREAS WHERE THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION PRIVILEGE AGAINST SELF-INCRIMINATION

DOES NOT APPLY (Cont.)DOES NOT APPLY (Cont.) WHERE THE INCRIMINATION IS OF OTHERS AND IS WHERE THE INCRIMINATION IS OF OTHERS AND IS

NOT SELF-INCRIMINATIONNOT SELF-INCRIMINATION WHERE THE PUBLIC INTEREST IN PROTECTING WHERE THE PUBLIC INTEREST IN PROTECTING

CHILDREN FROM ABUSE OUTWEIGHS FIFTH CHILDREN FROM ABUSE OUTWEIGHS FIFTH AMENDMENT PRIVILEGEAMENDMENT PRIVILEGE

U.S. MILITARY PERSONNEL AND LAW U.S. MILITARY PERSONNEL AND LAW ENFORCEMENT OFFICERS ARE OBLIGATED TO ENFORCEMENT OFFICERS ARE OBLIGATED TO REPORT ILLEGAL CONDUCT OF THEIR FELLOW REPORT ILLEGAL CONDUCT OF THEIR FELLOW OFFICERS AND MILITARY ASSOCIATES ACCEPT OFFICERS AND MILITARY ASSOCIATES ACCEPT WHEN THE MILITARY SERVICE PERSON OR LAW WHEN THE MILITARY SERVICE PERSON OR LAW ENFORCEMENT OFFICER HAD ALSO BEEN A PARTY ENFORCEMENT OFFICER HAD ALSO BEEN A PARTY TO THE CRIMETO THE CRIME

WHERE THERE HAS BEEN A VOLUNTARY, WHERE THERE HAS BEEN A VOLUNTARY, INTELLIGENT WAIVER OF THE PRIVILEGEINTELLIGENT WAIVER OF THE PRIVILEGE

88

RECENT EXAMPLES WHERE THE FIFTH RECENT EXAMPLES WHERE THE FIFTH AMENDMENT PRIVILEGE AGAINST AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION DOES APPLYSELF-INCRIMINATION DOES APPLY

WHERE THE WITNESS INSISTS SHE IS INNOCENT WHERE THE WITNESS INSISTS SHE IS INNOCENT OF ANY CRIMEOF ANY CRIME

TO REFUSE TO ANSWER SPECIFIC QUESTIONS TO REFUSE TO ANSWER SPECIFIC QUESTIONS ON A TAX RETURN BUT MAY NOT REFUSE TO ON A TAX RETURN BUT MAY NOT REFUSE TO FILE A RETURN ALTOGETHERFILE A RETURN ALTOGETHER

WHEN A PERSON IS QUESTIONED BY A WHEN A PERSON IS QUESTIONED BY A PROBATION OFFICER, SO LONG AS THE OFFICER PROBATION OFFICER, SO LONG AS THE OFFICER MAKES IT CLEAR THAT ANSWERS TO THE MAKES IT CLEAR THAT ANSWERS TO THE QUESTIONS ARE MANDATORY, NOT OPTIONALQUESTIONS ARE MANDATORY, NOT OPTIONAL

WHERE A DEFENDANT REMAINS SILENT UNDER WHERE A DEFENDANT REMAINS SILENT UNDER QUESTIONING, THE PROSECUTION IS QUESTIONING, THE PROSECUTION IS PROHIBITED FROM INTRODUCING EVIDENCE OF PROHIBITED FROM INTRODUCING EVIDENCE OF THAT SILENCE AT TRIALTHAT SILENCE AT TRIAL

99

THE ATTORNEY-CLIENT PRIVILEGETHE ATTORNEY-CLIENT PRIVILEGE

THE PURPOSE OF THE THE PURPOSE OF THE ATTORNEY-CLIENT ATTORNEY-CLIENT PRIVILEGEPRIVILEGE IS TO ENCOURAGE FULL AND FRANK IS TO ENCOURAGE FULL AND FRANK COMMUNICATION BETWEEN ATTORNEYS AND COMMUNICATION BETWEEN ATTORNEYS AND THEIR CLIENTS AND THEREBY PROMOTE THEIR CLIENTS AND THEREBY PROMOTE BROADER PUBLIC INTERESTS IN THE BROADER PUBLIC INTERESTS IN THE OBSERVANCE OF LAW AND ADMINISTRATION OBSERVANCE OF LAW AND ADMINISTRATION OF JUSTICEOF JUSTICE

MANY STATES HAVE STATUTES REGULATING MANY STATES HAVE STATUTES REGULATING THE ATTORNEY-CLIENT PRIVILEGETHE ATTORNEY-CLIENT PRIVILEGE

OTHER STATES, LIKE THE FEDERAL OTHER STATES, LIKE THE FEDERAL GOVERNMENT, USE THE GOVERNMENT, USE THE PRINCIPLES OF PRINCIPLES OF COMMON LAWCOMMON LAW

