1 Chapter 6 Judicial Notice and Privileges of Witnesses

2 SCIENTIFIC AND TECHNOLOGICAL FACTS RECOGNIZED BY JUDICIAL NOTICE Judicial notice can be taken of a court ruling that a scientific technique was reliable. Judicial notice can be taken of a court ruling that a scientific technique was reliable. An Ohio court of appeals held in the 1973 case of State v. Brock that “courts may take judicial notice of any scientific fact which may be ascertained by reference to a standard dictionary or is of such general knowledge that it is known by any judicial officer” An Ohio court of appeals held in the 1973 case of State v. Brock that “courts may take judicial notice of any scientific fact which may be ascertained by reference to a standard dictionary or is of such general knowledge that it is known by any judicial officer”

3 Courts must be cautious when taking judicial notice as often a particular fact may not be of general knowledge and that a source for the accurate determination of the fact may not be easily found (see State v. Gagnon, N.H., 2007). Courts must be cautious when taking judicial notice as often a particular fact may not be of general knowledge and that a source for the accurate determination of the fact may not be easily found (see State v. Gagnon, N.H., 2007).

4 Frye & Daubert Rules Today, the Frye Rule is used in many states. Today, the Frye Rule is used in many states. This rule essentially says that if the science is generally accepted by the scientific community, the procedure is admissible. This rule essentially says that if the science is generally accepted by the scientific community, the procedure is admissible. The Daubert Rule is more restrictive and is the “Federal” standard although some states do use it instead of Frye. The Daubert Rule is more restrictive and is the “Federal” standard although some states do use it instead of Frye.

5 THE PRIVILEGE AGAINST SELF- INCRIMINATION The Fifth Amendment privilege against self- incrimination is the only privilege that has been incorporated into the U.S. Constitution and the constitutions of many states. The Fifth Amendment privilege against self- incrimination is the only privilege that has been incorporated into the U.S. Constitution and the constitutions of many states. The U.S. Constitution requires “that the government seeking to punish an individual produce the evidence against him by its own independent labor rather than by the cruel, simple expedient of compelling it from his own mouth.” The U.S. Constitution requires “that the government seeking to punish an individual produce the evidence against him by its own independent labor rather than by the cruel, simple expedient of compelling it from his own mouth.”

6 AREAS WHERE THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF- INCRIMINATION DOES NOT APPLY The Fifth Amendment privilege against self- incrimination applies only to evidence of a communicative or testimonial nature. The Fifth Amendment privilege against self- incrimination applies only to evidence of a communicative or testimonial nature. It does not apply when only physical evidence is sought and obtained. It does not apply when only physical evidence is sought and obtained. The privilege against self-incrimination does not apply in the following circumstances: The privilege against self-incrimination does not apply in the following circumstances: The withdrawal of blood and the use of the blood as evidence to show that the defendant was driving a vehicle while intoxicated The withdrawal of blood and the use of the blood as evidence to show that the defendant was driving a vehicle while intoxicated The use of a handwriting exemplar or sample The use of a handwriting exemplar or sample

7 AREAS WHERE THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION DOES NOT APPLY (Cont.) Compelling the accused to exhibit his person for observation, as in a lineup or showup. Compelling the accused to exhibit his person for observation, as in a lineup or showup. To make a voice exemplar or sample. To make a voice exemplar or sample. For identification purposes, to put on a stocking mask at trial and permit a witness to testify as to similarity to the masked robber, or to dye his/her hair to the color it was at the time of the offense. For identification purposes, to put on a stocking mask at trial and permit a witness to testify as to similarity to the masked robber, or to dye his/her hair to the color it was at the time of the offense. A witness could testify that the defendant was compelled to put on a shirt and it fit him. A witness could testify that the defendant was compelled to put on a shirt and it fit him. Where immunity has been granted and the person is compelled to testify or agrees to testify as part of a plea agreement. Where immunity has been granted and the person is compelled to testify or agrees to testify as part of a plea agreement.

8 AREAS WHERE THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION DOES NOT APPLY (Cont.) Where the incrimination is of others and is not self- incrimination. Where the incrimination is of others and is not self- incrimination. Where the public interest in protecting children from abuse outweighs Fifth Amendment privilege. Where the public interest in protecting children from abuse outweighs Fifth Amendment privilege. U.S. Military personnel and law enforcement officers are obligated to report illegal conduct of their fellow officers and military associates accept when the military service person or law enforcement officer had also been a party to the crime. U.S. Military personnel and law enforcement officers are obligated to report illegal conduct of their fellow officers and military associates accept when the military service person or law enforcement officer had also been a party to the crime. Where there has been a voluntary, intelligent waiver of the privilege. Where there has been a voluntary, intelligent waiver of the privilege.

