Evidence Chapter 10

Question	Answer
Privilege	-STATUS accorded communicated info that makes it unavailable to trier of fact -2 types: by class and by case
Privilege by class 2pts	-privilege based on RELATIONSHIP between communicator and recipient -automatic
Privilege by case 2pts	-privilege extended to communication on CASE BY CASE basis -not automatic, must meet Wigmore test
Public safety exception 2PTS	-exception to privilege -when otherwise protected communication poses THREAT TO PUBLIC safety
Solicitor-client privilege 3 pts	-privilege by class -protects communications between lawyer & client - made for purpose of obtaining legal advice
Innocence at stake exception 2pts	-exception to solicitor client privilege - when otherwise protected comm necessary to establish client's innocence
Litigation privilege 4pts	-privilege by class -protects comm between client's lawyer/law firm & 3rd parties 1. APPLIES to comm between lawyer/law firm & 3rd parties. 2. Litigation must have been COMMENCED/anticipated at time of communication. 3. Dominant PURPOSE of comm is to assist in the litigation.
Without prejudice 2pts	-PROTECTION claimed for info provided by a party -prevents the info from being used in court
Spousal privilege	-privilege by class -based on spousal relationship that prevents one spouse from testifying against the other
Judge’s privilege	-privilege protects judges/administrative tribunal members against disclosing info behind their decisions
Wigmore test	-4 criteria for assessing case by-case claims of privilege
Wigmore (1) 3pts	-comm must ORIGINATE in confidence they will not be disclosed -if parties at time didn’t think comm CONFIDENTIAL, then no confidential relationship to protect -litigant can’t claim privilege as AFTERTHOUGHT
Wigmore (2)	-element of confidentiality must be ESSENTIAL to full & satisfactory maintenance of relationship between the parties
Wigmore (3)	relation must be one that COMMUNITY feels sedulously fostered
Wigmore (4)	- injury if disclosed > benefit gained for correct disposal of litigation -Overall balancing criterion -Court must assess whether damage to the relationship that would result =greater than benefit gained by having info available to correctly dispose of litigation.
3 criteria determine if SC privelege	1. must be confidential 2. relate to giving/seeking legal advice 3. not criminal
To whom does privilege belong ? 2pts	-client -client must release
future privilege 2pts	-non violent yes -violent no
murder weapon	-not privileged because it exists independent of communication
Solicitor client v Litigation confidentiality 2pts	-SC= made in confidence -LIT=not in confidence, just process of litigation
Solicitor client v Litigation legal advice 2pts	-SC=made in order to obtain legal advice -LIT=made in context of litigation and not applicable to pre/post lit comm
Solicitor client v Litigation expiry 2pts	SC-never expires even after death LIT-only existence during litigation
Solicitor client v Litigation overridden? 2 pts	LIT more easily overridden than SC -based on fairness/process arguments
Solicitor client v Litigation 3rd parties	SC-protected if agent of lawyer like psychiatrist/translator LIT-more broadly protected if gathered for litigation
Common Law and spousal privilege? Yes or No	No
5 differences between SC and LIT privilege	-confidence -legal advice -expiry of privilege -deference -3rd party
Innocence at Stake test (Mcclure) threshold 2pts	-no other source for exonerating info -otherwise unable to raise reasonable doubt
Innocence at Stake 2part test (Mcclure)	-communication exist that could raise reasonable doubt -if exists, judge determines whether likely to raise reasonable doubt
test for public safety exception 3PTS	-risk to clearly IDENTIFIABLE person/group -severe INJURY/death/serious psychological harm -IMMINENT

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	Created by Penny-Ann Lupton over 9 years ago