1010

REQUIREMENTS OF THE REQUIREMENTS OF THE ATTORNEY-CLIENT PRIVILEGEATTORNEY-CLIENT PRIVILEGE

THE CLIENT MUST SEEK THE PROFESIONAL THE CLIENT MUST SEEK THE PROFESIONAL LEGAL SERVICES OF AN ATTORNEY AND HAVE LEGAL SERVICES OF AN ATTORNEY AND HAVE THE INTENTION OF ESTABLISHING AN THE INTENTION OF ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIPATTORNEY-CLIENT RELATIONSHIP

IT IS GENERALLY HELD THAT THE PRIVILEGE IT IS GENERALLY HELD THAT THE PRIVILEGE APPLIES ONLY TO CONFIDENTIAL APPLIES ONLY TO CONFIDENTIAL COMMUNICATIONS MADE WITHIN THE COMMUNICATIONS MADE WITHIN THE ATTORNEY-CLIENT RELATIONSHIPATTORNEY-CLIENT RELATIONSHIP

THE NECESSARY PRESENCE OF THE THE NECESSARY PRESENCE OF THE ATTORNEY’S SECRETARY, LAW CLERK OR ATTORNEY’S SECRETARY, LAW CLERK OR OTHER EMPLOYEE DURING A CONFERENCE IN OTHER EMPLOYEE DURING A CONFERENCE IN THE ATTORNEY’S OFFICE WOULD NOT CAUSE THE ATTORNEY’S OFFICE WOULD NOT CAUSE A COURT TO HOLD THAT THE A COURT TO HOLD THAT THE COMMUNICATIONS WERE NOT PRIVILEGEDCOMMUNICATIONS WERE NOT PRIVILEGED

1111

LIMITS OF THE ATTORNEY-CLIENT LIMITS OF THE ATTORNEY-CLIENT PRIVILEGEPRIVILEGE

THERE ARE LIMITS TO THE ATTORNEY-CLIENT THERE ARE LIMITS TO THE ATTORNEY-CLIENT PRIVILEGE AND IT DOES NOT APPLY TO THE PRIVILEGE AND IT DOES NOT APPLY TO THE FOLLOWING:FOLLOWING: BUT THE PRIVILEGE DOES NOT PROTECT BUT THE PRIVILEGE DOES NOT PROTECT

DISCLOSURES ABOUT FUTURE WRONGDOINGDISCLOSURES ABOUT FUTURE WRONGDOING MOST COURTS HOLD THAT AN ATTORNEY HAS MOST COURTS HOLD THAT AN ATTORNEY HAS

A LEGAL AND ETHICAL OBLIGATION TO DELIVER A LEGAL AND ETHICAL OBLIGATION TO DELIVER PHYSICAL EVIDENCE OF A CRIME TO THE PHYSICAL EVIDENCE OF A CRIME TO THE POLICEPOLICE

THE GENERAL RULE IS THAT THE ATTORNEY-THE GENERAL RULE IS THAT THE ATTORNEY-CLIENT PRIVILEGE DOES NOT PROTECT THE CLIENT PRIVILEGE DOES NOT PROTECT THE NAME AND IDENTITY OF A CLIENT AND THE NAME AND IDENTITY OF A CLIENT AND THE AMOUNT OF THE ATTORNEY FEEAMOUNT OF THE ATTORNEY FEE

1212

THE HUSBAND-WIFE PRIVILEGETHE HUSBAND-WIFE PRIVILEGE

A SPOUSE COULD NOT BE FORCED TO TESTIFY A SPOUSE COULD NOT BE FORCED TO TESTIFY AGAINST THE OTHER SPOUSEAGAINST THE OTHER SPOUSE

ALL STATES AND FEDERAL GONVERNMENT USE ALL STATES AND FEDERAL GONVERNMENT USE THE THE HUSBAND-WIFE PRIVILEGEHUSBAND-WIFE PRIVILEGE (ALSO KNOWN (ALSO KNOWN AS THE AS THE MARITAL PRIVILEGEMARITAL PRIVILEGE))

THE REQUIREMENTS THAT MUST EXIST TO USE THE REQUIREMENTS THAT MUST EXIST TO USE THE PRIVILEGE IN FEDERAL COURTS ARE:THE PRIVILEGE IN FEDERAL COURTS ARE: THE MARITAL CONFIDENTIAL THE MARITAL CONFIDENTIAL

COMMUNICATIONS PRIVILEGE COMMUNICATIONS PRIVILEGE PROHIBITS TESTIMONY REGARDING PROHIBITS TESTIMONY REGARDING PRIVATE INTRA-SPOUSAL PRIVATE INTRA-SPOUSAL COMMUNICATIONS AND EXTENDS ONLY COMMUNICATIONS AND EXTENDS ONLY TO WORDS OR ACTS THAT ARE TO WORDS OR ACTS THAT ARE INTENDED AS A COMMUNICATION TO INTENDED AS A COMMUNICATION TO THE OTHER SPOUSETHE OTHER SPOUSE

1313

THE HUSBAND-WIFE PRIVILEGE THE HUSBAND-WIFE PRIVILEGE (Cont.)(Cont.)