9 Fifth Amendment Problems The privilege against self-incrimination has always applied to criminal cases. The privilege against self-incrimination has always applied to criminal cases. This is controversial, as the witness may also be subject to civil liability if answering questions. This is controversial, as the witness may also be subject to civil liability if answering questions. In addition, not invoking this privilege in state court could lead to prosecution in federal court and vice versa. In addition, not invoking this privilege in state court could lead to prosecution in federal court and vice versa.

10 Another complication occurs in regard to foreign jurisdiction. Another complication occurs in regard to foreign jurisdiction. The Supreme Court held in U.S. v. Balsys (1998) that there was no way to know if a foreign country would force the witness to testify. The Supreme Court held in U.S. v. Balsys (1998) that there was no way to know if a foreign country would force the witness to testify. Therefore, invoking the Fifth would not necessarily protect the witness, but could harm the U.S. government. Therefore, invoking the Fifth would not necessarily protect the witness, but could harm the U.S. government. So, a witness in this situation could be compelled to testify. So, a witness in this situation could be compelled to testify.

11 RECENT EXAMPLES WHERE THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF- INCRIMINATION DOES APPLY Where the witness insists she is innocent of any crime Where the witness insists she is innocent of any crime To refuse to answer specific questions on a tax return (but not to refuse to file a return altogether) To refuse to answer specific questions on a tax return (but not to refuse to file a return altogether) When a person is questioned by a probation officer, so long as the officer makes it clear that answers to the questions are mandatory, not optional When a person is questioned by a probation officer, so long as the officer makes it clear that answers to the questions are mandatory, not optional Where a defendant remains silent under questioning, the prosecution is prohibited from introducing evidence of that silence at trial Where a defendant remains silent under questioning, the prosecution is prohibited from introducing evidence of that silence at trial

12 THE ATTORNEY-CLIENT PRIVILEGE The purpose of the attorney-client privilege is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice The purpose of the attorney-client privilege is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice Many states have statutes regulating the attorney-client privilege Many states have statutes regulating the attorney-client privilege Other states and the federal government use the principles of common law Other states and the federal government use the principles of common law

13 REQUIREMENTS OF THE ATTORNEY- CLIENT PRIVILEGE The client must seek the professional legal services of an attorney and have the intention of establishing an attorney-client relationship. The client must seek the professional legal services of an attorney and have the intention of establishing an attorney-client relationship. It is generally held that the privilege applies only to confidential communications made within the attorney-client relationship. It is generally held that the privilege applies only to confidential communications made within the attorney-client relationship. The necessary presence of the attorney’s secretary, law clerk, or other employee during a conference in the attorney’s office would not cause a court to hold that the communications were not privileged. The necessary presence of the attorney’s secretary, law clerk, or other employee during a conference in the attorney’s office would not cause a court to hold that the communications were not privileged.

14 LIMITS OF THE ATTORNEY-CLIENT PRIVILEGE There are limits to the attorney-client privilege and it does not apply to the following: There are limits to the attorney-client privilege and it does not apply to the following: Disclosures about future wrongdoing Disclosures about future wrongdoing Physical evidence—most courts hold that an attorney has a legal and ethical obligation to deliver physical evidence of a crime to the police Physical evidence—most courts hold that an attorney has a legal and ethical obligation to deliver physical evidence of a crime to the police The general rule is that the attorney-client privilege does not protect the name and identity of a client or the amount of the attorney fee. The general rule is that the attorney-client privilege does not protect the name and identity of a client or the amount of the attorney fee.

15 Losing the Attorney-Client Privilege This privilege often involves documents or other written materials. This privilege often involves documents or other written materials. The management of these materials by the attorney or client can result in a waiver of the privilege. The management of these materials by the attorney or client can result in a waiver of the privilege. See U.S. v. Ary and In re Grand Jury (Attorney-Client Privilege) D.C. Cir., 2008 in the text. See U.S. v. Ary and In re Grand Jury (Attorney-Client Privilege) D.C. Cir., 2008 in the text.

16 Losing the Attorney-Client Privilege, cont’d The crime-fraud exception was upheld in In re Grand Jury Subpoena (2 nd Cir., 2006), even though the attorney was unaware that the client was seeking advice about committing a crime. The crime-fraud exception was upheld in In re Grand Jury Subpoena (2 nd Cir., 2006), even though the attorney was unaware that the client was seeking advice about committing a crime. The court held that it was the client’s intent. The court held that it was the client’s intent.

