(9) Privileged Communications

(9) Privileged Communications - CJ1123 Criminal Evidence...

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CJ1123 Criminal Evidence and Procedure Chapter 9: Privileged Communications Privileged Communications 9.1 Basis for Privilege Legal system operates on the basis that what we say can be used against us Well known exception – self incrimination (5thA) Another major exception – privileged communications What is the logic behind privilege? Certain relationships where it is necessary to maintain confidential and open communications Ex marriage Along with this rule, comes the corresponding rule that the person who invokes privilege can not be punished for doing so In order to use privilege must show two things: 1. there must be a confidential communication 2. there must be an appropriate relationship bt the two parties that est the privilege the rules of privilege do not only apply to oral communications but written communications as well how do you show confidentiality? Two people exclude everyone else from the room while they talk or they make an effort to not be overheard (if shouting at each other and someone overheard – no privilege) Written materials are considered privileged if stored so that no one else can see them, delivered in a sealed envelope, if sent by fax has a cover sheet stating it is confidential Is it possible to waive (give up) privilege? Done by having the conversation in front of a 3 rd party or revealing it to a 3 rd party Other types of privilege have developed that are not based on the idea that a close relationship requires confidential communication 1. identity of police informants is often considered confidential 2. police personnel records are considered confidential 3. news media can often protect their sources 9.2 Commonly Used Privileges At common law there were few privileges – legislatures have developed new ones 9.3 Attorney-Client Privilege This is firmly established in common law – back to Elizabethan times What is the basis of this privilege? An atty can not properly handle a case without full disclosure of the facts Meridith Spencer Page 1 of 5
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CJ1123 Criminal Evidence and Procedure Chapter 9: Privileged Communications Privilege covers the initial consultation even if the atty is not hired Privilege does not require payment nor does it matter who is paying for the atty Who holds the privilege? Client – the atty can not disclose w/o client’s permission
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This note was uploaded on 06/25/2008 for the course CRJ 152 taught by Professor Spencer during the Spring '05 term at Middlesex CC.

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(9) Privileged Communications - CJ1123 Criminal Evidence...

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