THE COMMUNICATION MUST ALSO OCCUR THE COMMUNICATION MUST ALSO OCCUR DURING A TIME WHEN THE MARRIAGE IS DURING A TIME WHEN THE MARRIAGE IS VALID UNDER STATE LAW AND THE COUPLE VALID UNDER STATE LAW AND THE COUPLE IS NOT PERMANENTLY SEPARATEDIS NOT PERMANENTLY SEPARATED

THE COMMUNICATION MUST BE MADE IN THE COMMUNICATION MUST BE MADE IN CONFIDENCE; IN OTHER WORDS, IT CANNOT CONFIDENCE; IN OTHER WORDS, IT CANNOT BE MADE IN THE PRESENCE OF A THIRD BE MADE IN THE PRESENCE OF A THIRD PARTY AND THE COMMUNICATING SPOUSE PARTY AND THE COMMUNICATING SPOUSE CANNOT INTEND FOR IT TO BE PASSED ON CANNOT INTEND FOR IT TO BE PASSED ON TO OTHERSTO OTHERS

1414

PARTNERSHIP-IN-CRIME PARTNERSHIP-IN-CRIME EXCEPTION TO THE HUSBAND-EXCEPTION TO THE HUSBAND-

WIFE PRIVILEGEWIFE PRIVILEGE THE HUSBAND-WIFE PRIVILEGE DOES NOT THE HUSBAND-WIFE PRIVILEGE DOES NOT

EXTEND TO SITUATIONS WHERE THE WIFE AND EXTEND TO SITUATIONS WHERE THE WIFE AND THE HUSBAND ARE COMMITTING A CRIME THE HUSBAND ARE COMMITTING A CRIME TOGETHERTOGETHER

EXAMPLES OF THE EXAMPLES OF THE PARTNERSHIP-IN-CRIMEPARTNERSHIP-IN-CRIME EXCEPTIONEXCEPTION (ALSO KNOWN AS THE (ALSO KNOWN AS THE JOINT-JOINT-CRIMINAL-PARTICIPATIONCRIMINAL-PARTICIPATION) TO THE HUSBAND-) TO THE HUSBAND-WIFE PRIVILEGE ARE:WIFE PRIVILEGE ARE: BOTH THE WIFE AND HUSBAND WERE INVOLVED IN BOTH THE WIFE AND HUSBAND WERE INVOLVED IN

GROWING MARIJUANAGROWING MARIJUANA WHERE BOTH SPOUSES WERE INVOLVED IN WHERE BOTH SPOUSES WERE INVOLVED IN

TRAFFICKING COCAINETRAFFICKING COCAINE WHEN THE HUSBAND RAN OFF WITH HIS SECRETARY, WHEN THE HUSBAND RAN OFF WITH HIS SECRETARY,

THE ANGRY WIFE PROVIDED THE INTERNAL REVENUE THE ANGRY WIFE PROVIDED THE INTERNAL REVENUE SERVICE WITH INFORMATION OF CRIMINAL TAX SERVICE WITH INFORMATION OF CRIMINAL TAX EVASIONEVASION

1515

WHEN ONE SPOUSE COMMITS CRIMES WHEN ONE SPOUSE COMMITS CRIMES AGAINST THE OTHER SPOUSE OR CHILDRENAGAINST THE OTHER SPOUSE OR CHILDREN

SPOUSES CAN TESTIFY IN CRIMINAL COURTS SPOUSES CAN TESTIFY IN CRIMINAL COURTS AND DIVORCE COURTS OF BEATING AND AND DIVORCE COURTS OF BEATING AND OTHER VIOLENCE EITHER AGAINST THE OTHER VIOLENCE EITHER AGAINST THE SPOUSE OR CHILDRENSPOUSE OR CHILDREN

SOME STATES LIMIT THISE EXCEPTION TO SOME STATES LIMIT THISE EXCEPTION TO PERSONAL VIOLENCE COMMITTED AGAINST PERSONAL VIOLENCE COMMITTED AGAINST THE VICTIM SPOUSETHE VICTIM SPOUSE

1616

THE PHYSICIAN-PATIENT THE PHYSICIAN-PATIENT PRIVILEGEPRIVILEGE

THE THE PHYSICIAN-PATIENT PRIVILEGEPHYSICIAN-PATIENT PRIVILEGE DID NOT DID NOT EXIST AT COMMON LAW AND THEREFORE EXIST AT COMMON LAW AND THEREFORE EXISTS ONLY IN STATES THAT HAVE CREATED EXISTS ONLY IN STATES THAT HAVE CREATED SUCH A PRIVILEGE BY STATUTESSUCH A PRIVILEGE BY STATUTES

