3034090
Descripción
Fichas por Penny-Ann Lupton, actualizado hace más de 1 año
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Creado por Penny-Ann Lupton
hace casi 9 años
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| Pregunta | Respuesta |
| 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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