17 THE HUSBAND-WIFE PRIVILEGE A spouse can not be forced to testify against the other spouse. A spouse can not be forced to testify against the other spouse. All states and the federal government use the husband-wife privilege (also known as the marital privilege). All states and the federal government use the husband-wife privilege (also known as the marital privilege). The requirements that must exist to use the privilege in federal courts are: The requirements that must exist to use the privilege in federal courts are: The marital confidential communications privilege prohibits testimony regarding private intra-spousal communications and extends only to words or acts that are intended as a communication to the other spouse. The marital confidential communications privilege prohibits testimony regarding private intra-spousal communications and extends only to words or acts that are intended as a communication to the other spouse.

18 THE HUSBAND-WIFE PRIVILEGE (Cont.) The communication must also occur during a time when the marriage is valid under state law and the couple is not permanently separated. The communication must also occur during a time when the marriage is valid under state law and the couple is not permanently separated. The communication must be made in confidence. In other words, it cannot be made in the presence of a third party and the communicating spouse cannot intend for it to be passed on to others. The communication must be made in confidence. In other words, it cannot be made in the presence of a third party and the communicating spouse cannot intend for it to be passed on to others.

19 Husband-Wife Privilege (cont.) However, only the contents of the conversation are protected, not the fact that the communication occurred. However, only the contents of the conversation are protected, not the fact that the communication occurred.

20 PARTNERSHIP-IN-CRIME EXCEPTION TO THE HUSBAND-WIFE PRIVILEGE The husband-wife privilege does not extend to situations where the wife and the husband are committing a crime together. The husband-wife privilege does not extend to situations where the wife and the husband are committing a crime together. Examples of the partnership-in-crime exception (also known as the joint-criminal-participation) to the husband-wife privilege are: Examples of the partnership-in-crime exception (also known as the joint-criminal-participation) to the husband-wife privilege are: Both the wife and husband were involved in growing marijuana Both the wife and husband were involved in growing marijuana Where both spouses were involved in trafficking cocaine Where both spouses were involved in trafficking cocaine When the husband ran off with his secretary and the angry wife provided the Internal Revenue Service with information of criminal tax evasion When the husband ran off with his secretary and the angry wife provided the Internal Revenue Service with information of criminal tax evasion

21 WHEN ONE SPOUSE COMMITS CRIMES AGAINST THE OTHER SPOUSE OR CHILDREN Spouses can testify in criminal courts and divorce courts of beating and other violence either against the spouse or children. Spouses can testify in criminal courts and divorce courts of beating and other violence either against the spouse or children. Some states limit this exception to personal violence committed against the victim spouse. Some states limit this exception to personal violence committed against the victim spouse. At least one state (Kentucky) held that the exception of violence is applied to persons outside the immediate family of the accused. At least one state (Kentucky) held that the exception of violence is applied to persons outside the immediate family of the accused.

22 THE PHYSICIAN-PATIENT PRIVILEGE The physician-patient privilege did not exist at common law and therefore exists only in states that have created such a privilege by statutes. The physician-patient privilege did not exist at common law and therefore exists only in states that have created such a privilege by statutes. It is considered to be a very limited privilege subjected to the interpretation of the statutes of each state. It is considered to be a very limited privilege subjected to the interpretation of the statutes of each state. It is for the protection of the patient, not the physician. It is for the protection of the patient, not the physician. It may be waived by the patient or a representative of the patient. It may be waived by the patient or a representative of the patient. Whether the privilege exists after the death of the patient would depend upon the laws and court rulings of the state. Whether the privilege exists after the death of the patient would depend upon the laws and court rulings of the state.

23 THE REQUIREMENT OF THE PHYSICIAN-PATIENT RELATIONSHIP For the privilege to exist, the patient must have consulted the physician for treatment or diagnosis for possible treatment. For the privilege to exist, the patient must have consulted the physician for treatment or diagnosis for possible treatment. If the physician calls in other medical doctors to aid in the treatment or diagnosis, any disclosures made to any of the physicians are also privileged. If the physician calls in other medical doctors to aid in the treatment or diagnosis, any disclosures made to any of the physicians are also privileged. It does not apply when a suspect or a defendant is being examined at the request of a court, a law enforcement agency, or a prosecutor. It does not apply when a suspect or a defendant is being examined at the request of a court, a law enforcement agency, or a prosecutor.

24 Physician-Patient Relationship, cont. Read State v. Poetschke (Minn. App., 2008) in text for the driving under the influence decision that impacts the physician-patient privilege. Read State v. Poetschke (Minn. App., 2008) in text for the driving under the influence decision that impacts the physician-patient privilege.