IT IS CONSIDERED TO BE A VERY LIMITED IT IS CONSIDERED TO BE A VERY LIMITED PRIVILEGE SUBJECTED TO THE INTERPRETATION PRIVILEGE SUBJECTED TO THE INTERPRETATION OF THE STATUTES OF EACH STATEOF THE STATUTES OF EACH STATE

IT IS FOR THE PROTECTION OF THE IT IS FOR THE PROTECTION OF THE PATIENT NOT THE PHYSICIANPATIENT NOT THE PHYSICIAN

IT MAY BE WAIVED BY THE PATIENT OR A IT MAY BE WAIVED BY THE PATIENT OR A REPRESENTATIVE OF THE PATIENTREPRESENTATIVE OF THE PATIENT

WHETHER THE PRIVILEGE EXISTS AFTER THE WHETHER THE PRIVILEGE EXISTS AFTER THE DEATH OF THE PATIENT WOULD DEPEND UPON DEATH OF THE PATIENT WOULD DEPEND UPON THE LAWS AND COURT RULINGS OF THE STATETHE LAWS AND COURT RULINGS OF THE STATE

1717

THE REQUIREMENT OF THE THE REQUIREMENT OF THE PHYSICIAN-PATIENT PHYSICIAN-PATIENT

RELATIONSHIPRELATIONSHIP FOR THE PRIVILEGE TO EXIST, THE PATIENT FOR THE PRIVILEGE TO EXIST, THE PATIENT

MUST HAVE CONSULTED THE PHYSICIAN FOR MUST HAVE CONSULTED THE PHYSICIAN FOR TREATMENT OR DIAGNOSIS FOR POSSIBLE TREATMENT OR DIAGNOSIS FOR POSSIBLE TREATMENTTREATMENT

IF THE PHYSICIAN CALLS IN OTHER MEDICAL IF THE PHYSICIAN CALLS IN OTHER MEDICAL DOCTORS TO AID IN THE TREATMENT OR DOCTORS TO AID IN THE TREATMENT OR DIAGNOSIS, ANY DISCLOSURES MADE TO ANY DIAGNOSIS, ANY DISCLOSURES MADE TO ANY OF THE PHYSICIANS ARE ALSO PRIVILEGEDOF THE PHYSICIANS ARE ALSO PRIVILEGED

IT DOES NOT APPLY WHEN A SUSPECT OR A IT DOES NOT APPLY WHEN A SUSPECT OR A DEFENDANT IS BEING EXAMINED AT THE DEFENDANT IS BEING EXAMINED AT THE REQUEST OF A COURT, A LAW ENFORCEMENT REQUEST OF A COURT, A LAW ENFORCEMENT AGENCY OR A PROSECUTORAGENCY OR A PROSECUTOR

1818

THE PSYCHOTHERAPIST-PATIENT THE PSYCHOTHERAPIST-PATIENT PRIVILEGEPRIVILEGE

NO NO PSYCHOTHERAPIST-PATIENT PRIVILEGEPSYCHOTHERAPIST-PATIENT PRIVILEGE EXISTED AT COMMON LAW, MANY STATES HAVE EXISTED AT COMMON LAW, MANY STATES HAVE CREATED THIS PRIVILEGE BY STATUTECREATED THIS PRIVILEGE BY STATUTE

THE PATIENT WOULD HAVE TO SEEK TREATMENT THE PATIENT WOULD HAVE TO SEEK TREATMENT OR DIAGNOSIS OF A LICENSED PSYCHOTHERAPIST OR DIAGNOSIS OF A LICENSED PSYCHOTHERAPIST FOR TREATMENT OF MENTAL OR EMOTIONAL FOR TREATMENT OF MENTAL OR EMOTIONAL CONDITIONS, INCLUDING DRUG ADDICTIONCONDITIONS, INCLUDING DRUG ADDICTION

THE CONDITIONS AND LIMITATIONS OF THIS THE CONDITIONS AND LIMITATIONS OF THIS PRIVILEGE ARE SIMILAR TO THE PHYSICIAN-PRIVILEGE ARE SIMILAR TO THE PHYSICIAN-PATIENT PRIVILEGEPATIENT PRIVILEGE

THE PRIVILEGE IS NOT AVAILABLE WHERE THE THE PRIVILEGE IS NOT AVAILABLE WHERE THE PATIENT IS CHARGED WITH CHILD SEXUAL ABUSEPATIENT IS CHARGED WITH CHILD SEXUAL ABUSE

1919

THE “DANGEROUS PATIENT” THE “DANGEROUS PATIENT” EXCEPTION TO THE EXCEPTION TO THE

PSYCHOTHERAPIST-PATIENT PSYCHOTHERAPIST-PATIENT PRIVILEGEPRIVILEGE

IN 1976 WITH THE CASE OF IN 1976 WITH THE CASE OF TARASOFF v. TARASOFF v. REGENTS OF THE UNIVERSITY OF REGENTS OF THE UNIVERSITY OF CALIFORNIACALIFORNIA, STATES BEGAN ADOPTING A , STATES BEGAN ADOPTING A “DUTY TO PROTECT” RULE“DUTY TO PROTECT” RULE

