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.
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 KNOW BY ANY JUDICIAL OFFICER”

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

4. 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 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”

5. 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
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 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

6. 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
TO MAKE A VOICE EXEMPLAR OR SAMPLE
FOR IDENTIFICATION PURPOSES TO PUT ON A STOCKING MASK AT TRIAL TO 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
WHERE IMMUNITY HAS BEEN GRANTED AND THE PERSON IS COMPLELED TO TESTIFY OR AGREES TO TESTIFY AS PART OF A PLEA AGREEMENT

7. 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 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
WHERE THERE HAS BEEN A VOLUNTARY, INTELLIGENT WAIVER OF THE PRIVILEGE

8. RECENT EXAMPLES WHERE THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION DOES APPLY
WHERE THE WITNESS INSISTS SHE IS INNOCENT OF ANY CRIME
TO REFUSE TO ANSWER SPECIFIC QUESTIONS ON A TAX RETURN BUT MAY NOT 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
WHERE A DEFENDANT REMAINS SILENT UNDER QUESTIONING, THE PROSECUTION IS PROHIBITED FROM INTRODUCING EVIDENCE OF THAT SILENCE AT TRIAL

9. 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
MANY STATES HAVE STATUTES REGULATING THE ATTORNEY-CLIENT PRIVILEGE
OTHER STATES, LIKE THE FEDERAL GOVERNMENT, USE THE PRINCIPLES OF COMMON LAW

10. REQUIREMENTS OF THE ATTORNEY-CLIENT PRIVILEGE
THE CLIENT MUST SEEK THE PROFESIONAL 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
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

11. LIMITS OF THE ATTORNEY-CLIENT PRIVILEGE
THERE ARE LIMITS TO THE ATTORNEY-CLIENT PRIVILEGE AND IT DOES NOT APPLY TO THE FOLLOWING:
BUT THE PRIVILEGE DOES NOT PROTECT DISCLOSURES ABOUT FUTURE WRONGDOING
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 AND THE AMOUNT OF THE ATTORNEY FEE

12. THE HUSBAND-WIFE PRIVILEGE
A SPOUSE COULD NOT BE FORCED TO TESTIFY AGAINST THE OTHER SPOUSE
ALL STATES AND FEDERAL GONVERNMENT 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 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

13. 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 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

14. 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
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
WHERE BOTH SPOUSES WERE INVOLVED IN TRAFFICKING COCAINE
WHEN THE HUSBAND RAN OFF WITH HIS SECRETARY, THE ANGRY WIFE PROVIDED THE INTERNAL REVENUE SERVICE WITH INFORMATION OF CRIMINAL TAX EVASION

15. 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
SOME STATES LIMIT THISE EXCEPTION TO PERSONAL VIOLENCE COMMITTED AGAINST THE VICTIM SPOUSE

16. 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
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 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

17. 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
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

18. THE PSYCHOTHERAPIST-PATIENT PRIVILEGE
NO PSYCHOTHERAPIST-PATIENT PRIVILEGE EXISTED AT 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 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

19. 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
ONCE A PSYCHOTHERAPIST DISCOVERS A THREAT THAT A PATIENT POSES A SERIOUS THREAT TO A THIRD PERSON, THE PSYCHOTHERAPIST MUST EXERCISE REASONABLE EFFORTS TO PROTECT THAT PERSON
CALIFORNIA HAS ADOPTED AS PART OF ITS EVIDENCE CODE AN EXCEPTION TO THE PSYCHOTHERAPIST-PATIENT PRIVILEGE THAT COMMUNICATIONS BY A DANGEROUS PATIENT ARE NOT PRIVILEGED

20. THE SEXUAL ASSAULT COUNSELORS’ PRIVILEGE AND PRIVILEGES COVERING OTHER COUNSELORS
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

21. THE CLERGY-PENITENT PRIVILEGE
ABOUT TWO-THIRDS OF THE STATES HAVE STATUTES DEFINING THE CLERGY-PENITNET 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”
THE PRIVILEGE ESTABLISHES A LEGAL PROTECTION AGAINST BEING FORCED TO TESTIFY ON A WITNESS STAND AS TO CONFIDENTIAL DISCLOSURES MADE TO THEM

22. 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
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
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

23. THE PARENT-CHILD PRIVILEGE
THE 7TH 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
WHEN RECOGNIZED, THE PRIVILEGES APPLY ONLY TO PREVENT THE USE OF TESTIMONY IN A JUDICIAL PROCEEDING

24. THE GOVERNMENT’S PRIVILEGE NOT TO REVEAL GOVERNMENT SECRETS
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
THE COMMON LAW HAS ALWAYS RECOGNIZED THE INFORMANT’S PRIVILEGE AS AN ESSENTIAL AID TO LAW ENFORCMENT
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

25. 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
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

26. Informant’s Identity
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
DISCLOSE THE IDENTITY OF THE INFORMANT IF THIS IS PRACTICAL AND GO TO TRIAL, POSSIBLY USING THE INFORMANT AS A WITNESS

27. THE GOVERNMENT’S PRIVILEGE NOT TO REVEAL GOVERNMENT SECRETS (Cont.)
THE GOVERNMENT’S PRIVILEGE NOT TO DISCLOSE MILITARY OF DIPLOMATIC SECRESTS 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 PRESIDENT’S PRIVILEGE OF CONFIDENTIALITY

28. THE GOVERNMENT’S PRIVILEGE NOT TO REVEAL GOVERNMENT SECRETS (Cont.)
CONFIDENTIAL COMMUNICATIONS BETWEEN THE PRESIDENT AND THE PRESIDENT’S IMMEDIATE ADVISORS:
A PRESIDENT AND THOSE WHO ASSIST HIM MUST BE FREE TO EXPLORE ALTERNATIVES IN THE PROCESS OF SHAPING POLICIES AN 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
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 LEAGAL ACTION SHOW A GREAT NEED FOR RELEVANT EVIDENCE THAT IS PROTECTED BY THE PRIVILEGE

29. THE GOVERNMENT’S PRIVILEGE NOT TO REVEAL GOVERNMENT SECRETS (Cont.)
THE SECRECY OF GRAND JURY PROCEEDINGS AS A PRIVILEGE
THE FEDERAL RULES OF CRIMINAL PROCEDURE FORBIDS DISCLOSURE OF “MATTERS OCCURING BEFORE A GRAND JURY” AND PROVIDES 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
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 PROTECT THE REPUTATIONS OF PEOPLE WHO ARE NOT INDICTED FOR CRIMINAL OFFENSES BUT WERE CONSIDERED

30. 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 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