25 THE PSYCHOTHERAPIST-PATIENT PRIVILEGE No psychotherapist-patient privilege existed in common law; many states have created this privilege by statute. No psychotherapist-patient privilege existed in common law; many states have created this privilege by statute. The patient would have to seek treatment or diagnosis of a licensed psychotherapist for treatment of mental or emotional conditions, including drug addiction. The patient would have to seek treatment or diagnosis of a licensed psychotherapist for treatment of mental or emotional conditions, including drug addiction. The conditions and limitations of this privilege are similar to the physician-patient privilege. The conditions and limitations of this privilege are similar to the physician-patient privilege. The privilege is not available where the patient is charged with child sexual abuse. The privilege is not available where the patient is charged with child sexual abuse.

26 THE “DANGEROUS PATIENT” EXCEPTION TO THE PSYCHOTHERAPIST-PATIENT PRIVILEGE In 1976 with the case of TARASOFF v. Regents of the University of California, states began adopting a “duty to protect” rule. In 1976 with the case of TARASOFF v. Regents of the University of California, states began adopting a “duty to protect” rule. Once a psychotherapist discovers that a patient poses a serious threat to a third person, the psychotherapist must exercise reasonable efforts to protect that person. Once a psychotherapist discovers that a patient poses a serious threat to a third person, the psychotherapist must exercise reasonable efforts to protect that person. California has, as part of its evidence code, adopted an exception to the psychotherapist-patient privilege that communications by a dangerous patient are not privileged. California has, as part of its evidence code, adopted an exception to the psychotherapist-patient privilege that communications by a dangerous patient are not privileged.

27 THE SEXUAL ASSAULT COUNSELORS’ PRIVILEGE AND PRIVILEGES COVERING OTHER COUNSELORS States often have statutes protecting private communications of persons receiving counseling. States often have statutes protecting private communications of persons receiving counseling. There is an absolute privilege protecting not only testimony but also the production of documents from the sexual assault counselor, covering the history of persons protected by the privilege. There is an absolute privilege protecting not only testimony but also the production of documents from the sexual assault counselor, covering the history of persons protected by the privilege.

28 THE CLERGY-PENITENT PRIVILEGE About two-thirds of the states have statutes defining the clergy-penitent privilege, with a few other states recognizing the privilege by court decisions. About two-thirds of the states have statutes defining the clergy-penitent privilege, with a few other states recognizing the privilege by court decisions. A clergyperson would not have to be engaged full time in the profession, but the definitions are not so broad to include all self-denominated “ministers.” A clergyperson would not have to be engaged full time in the profession, but the definitions are not so broad to include all self-denominated “ministers.” The privilege establishes a legal protection against being forced to testify on a witness stand about confidential disclosures made to them. The privilege establishes a legal protection against being forced to testify on a witness stand about confidential disclosures made to them.

29 THE PRIVILEGE NOT TO REVEAL THE SOURCE OF INFORMATION The newsperson usually contends that the news reporter’s privilege, based on the First Amendment, provides a privilege against such disclosure. In 2007, the house of representatives passed a “media shield” law. The newsperson usually contends that the news reporter’s privilege, based on the First Amendment, provides a privilege against such disclosure. In 2007, the house of representatives passed a “media shield” law. The U.S. Supreme Court has held it did not. The U.S. Supreme Court has held it did not. There was no generally recognized privilege at common law, but most states have enacted such a privilege by statute. There was no generally recognized privilege at common law, but most states have enacted such a privilege by statute. Unless a state has a statute of this type, news reporters have no general First Amendment privilege and right not to reveal sources of news articles when ordered by a court. Unless a state has a statute of this type, news reporters have no general First Amendment privilege and right not to reveal sources of news articles when ordered by a court.

30 THE PARENT-CHILD PRIVILEGE The 7 th Circuit Court of Appeals reviewed these cases and found that only one federal trial and only one state appellate court have recognized some type of parent-child privilege. The 7 th Circuit Court of Appeals reviewed these cases and found that only one federal trial and only one state appellate court have recognized some type of parent-child privilege. Most courts have refused to recognize this privilege. Most courts have refused to recognize this privilege. When recognized, the privileges apply only to prevent the use of testimony in a judicial proceeding. When recognized, the privileges apply only to prevent the use of testimony in a judicial proceeding.