ONCE A PSYCHOTHERAPIST DISCOVERS A ONCE A PSYCHOTHERAPIST DISCOVERS A THREAT THAT A PATIENT POSES A SERIOUS THREAT THAT A PATIENT POSES A SERIOUS THREAT TO A THIRD PERSON, THE THREAT TO A THIRD PERSON, THE PSYCHOTHERAPIST MUST EXERCISE REASONABLE PSYCHOTHERAPIST MUST EXERCISE REASONABLE EFFORTS TO PROTECT THAT PERSONEFFORTS TO PROTECT THAT PERSON

CALIFORNIA HAS ADOPTED AS PART OF ITS CALIFORNIA HAS ADOPTED AS PART OF ITS EVIDENCE CODE AN EXCEPTION TO THE EVIDENCE CODE AN EXCEPTION TO THE PSYCHOTHERAPIST-PATIENT PRIVILEGE THAT PSYCHOTHERAPIST-PATIENT PRIVILEGE THAT COMMUNICATIONS BY A DANGEROUS PATIENT COMMUNICATIONS BY A DANGEROUS PATIENT ARE NOT PRIVILEGEDARE NOT PRIVILEGED

2020

THE SEXUAL ASSAULT COUNSELORS’ THE SEXUAL ASSAULT COUNSELORS’ PRIVILEGE AND PRIVILEGES COVERING PRIVILEGE AND PRIVILEGES COVERING

OTHER COUNSELORSOTHER COUNSELORS STATES OFTEN HAVE STATUTES STATES OFTEN HAVE STATUTES

PROTECTING PRIVATE COMMUNICATIONS PROTECTING PRIVATE COMMUNICATIONS OF PERSONS RECEIVING COUNSELINGOF PERSONS RECEIVING COUNSELING

THERE IS AN THERE IS AN ABSOLUTE PRIVILEGEABSOLUTE PRIVILEGE PROTECTING NOT ONLY TESTIMONY BUT PROTECTING NOT ONLY TESTIMONY BUT ALSO THE PRODUCTION OF DOCUMENTS, ALSO THE PRODUCTION OF DOCUMENTS, FROM THE FROM THE SEXUALSEXUAL ASSAULT COUNSELORASSAULT COUNSELOR, , COVERING THE HISTORY OF PERSONS COVERING THE HISTORY OF PERSONS PROTECTED BY THE PRIVILEGEPROTECTED BY THE PRIVILEGE

2121

THE CLERGY-PENITENT PRIVILEGETHE CLERGY-PENITENT PRIVILEGE

ABOUT TWO-THIRDS OF THE STATES HAVE ABOUT TWO-THIRDS OF THE STATES HAVE STATUTES DEFINING THE STATUTES DEFINING THE CLERGY-PENITNETCLERGY-PENITNET PRIVILEGEPRIVILEGE, WITH A FEW OTHER STATES , WITH A FEW OTHER STATES RECOGNIZING THE PRIVILEGE BY COURT RECOGNIZING THE PRIVILEGE BY COURT DECISIONSDECISIONS

A CLERGYPERSON WOULD NOT HAVE TO BE A CLERGYPERSON WOULD NOT HAVE TO BE ENGAGED FULL TIME IN THE PROFESSION, BUT ENGAGED FULL TIME IN THE PROFESSION, BUT THE DEFINITIONS ARE NOT SO BROAD TO THE DEFINITIONS ARE NOT SO BROAD TO INCLUDE ALL SELF-DENOMINATED “MINISTERS”INCLUDE ALL SELF-DENOMINATED “MINISTERS”

THE PRIVILEGE ESTABLISHES A LEGAL THE PRIVILEGE ESTABLISHES A LEGAL PROTECTION AGAINST BEING FORCED TO PROTECTION AGAINST BEING FORCED TO TESTIFY ON A WITNESS STAND AS TO TESTIFY ON A WITNESS STAND AS TO CONFIDENTIAL DISCLOSURES MADE TO THEMCONFIDENTIAL DISCLOSURES MADE TO THEM

2222

THE PRIVILEGE NOT TO REVEAL THE PRIVILEGE NOT TO REVEAL THE SOURCE OF INFORMATIONTHE SOURCE OF INFORMATION

THE NEWSPERSON USUALLY CONTENDS THAT THE NEWSPERSON USUALLY CONTENDS THAT THE THE NEWS REPORTER’S PRIVILEGENEWS REPORTER’S PRIVILEGE, BASED ON , BASED ON THE FIRST AMENDMENT PROVIDES A PRIVILEGE THE FIRST AMENDMENT PROVIDES A PRIVILEGE AGAINST SUCH DISCLOSUREAGAINST SUCH DISCLOSURE

