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Review Questions


  1. When considering privileged communications, there are two rules. What are they? What is the rationale for the courts' reluctance to expand the privilege?
  2. What is the rationale for the testimonial privilege that declares some evidence, although relevant, to be inadmissible in criminal cases?
  3. Is the husband-wife privilege the same now as it was 50 years ago? If not, discuss its development. What four tests are applied in claiming the privilege? Does the privilege extend to homosexuals in "spousal relationships?"
  4. State and give examples of three exceptions to the husband-wife privilege.
  5. Does the husband-wife privilege extend to statements made during marriage if the trial takes place after a divorce? Explain. Does the same rule apply if the parties are separated but not divorced?
  6. Briefly state the attorney-client privilege and give the rationale for the privilege.
  7. Name the exceptions to the attorney-client privilege and give the reasons for each exception. What is meant by the crime-fraud exception? Discuss the two-point test that governs this exception. Does the privilege survive the death of the client?
  8. Who has the legal power to assert the attorney-client privilege? Are there any exceptions? Explain.
  9. What is the physician-patient privilege? What is its primary purpose? What are the exceptions? Does the privilege apply to communications with a psychologist? Other relationships? Explain.
  10. Is the rule that a person has a privilege to refuse to disclose confidential communications made to a clergy member a common law rule or a statutory rule? How does this affect the practical application of the rule?
  11. Does the clergy member or the penitent have the right to claim or waive the privilege relating to communications to clergy? Explain.
  12. Under what conditions does the state have the right to withhold from disclosure the identity of persons who furnish information to the police concerning the commission of a crime? Give some examples.
  13. What is the policy basis of the rule that certain state secrets are privileged?
  14. What is the present status of the law relating to the news media-informant privilege?
  15. What is meant by the term shield law, as used in considering the news media-informant privilege? What is the intent behind shield laws? Under what conditions must the privilege give way to countervailing interests?
  16. In Trammel v. United States, the defendant was convicted of importing heroin and conspiring to import heroin. He appealed on the ground that the trial court committed reversible error by allowing his wife to testify against him. What was the decision of the reviewing court in regard to the wife being permitted to testify adversely in a criminal case?
  17. The defendant broke into her ex-husband's house and shot her ex-husband and his girlfriend. The girlfriend was killed and the ex-husband was injured. The defendant was charged with first-degree murder and attempted murder (State v. Hardin). The defendant was convicted of first degree murder and willful injury and appealed. The reviewing court considered and discussed the physician-patient privilege. What did the decision disclose concerning: (1) whether the privilege is a common law privilege or a statutory privilege; (2) the exceptions to the physician-patient privilege; and (3) the right of a defendant to have counsel present at a psychiatric evaluation?
  18. In the case of State v. Demarco, the issue was whether the state may compel discovery of reports prepared by the defendant's expert witness for other clients in unrelated cases. In the discussion, the court considered the application of the attorney client privilege to materials prepared by agents of the attorney retained to aid in the preparation of the case. What is the work product doctrine? Does the attorney client privilege apply when the attorney for the defendant retains a scientific expert to aid in the preparation of the defense? Does the Sixth Amendment right to assistance of counsel have any relationship to the attorney client and work product privileges?