Chapter 11 Privileged Communications

Confrontation Clause of the Sixth Amendment of the United States Constitution "In all criminal prosecutions, the accused shall . . . be confronted with the witnesses against him."

Privileged Communications: An Introduction There are special circumstances that may arise under which a person may refrain, or be prohibited, from testifying concerning certain matters or information. This condition occurs when a person is in possession of information gained as a result of certain confidential relationships.

Some Common Types and Forms of Privileges Spousal Incapacity Privilege Marital Communications Privilege Attorney-Client Physician-Patient Patient-Psychotherapist Clergy-Communicant Law Enforcement Officer-Informant News Reporter-News Source

Theories and Reasons Behind Privileged Communications Even if there were no clergyman-communicant relationship, a priest would not disclose the confidence whether or not there existed a privilege, because the rules of the Church prohibit disclosure. If there were no attorney-client privilege, a lawyer, who has a duty to zealously represent his or her client, might feel compelled to not disclose in order to fulfill that duty of zealousness.

Public Policy and Privileges Public policy in the United States seeks to encourage and protect certain relationships. These relationships are of such importance that society is willing to protect them by maintaining the secrecy of confidences exchanged during the relationship. By removing the fear that the confidences might be revealed in court, the law promotes the relationship. Legally, such exchanges of confidential information are known as privileged communications.

The Effect of Privileged Relationships & Communications If a privilege exists, evidence of any communication made within the privilege is barred from any legal proceeding. (However, that does not apply if the privilege is waived, or an exception to the privilege exists.)

Recognition of a Privilege and Relevant Evidence: Recognition of a privilege may result in important relevant information being excluded in the trial of a particular case. However, the policy of the law is that maintaining privileged communications as secrets between those involved outweighs the benefit that society would derive from their disclosure.

General Principles Applicable to All Privileges A privilege is held by one or more of the persons involved in the privileged relationship. Most privileges contemplate only two persons, but there can be more, for example, when two or more people consult with an attorney together. Usually all of the persons in the relationship hold the privilege, meaning they are capable of asserting the privilege and, therefore, need not answer questions before a judge and jury. However, if no one is present to assert the privilege, in some circumstances, the court may be obligated to assert it on behalf of the holder. A holder of a privilege has the power to waive it.

The Holder of the Privilege The holder of a privilege can waive the privilege by either disclosing a significant part of the communication, or consenting to disclosure of the communication by someone else. The waiver must be made without coercion. Failure to claim a privilege when a holder is able to do so may waive it. If a holder of a privilege waives it for any purpose, it is waived for every other purpose. If two or more persons hold a privilege, such as when several people consult with an attorney, waiver by one holder does not usually affect the right of the other(s) to claim the privilege.

The Scope of Privileges Privileged relationships are strictly limited, because any privilege claimed can act as a block to uncovering the truth during a trial. Since privileges prevent the full disclosure of the facts in a trial, they are not favored in the law.

Marital Privileges: The Spousal Incapacity Privilege The marital privilege that gives a spouse called to testify (witness) against his or her spouse (i.e. defendant) the privilege to refuse to testify. The rule that one spouse is disqualified from testifying against another is ancient. The spousal incapacity privilege is held only by the witness-spouse.

The Marital Communication Privilege Marital Communications Privilege The rule that any communication between spouses, during the marriage, is privileged. It is an accepted fact that for a successful and wholesome marriage relationship to exist there must be “a free exchange of communications between spouses.”

The Marital Communication Privilege: The Court Test The communication was intended to be a confidential one. It was communicated between spouses. It did not involve a crime upon one of the spouses by the other. It was not overheard by a third person. The communication is privileged and cannot be the subject of testimony by a spouse, even after the marriage is dissolved by divorce, annulment, or death. In other words, situations may arise in which a spouse may not be able to testify concerning confidential matters communicated between spouses during the marriage, even though the couple is no longer married.

Crime or Fraud Exception to the Marital Privileges An exception to the spousal incapacity and marital communications privileges exists when one spouse commits a crime or fraud against the other.

The Basis for the Privilege The basis for the privilege lies in society's desire to foster the relationship between marital partners. When one of the partners threatens or commits a crime or fraud upon the other, this so threatens the fabric of the relationship as to destroy it. In short, there is no longer any harmony in the home to protect.

Communication Between Husband and Wife Heard by Third Persons The first requirement for any confidential communication to be within a privilege is that the communication be made in confidence. If the communication is made directly in the presence of third persons, who themselves are not in a confidential relationship with the spouses, then there is a violation of this first requirement. Nothing prevents the third person who overhears a communication between spouses from telling the world about those communications.

Exclusion From Privileges Most jurisdictions do not recognize a parent-child privilege.

Sibling Privilege? Other than the marital privileges (spousal immunity and marital communication), there is no privilege with respect to other members of the family, including parent and child, and siblings.

The Attorney-Client Privilege Created when one who is authorized to practice law in a given state / jurisdiction enters a relationship with one who goes to an attorney seeking professional services or advice.

The Attorney-Client Privilege The attorney-client relationship is another relationship in which the law recognizes a privilege. (It is mentioned in the old Roman laws and was adopted early in English judicial procedure.)

Justifications for the Attorney-Client Privilege Maintaining a confidential exchange between an attorney and his or her client makes for a more orderly court procedure. Establishing the attorney-client relationship is an effort to reduce undue or excessive litigation.