THE U.S. SUPREME COURT HAS HELD IT DID NOTTHE U.S. SUPREME COURT HAS HELD IT DID NOT THERE WAS NO GENERALLY RECOGNIZED THERE WAS NO GENERALLY RECOGNIZED

PRIVILEGE AT COMMON LAW, BUT MOST STATES PRIVILEGE AT COMMON LAW, BUT MOST STATES HAVE ENACTED SUCH A PRIVILEGE BY STATUTEHAVE ENACTED SUCH A PRIVILEGE BY STATUTE

UNLESS A STATE HAS A STATUTE OF THIS TYPE, UNLESS A STATE HAS A STATUTE OF THIS TYPE, NEWS REPORTERS HAVE NO GENERAL FIRST NEWS REPORTERS HAVE NO GENERAL FIRST AMENDMENT PRIVILEGE AND RIGHT NOT TO AMENDMENT PRIVILEGE AND RIGHT NOT TO REVEAL SOURCES OF NEWS ARTICLES WHEN REVEAL SOURCES OF NEWS ARTICLES WHEN ORDERED BY A COURTORDERED BY A COURT

2323

THE PARENT-CHILD PRIVILEGETHE PARENT-CHILD PRIVILEGE

THE 7THE 7THTH CIRCUIT COURT OF APPEALS CIRCUIT COURT OF APPEALS REVIEWED THESE CASES AND FOUND THAT REVIEWED THESE CASES AND FOUND THAT ONLY ONE FEDERAL TRIAL AND ONLY ONE ONLY ONE FEDERAL TRIAL AND ONLY ONE STATE APPELLATE COURT HAVE RECOGNIZED STATE APPELLATE COURT HAVE RECOGNIZED SOME TYPE OF SOME TYPE OF PARENT-CHILD PRIVILEGEPARENT-CHILD PRIVILEGE

MOST COURTS HAVE REFUSED TO RECOGNIZE MOST COURTS HAVE REFUSED TO RECOGNIZE THIS PRIVILEGETHIS PRIVILEGE

WHEN RECOGNIZED, THE PRIVILEGES APPLY WHEN RECOGNIZED, THE PRIVILEGES APPLY ONLY TO PREVENT THE USE OF TESTIMONY IN ONLY TO PREVENT THE USE OF TESTIMONY IN A JUDICIAL PROCEEDINGA JUDICIAL PROCEEDING

2424

THE GOVERNMENT’S PRIVILEGE THE GOVERNMENT’S PRIVILEGE NOT TO REVEAL GOVERNMENT NOT TO REVEAL GOVERNMENT

SECRETSSECRETS THE PRIVILEGE CONCERNING THE IDENTITY OF THE PRIVILEGE CONCERNING THE IDENTITY OF

INFORMANTSINFORMANTS TO ENCOURAGE PEOPLE TO PROVIDE INFORMATION, TO ENCOURAGE PEOPLE TO PROVIDE INFORMATION,

GOVERNMENTS MUST BE ABLE TO ASSURE THOSE GOVERNMENTS MUST BE ABLE TO ASSURE THOSE PEOPLE PROVIDING THE INFORMATION THAT THEIR PEOPLE PROVIDING THE INFORMATION THAT THEIR IDENTITY WILL NOT BE DISCLOSEDIDENTITY WILL NOT BE DISCLOSED

THE COMMON LAW HAS ALWAYS RECOGNIZED THE THE COMMON LAW HAS ALWAYS RECOGNIZED THE INFORMANT’S PRIVILEGEINFORMANT’S PRIVILEGE AS AN ESSENTIAL AID TO AS AN ESSENTIAL AID TO LAW ENFORCMENTLAW ENFORCMENT

MANY STATES HAVE ENACTED STATUTES DEFINING MANY STATES HAVE ENACTED STATUTES DEFINING THE PRIVILEGE, WHILE OTHER STATES AND THE THE PRIVILEGE, WHILE OTHER STATES AND THE FEDERAL GOVERNMENT USE THE PRIVILEGE IN ITS FEDERAL GOVERNMENT USE THE PRIVILEGE IN ITS COMMON LAW FORMCOMMON LAW FORM

THE LIMITS TO THE INFORMANT’S PRIVILEGETHE LIMITS TO THE INFORMANT’S PRIVILEGE

2525

THE GOVERNMENT’S PRIVILEGE NOT TO THE GOVERNMENT’S PRIVILEGE NOT TO REVEAL GOVERNMENT SECRETS (Cont.)REVEAL GOVERNMENT SECRETS (Cont.)

