Tuesday, November 29, 2016

MBE Fast Fact: Privileges in Federal Court

I'm sometimes asked by students about how to apply rules regarding privileges in Evidence questions on the MBE since the Federal Rules of Evidence have no specific privilege provisions.   Privilege in the federal courts is governed by common law principles as interpreted by the courts.  There are some privileges, however, that are currently recognized and should always be applied on the MBE.  These include the attorney-client privilege, spousal immunity, the privilege for confidential marital communications, the psychotherapist(or social worker)-client privilege, and the clergy-penitent privilege.

Further guidance is provided by rule 501 of the Federal Rules of Evidence.  That rule provides that in the trial of a civil proceeding in which state law provides the rule of decision, the rules of privilege shall be determined in accordance with state law.  In other words, in such an instance (where state law governs the rule of decision), if a state law recognizes a given privilege, the federal court must recognize the privilege as well.

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