Evidence · Privileges

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MBE Evidence: Privileges

Explore the complexities of evidentiary privileges, their applications and implications in legal proceedings.

Overview

Privileges are rules that allow certain communications to remain confidential and are not subject to disclosure in court. Understanding the scope and limitations of these privileges is crucial for law students preparing for the MBE. Important privileges include attorney-client privilege, spousal privilege, and the physician-patient privilege, each of which has specific elements and exceptions that could significantly affect the outcome of a case.

On the MBE, questions related to privileges often test not only the knowledge of what constitutes a privilege but also the ability to analyze scenarios where the application of such privileges is challenged. Students must be prepared to identify what communications are protected, under which circumstances these protections apply, and to discern between absolute and qualified privileges, as well as any exceptions that may arise, such as in cases of crime-fraud or when the privilege is waived.

Key Rules
  1. 1. The attorney-client privilege protects confidential communications between an attorney and their client for the purpose of obtaining legal advice.
  2. 2. The spousal privilege allows a person to refuse to testify against their spouse in a criminal proceeding.
  3. 3. The physician-patient privilege protects communications between a patient and their doctor in most jurisdictions.
  4. 4. Exceptions to privileges must be carefully considered, such as the crime-fraud exception to the attorney-client privilege.
  5. 5. Waiver of a privilege can occur if a party voluntarily discloses information covered by the privilege.
Common Question Patterns
  • Identify whether a communication is protected by a specific privilege.
  • Determine if a privilege has been waived and the implications of that waiver.
  • Evaluate scenarios where exceptions to privileges apply.
Practice Questions

1. A client confides in her attorney that she plans to commit a crime. Can the attorney disclose this information?

A. A) Yes, the attorney can disclose because the conversation is confidential.

B. B) No, attorney-client privilege protects all communications.

C. C) No, unless the crime is ongoing.(Correct)

D. D) Yes, if the attorney believes the client is not a threat.

Explanation: The attorney cannot disclose past communications, but under the crime-fraud exception, the attorney may disclose information if the client intends to commit a future crime.

2. In a divorce proceeding, can a spouse refuse to testify about conversations made during marriage?

A. A) Yes, due to spousal privilege.(Correct)

B. B) No, because spousal privilege only applies in criminal cases.

C. C) Yes, but only if the other spouse is not present.

D. D) No, because both spouses must agree to the privilege.

Explanation: Spousal privilege allows one spouse to refuse to testify against the other about confidential communications made during the marriage, even in civil matters.

3. A patient discusses symptoms and medical history with a doctor but later publishes details of the conversation in a book. Can the doctor disclose these details in court?

A. A) Yes, because the patient waived the privilege.(Correct)

B. B) No, because physician-patient privilege is absolute.

C. C) Yes, unless the patient has a valid reason to keep it confidential.

D. D) No, because the privilege still applies despite the publication.

Explanation: By voluntarily disclosing the information to a third party, the patient has likely waived the physician-patient privilege.

4. An attorney is subpoenaed to testify about a client's previous communications. The client claims attorney-client privilege. What must the court determine?

A. A) If the attorney can choose to ignore the subpoena.

B. B) If the privilege was properly asserted and if any exceptions apply.(Correct)

C. C) If the attorney is qualified to testify under the circumstances.

D. D) If the client can provide an alternative to direct testimony.

Explanation: The court must assess the validity of the privilege claim and determine whether any exceptions, like crime-fraud, might negate the privilege.

5. During a deposition, an opposing attorney asks a witness about a private conversation that occurred in front of a mutual friend. The witness refuses to answer, citing privilege. What is the likely outcome?

A. A) The witness must answer, as the privilege only exists between the two parties.

B. B) The witness's refusal is valid under spousal privilege.

C. C) The court may rule in favor of disclosure due to the presence of a third party.(Correct)

D. D) The witness can refuse because the conversation was confidential.

Explanation: Presence of a third party typically negates the privilege, leading the court to compel the witness to answer.

Test-Taking Tips
  • Always identify the specific privilege being asserted and its elements.
  • Consider whether exceptions to the privilege could apply in a given scenario.
  • Be aware of the difference between civil and criminal applications of privileges, as rules may vary.

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