Who can be an attorney? The status of the purported attorney is not always so clear in some situations, such as when the "attorney" has failed to renew his or her license to practice, or is licensed in another state, or has completed law school, but has not taken or passed the bar examination of the jurisdiction in which the case is being litigated. Another ambiguous situation is when the client consults with a person who the client believes to be an attorney when that person is, in fact, not an attorney. When the client communicates with an attorney's secretary, paralegal, investigator, or the law clerk in an attorney's office, the privilege holds.

When is the Attorney-Client Relationship Privilege Created? The rules concerning the time when the relationship of an attorney and client is created are clear and universally recognized. The moment a client consults an attorney on legal matters, the attorney-client relationship, and hence the privilege, is created. This is true even if the attorney rejects the case, or the client decides to seek other counsel. The right of a client and an attorney to confer and exchange information to enable both to make a choice is a necessary part of the privileged-communications rule.

Communications Made in the Presence of a Third Person If a client and attorney communicate with each other in the presence of third persons, on the face of the situation, it cannot be said that the communication was intended to be confidential.

The Communication Between Attorney and Client The general view is that any information that is furnished to the attorney by the client as a result of the professional status is considered to be a privileged communication. This includes oral and written statements and acts on the part of the client. If, during the consultation with the attorney, a client should display to the attorney a gun, a sack of money, or scars and marks, these,too, would fall within the privilege rule. These acts must have some connection with the case about which the attorney was being consulted in order to be covered under this privilege.

Crimes Exception to Attorney-Client Privilege The attorney-client privilege does not apply when a person consults an attorney concerning the commission of a future crime or for the purpose of concealing the defendant after a crime has been committed. The policy of the privilege is to promote the administration of justice. It would then be a perversion of the privilege to allow the client to seek advice from the attorney to aid in carrying out an illegal scheme, or assist in the furtherance of a crime or fraud.

Physician-Patient Privilege A relationship that results when any person consults a psychotherapist or physician for the diagnosis or the treatment of a mental / emotional or physical condition.

Physician-Patient Privilege The common law did not recognize a privilege for communications between patients and their doctors. New York was the first state to adopt a statutory physician-patient privilege in 1828. Most states today have a physician-patient privilege. There is no federal physician-patient privilege.

The Rationale for the Privilege There is a twofold rationale for the physician-patient privilege. First, the privilege exists in recognition of the patient's privacy interest in matters pertinent to medical diagnosis and treatment. Second, similar to the attorney-client privilege, the law's policy promotes full and fearless communication by a patient to a physician: in the absence of the privilege, patients may be deterred from giving the doctor complete information.

Patient-Psychotherapist Privilege A relationship between a patient who seeks diagnosis or treatment from a person who has been authorized to practice medicine and devotes a substantial portion of his or her time to the practice of psychiatry, or a person who is recognized by the laws of the particular jurisdiction as a certified psychologist. Some jurisdictions even recognize social workers within the term.

Patient-Psychotherapist Privilege: An Exception Dangerous Patient exception An exception to psychotherapist-patient privilege, existing in most states, which provides that, if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself / herself, or to the person or property of another, the disclosure of the communications is necessary to prevent the threatened danger.

Clergy-Communicant Privilege The relationship between a member of the clergy which includes a priest, minister, religious practitioner, or similar functionary of a religious denomination or organization and one who seeks out the clergy in a religious capacity for the purpose of securing spiritual advice.

Clergy-Communicant Privilege The common law did not recognize a privilege for the exchange of information between a member of the clergy and a parishioner. Nonetheless, as a practical matter, the law had to adjust to accept the privilege because Catholic priests were forbidden to break the secrecy of the confessional and would rather go to prison than reveal communicants' confessions. A privilege protecting confidential communications between clergy and communicants has now been adopted in all 50 states and is recognized as part of the federal law.

News Reporter-Confidential Source Privilege The privilege between a publisher, editor, reporter, or other person connected with or employed by a newspaper, magazine, or other periodical publication, or by a radio or television station and a source.

News Reporter-Confidential Source Privilege The protection of news reporters against the compulsory disclosure of sources of information was not recognized at common law, but a qualified privilege has been recognized by the federal government and a number of states. Prior to 1972, news reporters sought to have news sources recognized as privileged. They did not want to have to reveal sources of information or even to be compelled to appear before grand jury hearings or other judicial proceedings.

The Codification of the Privilege The statutes that have been enacted granting a news reporter protection against revealing the news source have specified that those covered by the privilege include a publisher, editor, reporter, or other person connected with or employed by a newspaper, magazine, or other periodical publication, or by a radio or television station. The privilege usually covers the information discovered by the reporter, including the sources, and background data. Also included are the reporter's notes, photographs, tapes, and edited materials that were not published.

Identity of Informer Privilege The identity of informer privilege is an offshoot of the well-established “governmental privilege” protecting military and state secrets established by the common law. (Protection & Utility) The common law governmental privilege protects the government against compulsory disclosure of military, diplomatic, or other state secrets when it is in the best interest of the people to do so. (“A matter of national security.”)

The Four Conditions for a Privilege to be Allowed The parties to a communication must believe that their communication is confidential and will not be disclosed to others. This element of confidentiality must be essential to the full and satisfactory maintenance of the relationship between the parties. The relationship must be one, which in the opinion of the community, ought to be promoted and protected. The injury that would be caused to the relationship by the disclosure of the communications must be greater than the value of the conversation to the proper resolution of the court case.