20. Privilege
The privilege against self-incrimination, legal professional privilege and waiver.
How to study for BSB Criminal Litigation
Prepare for a closed-book assessment by linking every power, gateway, burden, procedure and appellate route to its place in the criminal case.
Core concepts
Concept 1
The privilege against self-incrimination protects against compelled answers or material within its lawful scope, subject to statutory qualifications.
Exam cue: Identify the holder, protected communication or answer, and the legal basis for the privilege.
Concept 2
Legal professional privilege protects qualifying confidential legal-advice and litigation communications and belongs to the client.
Exam cue: Separate legal-advice privilege from litigation privilege and from general confidentiality.
Concept 3
Privilege may be waived expressly or by conduct, with scope and fairness consequences requiring careful analysis.
Exam cue: Assess whether disclosure was intentional, limited and inconsistent with maintaining privilege.
Risk pitfalls and guardrails
Treating every confidential communication with a professional as legally privileged.
Guardrail: Do not import a current-law change into the assessment merely because it post-dates the syllabus cut-off; use the latest BSB-issued syllabus or amendment for exam scope.
Assuming counsel can waive the client's privilege for tactical convenience.
Guardrail: Do not import a current-law change into the assessment merely because it post-dates the syllabus cut-off; use the latest BSB-issued syllabus or amendment for exam scope.
Using privilege as a blanket refusal without identifying the protected material and scope.
Guardrail: Do not import a current-law change into the assessment merely because it post-dates the syllabus cut-off; use the latest BSB-issued syllabus or amendment for exam scope.
Memory anchors
Self-incrimination
A person may resist compelled self-incriminating answers within the privilege's scope and exceptions.
Legal-advice privilege
Protects qualifying confidential lawyer-client communications for legal advice.
Litigation privilege
Protects qualifying communications and material for dominant-purpose adversarial litigation.
Client's privilege
Legal professional privilege belongs to the client, not the lawyer.
Waiver
Voluntary disclosure may waive privilege to the extent fairness and consistency require.
Checkpoint rule
Do the check-up only after you can summarize each concept in one sentence and identify one dangerous pitfall from memory.
Knowledge Check (after reading)
Short check-up to confirm understanding of this module.
Check-up Questions
A witness claims the privilege against self-incrimination because an answer may incriminate her brother but not her. Does the general privilege apply?
A compelled answer may expose the witness to a real risk of prosecution. What must the court assess?
Answer all questions to submit.
Next step personalized recommendations
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Move forward only after this module is stable.
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