THE INFORMANT’S PRIVILEGE IS NOT AN THE INFORMANT’S PRIVILEGE IS NOT AN ABSOLUTE PRIVILEGE AND MUST GIVE WAY ABSOLUTE PRIVILEGE AND MUST GIVE WAY WHEN THERE IS A COMPELLING NEED TO WHEN THERE IS A COMPELLING NEED TO PROTECT THE RIGHTS OF THE ACCUSEDPROTECT THE RIGHTS OF THE ACCUSED

IF THE INFORMANT WAS AT THE SCENE OF IF THE INFORMANT WAS AT THE SCENE OF THE CRIME OR PARTICIPATED IN THE THE CRIME OR PARTICIPATED IN THE CRIME, COURTS HOLD THAT THE CRIME, COURTS HOLD THAT THE INFORMANT’S IDENTITY MUST BE INFORMANT’S IDENTITY MUST BE DISCLOSED TO THE DEFENSE LAWYERDISCLOSED TO THE DEFENSE LAWYER

WHEN DRUGS ARE FOUND AND THE WHEN DRUGS ARE FOUND AND THE DEFENDANTS CHARGED, THEY MAY DEFENDANTS CHARGED, THEY MAY DEMAND THE NAME OF THE INFORMANT TODEMAND THE NAME OF THE INFORMANT TO JUDGE THE ACCURACY OF THE SEARCH JUDGE THE ACCURACY OF THE SEARCH WARRANTWARRANT

2626

Informant’s IdentityInformant’s Identity

IF THE IDENTITY OF AN INFORMANT IS IF THE IDENTITY OF AN INFORMANT IS ORDERED BY A COURT, THE ORDERED BY A COURT, THE FOLLOWING OPTIONS ARE AVAILABLE:FOLLOWING OPTIONS ARE AVAILABLE: DROP THE CRIMINAL CHARGE DROP THE CRIMINAL CHARGE AGAINST THE DEFENDANT, WHICH AGAINST THE DEFENDANT, WHICH MEANS THAT THE DEFENSE HAS WON MEANS THAT THE DEFENSE HAS WON THEIR CASE BECAUSE THIS IS WHAT THEIR CASE BECAUSE THIS IS WHAT THE DEFENSE LAWYER SEEKSTHE DEFENSE LAWYER SEEKS

DISCLOSE THE IDENTITY OF THE DISCLOSE THE IDENTITY OF THE INFORMANT IF THIS IS PRACTICAL INFORMANT IF THIS IS PRACTICAL AND GO TO TRIAL, POSSIBLY USING AND GO TO TRIAL, POSSIBLY USING THE INFORMANT AS A WITNESSTHE INFORMANT AS A WITNESS

2727

THE GOVERNMENT’S PRIVILEGE NOT TO THE GOVERNMENT’S PRIVILEGE NOT TO REVEAL GOVERNMENT SECRETS (Cont.)REVEAL GOVERNMENT SECRETS (Cont.)

THE THE GOVERNMENT’S PRIVILEGEGOVERNMENT’S PRIVILEGE NOT TO NOT TO DISCLOSE MILITARY OF DIPLOMATIC DISCLOSE MILITARY OF DIPLOMATIC SECRESTS VITAL TO NATIONAL SECURITYSECRESTS VITAL TO NATIONAL SECURITY THE U.S. CONGRESS ENACTED THE THE U.S. CONGRESS ENACTED THE

CLASSIFIED INFORMATION PROCEDURES ACT CLASSIFIED INFORMATION PROCEDURES ACT WHICH RECOGNIZES THE POWER OF THE WHICH RECOGNIZES THE POWER OF THE EXECUTIVE BRANCH OF THE FEDERAL EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT TO DETERMINE WHETHER GOVERNMENT TO DETERMINE WHETHER CLASSIFIED INFORMATION SHOULD BE CLASSIFIED INFORMATION SHOULD BE DISCLOSED IN CRIMINAL OR CIVIL TRIALSDISCLOSED IN CRIMINAL OR CIVIL TRIALS

THE PRESIDENT’S PRIVILEGE OF THE PRESIDENT’S PRIVILEGE OF CONFIDENTIALITYCONFIDENTIALITY

2828

THE GOVERNMENT’S PRIVILEGE NOT TO THE GOVERNMENT’S PRIVILEGE NOT TO REVEAL GOVERNMENT SECRETS (Cont.)REVEAL GOVERNMENT SECRETS (Cont.)

CONFIDENTIAL COMMUNICATIONS BETWEEN THE PRESIDENT AND CONFIDENTIAL COMMUNICATIONS BETWEEN THE PRESIDENT AND THE PRESIDENT’S IMMEDIATE ADVISORS:THE PRESIDENT’S IMMEDIATE ADVISORS: A PRESIDENT AND THOSE WHO ASSIST HIM MUST BE A PRESIDENT AND THOSE WHO ASSIST HIM MUST BE

FREE TO EXPLORE ALTERNATIVES IN THE PROCESS OF FREE TO EXPLORE ALTERNATIVES IN THE PROCESS OF SHAPING POLICIES AN MAKING DECISIONS AND TO DO SHAPING POLICIES AN MAKING DECISIONS AND TO DO SO IN A WAY MANY WOULD BE WILLING TO EXPRESS SO IN A WAY MANY WOULD BE WILLING TO EXPRESS EXCEPT PRIVATELYEXCEPT PRIVATELY