31 THE GOVERNMENT’S PRIVILEGE NOT TO REVEAL GOVERNMENT SECRETS The privilege concerning the identity of informants The privilege concerning the identity of informants To encourage people to provide information, governments must be able to assure those people providing the information that their identity will not be disclosed To encourage people to provide information, governments must be able to assure those people providing the information that their identity will not be disclosed The common law has always recognized the informant’s privilege as an essential aid to law enforcement The common law has always recognized the informant’s privilege as an essential aid to law enforcement Many states have enacted statutes defining the privilege, while other states and the federal government use the privilege in its common law form Many states have enacted statutes defining the privilege, while other states and the federal government use the privilege in its common law form The limits to the informant’s privilege The limits to the informant’s privilege

32 THE GOVERNMENT’S PRIVILEGE NOT TO REVEAL GOVERNMENT SECRETS (Cont.) The informant’s privilege is not an absolute privilege and must give way when there is a compelling need to protect the rights of the accused. The informant’s privilege is not an absolute privilege and must give way when there is a compelling need to protect the rights of the accused. If the informant was at the scene of the crime or participated in the crime, courts hold that the informant’s identity must be disclosed to the defense lawyer. If the informant was at the scene of the crime or participated in the crime, courts hold that the informant’s identity must be disclosed to the defense lawyer. When drugs are found and the defendants charged, they may demand the name of the informant to judge the accuracy of the search warrant. When drugs are found and the defendants charged, they may demand the name of the informant to judge the accuracy of the search warrant.

33 Informant’s Identity If the identity of an informant is ordered by a court, the following options are available: If the identity of an informant is ordered by a court, the following options are available: Drop the criminal charge against the defendant, which means that the defense has won their case because this is what the defense lawyer seeks Drop the criminal charge against the defendant, which means that the defense has won their case because this is what the defense lawyer seeks Disclose the identity of the informant; if this is practical and goes to trial, the informant can possibly be a witness Disclose the identity of the informant; if this is practical and goes to trial, the informant can possibly be a witness

34 THE GOVERNMENT’S PRIVILEGE NOT TO REVEAL GOVERNMENT SECRETS (Cont.) The government’s privilege not to disclose military of diplomatic secrets vital to national security The government’s privilege not to disclose military of diplomatic secrets vital to national security The U.S. Congress enacted the Classified Information Procedures Act which recognizes the power of the executive branch of the federal government to determine whether classified information should be disclosed in criminal or civil trials The U.S. Congress enacted the Classified Information Procedures Act which recognizes the power of the executive branch of the federal government to determine whether classified information should be disclosed in criminal or civil trials The President’s privilege of confidentiality The President’s privilege of confidentiality

35 THE GOVERNMENT’S PRIVILEGE NOT TO REVEAL GOVERNMENT SECRETS (Cont.) Confidential communications between the president and the President’s immediate advisors: Confidential communications between the president and the President’s immediate advisors: The President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions, and to do so in a way many would be willing to express except privately The President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions, and to do so in a way many would be willing to express except privately These are the considerations justifying a presumptive privilege for presidential communications These are the considerations justifying a presumptive privilege for presidential communications The privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution The privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution The court held that the privilege is a qualified privilege and would give way should a party to a legal action show a great need for relevant evidence that is protected by the privilege The court held that the privilege is a qualified privilege and would give way should a party to a legal action show a great need for relevant evidence that is protected by the privilege

36 THE GOVERNMENT’S PRIVILEGE NOT TO REVEAL GOVERNMENT SECRETS (Cont.) The secrecy of grand jury proceedings as a privilege The secrecy of grand jury proceedings as a privilege The Federal Rules of Criminal Procedure forbid disclosure of “matters occurring before a grand jury” and provide that violations can be punished as contempt of court (Rule 6[e]). The Federal Rules of Criminal Procedure forbid disclosure of “matters occurring before a grand jury” and provide that violations can be punished as contempt of court (Rule 6[e]). According to the grand jury secrecy requirements, those serving on a grand jury cannot disclose proceedings and deliberations by that body. According to the grand jury secrecy requirements, those serving on a grand jury cannot disclose proceedings and deliberations by that body. Some of the reasons given for the historic use of secrecy are: Some of the reasons given for the historic use of secrecy are: To encourage and protect the independence and freedom of deliberations of grand juries To encourage and protect the independence and freedom of deliberations of grand juries To protect the reputations of people who are not indicted for criminal offenses but were considered To protect the reputations of people who are not indicted for criminal offenses but were considered

37 THE GOVERNMENT’S PRIVILEGE NOT TO REVEAL GOVERNMENT SECRETS (Cont.) To prevent people who are to be indicted from fleeing because they had information of the coming criminal charges To prevent people who are to be indicted from fleeing because they had information of the coming criminal charges To encourage witnesses to testify freely To encourage witnesses to testify freely To encourage members of the grand jury to deliberate freely, knowing that what was said will not be made public To encourage members of the grand jury to deliberate freely, knowing that what was said will not be made public