THESE ARE THE CONSIDERATIONS JUSTIFYING A THESE ARE THE CONSIDERATIONS JUSTIFYING A PRESUMPTIVE PRIVILEGE FOR PRESIDENTIAL PRESUMPTIVE PRIVILEGE FOR PRESIDENTIAL COMMUNICATIONSCOMMUNICATIONS

THE PRIVILEGE IS FUNDAMENTAL TO THE OPERATION OF THE PRIVILEGE IS FUNDAMENTAL TO THE OPERATION OF GOVERNMENT AND INEXTRICABLY ROOTED IN THE GOVERNMENT AND INEXTRICABLY ROOTED IN THE SEPARATION OF POWERS UNDER THE CONSTITUTIONSEPARATION OF POWERS UNDER THE CONSTITUTION

THE COURT HELD THAT THE PRIVILEGE IS A QUALIFIED THE COURT HELD THAT THE PRIVILEGE IS A QUALIFIED PRIVILEGE AND WOULD GIVE WAY SHOULD A PARTY TO PRIVILEGE AND WOULD GIVE WAY SHOULD A PARTY TO A LEAGAL ACTION SHOW A GREAT NEED FOR RELEVANT A LEAGAL ACTION SHOW A GREAT NEED FOR RELEVANT EVIDENCE THAT IS PROTECTED BY THE PRIVILEGEEVIDENCE THAT IS PROTECTED BY THE PRIVILEGE

2929

THE GOVERNMENT’S PRIVILEGE NOT TO THE GOVERNMENT’S PRIVILEGE NOT TO REVEAL GOVERNMENT SECRETS (Cont.)REVEAL GOVERNMENT SECRETS (Cont.)

THE SECRECY OF GRAND JURY PROCEEDINGS THE SECRECY OF GRAND JURY PROCEEDINGS AS A PRIVILEGEAS A PRIVILEGE THE FEDERAL RULES OF CRIMINAL PROCEDURE THE FEDERAL RULES OF CRIMINAL PROCEDURE

FORBIDS DISCLOSURE OF “MATTERS FORBIDS DISCLOSURE OF “MATTERS OCCURING BEFORE A GRAND JURY” AND OCCURING BEFORE A GRAND JURY” AND PROVIDES THAT VIOLATIONS CAN BE PROVIDES THAT VIOLATIONS CAN BE PUNISHED AS CONTEMPT OF COURT (RULE PUNISHED AS CONTEMPT OF COURT (RULE 6[e])6[e])

ACCORDING TO THE ACCORDING TO THE GRAND JURY SECRECYGRAND JURY SECRECY REQUIREMENTSREQUIREMENTS, THOSE SERVING ON A GRAND JURY , THOSE SERVING ON A GRAND JURY CANNOT DISCLOSE PROCEEDINGS AND CANNOT DISCLOSE PROCEEDINGS AND DELIBERATIONS BY THAT BODYDELIBERATIONS BY THAT BODY

SOME OF THE REASONS GIVEN FOR THE HISTORIC SOME OF THE REASONS GIVEN FOR THE HISTORIC USE OF SECRECY ARE:USE OF SECRECY ARE:

TO ENCOURAGE AND PROTECT THE INDEPENDENCE AND TO ENCOURAGE AND PROTECT THE INDEPENDENCE AND FREEDOM OF DELIBERATIONS OF GRAND JURIESFREEDOM OF DELIBERATIONS OF GRAND JURIES

TO PROTECT THE REPUTATIONS OF PEOPLE WHO ARE NOT TO PROTECT THE REPUTATIONS OF PEOPLE WHO ARE NOT INDICTED FOR CRIMINAL OFFENSES BUT WERE CONSIDEREDINDICTED FOR CRIMINAL OFFENSES BUT WERE CONSIDERED

3030

THE GOVERNMENT’S PRIVILEGE NOT TO THE GOVERNMENT’S PRIVILEGE NOT TO REVEAL GOVERNMENT SECRETS (Cont.)REVEAL GOVERNMENT SECRETS (Cont.)

TO PREVENT PEOPLE WHO ARE TO BE TO PREVENT PEOPLE WHO ARE TO BE INDICTED FROM FLEEING BECAUSE THEY INDICTED FROM FLEEING BECAUSE THEY HAD INFORMATION OF THE COMING HAD INFORMATION OF THE COMING CRIMINAL CHARGESCRIMINAL CHARGES

TO ENCOURAGETO ENCOURAGE WITNESSES TO TESTIFY WITNESSES TO TESTIFY FREELYFREELY

TO ENCOURAGE MEMBERS OF THE TO ENCOURAGE MEMBERS OF THE GRAND JURY TO DELIBERATE FREELY GRAND JURY TO DELIBERATE FREELY KNOWING THAT WHAT WAS SAID WILL KNOWING THAT WHAT WAS SAID WILL NOT BE MADE PUBLICNOT BE MADE PUBLIC