“ Copyright © Allyn & Bacon 2008 Criminal Evidence Chapter Eleven: Privileged Communications This multimedia product and its contents are protected under copyright law. The following are prohibited by law: any public performance or display, including transmission of any image over a network; preparation of any derivative work, including the extraction, in whole or in part, of any images; any rental, lease, or lending of the program. Marjie Britz

“ Copyright © Allyn & Bacon 2008 Introduction Historically, certain privileged against testifying have developed. Historically, certain privileged against testifying have developed. Typically involve: Typically involve: requisite relationship: relationship is present and relationship was entered in a manner not suggestive of intentional fraud or attempt to pervert the criminal justice system requisite relationship: relationship is present and relationship was entered in a manner not suggestive of intentional fraud or attempt to pervert the criminal justice system confidentiality: communications were intended to be confidential confidentiality: communications were intended to be confidential

“ Copyright © Allyn & Bacon 2008 Attorney-Client Oldest recognized privilege Oldest recognized privilege Requirements and Limitations of the Attorney- Client Privilege: Requirements and Limitations of the Attorney- Client Privilege: client sought out services of individual reasonably believed to be licensed to practice law; intention of establishing an attorney-client relationship client sought out services of individual reasonably believed to be licensed to practice law; intention of establishing an attorney-client relationship the communication in question was undertaken in a manner designed to ensure confidentiality the communication in question was undertaken in a manner designed to ensure confidentiality

“ Copyright © Allyn & Bacon 2008 Attorney-Client Attorney-client privilege does not preclude the introduction of all other attorney-client communications Attorney-client privilege does not preclude the introduction of all other attorney-client communications e.g. intent to commit of future crimes e.g. intent to commit of future crimes situations where the services were retained to enable commission of crime situations where the services were retained to enable commission of crime identity of client and fee identity of client and fee

“ Copyright © Allyn & Bacon 2008 Attorney-Client The Work-Product Doctrine & the Attorney- Client Privilege: counsel may formally request documents and other evidence from the adverse party; may include any evidence which is relevant to the matter at hand except that which is considered privileged The Work-Product Doctrine & the Attorney- Client Privilege: counsel may formally request documents and other evidence from the adverse party; may include any evidence which is relevant to the matter at hand except that which is considered privileged Rationale for privilege can be found in both 5 th and 6 th Amendments Rationale for privilege can be found in both 5 th and 6 th Amendments

“ Copyright © Allyn & Bacon 2008 Spousal Privileges Marital communications privilege: protects those spousal communications made in confidence Marital communications privilege: protects those spousal communications made in confidence Spousal testimonial privilege: gives witnesses the right to refuse to testify against their spouses; or for the accused to prevent testimony by that spouse; or automatically render the witness incompetent Spousal testimonial privilege: gives witnesses the right to refuse to testify against their spouses; or for the accused to prevent testimony by that spouse; or automatically render the witness incompetent

“ Copyright © Allyn & Bacon 2008 Parameters & Limitations does not to communications involving criminal activities in which spouses are conspirators does not to communications involving criminal activities in which spouses are conspirators Does not apply in cases involving crimes committed against those in the family unit Does not apply in cases involving crimes committed against those in the family unit The privilege is usually limited to criminal cases The privilege is usually limited to criminal cases

“ Copyright © Allyn & Bacon 2008 Physician-Patient 40 states have adopted a general physical-patient privilege statute 40 states have adopted a general physical-patient privilege statute No similar federal law No similar federal law Privilege rests solely with the patient Privilege rests solely with the patient

“ Copyright © Allyn & Bacon 2008 Parameters & Limitations Professional relationship between the parties is necessary Professional relationship between the parties is necessary casual conversations not protected casual conversations not protected Legally ordered medical examinations not privileged Legally ordered medical examinations not privileged State have other limitations including such matters as gun shot wounds and spousal abuse State have other limitations including such matters as gun shot wounds and spousal abuse

“ Copyright © Allyn & Bacon 2008 Psychotherapist-Patient Privilege Based on the concept of psycho-analysis which requires complete disclosure for effective treatment Based on the concept of psycho-analysis which requires complete disclosure for effective treatment The mere possibility of disclosure would all but guarantee the collapse of an effective treatment strategy The mere possibility of disclosure would all but guarantee the collapse of an effective treatment strategy

“ Copyright © Allyn & Bacon 2008 Parameters & Limitations Does not cover the planning, commission, or concealment of criminal activity Does not cover the planning, commission, or concealment of criminal activity Does not cover allegations of child sexual abuse Does not cover allegations of child sexual abuse Does not cover when the patient poses a threat of serious harm to themselves or others Does not cover when the patient poses a threat of serious harm to themselves or others

“ Copyright © Allyn & Bacon 2008 Clergy/Communicant Protection originally based on sanctity of confession Protection originally based on sanctity of confession

“ Copyright © Allyn & Bacon 2008 Parameters & Limitations Only those conversations which are designed to be confidential enjoy the protections afforded under the statutory privilege Only those conversations which are designed to be confidential enjoy the protections afforded under the statutory privilege Need relationship Need relationship Privilege includes all levels of clergy Privilege includes all levels of clergy Ownership of the clergy-communicant privilege belongs to both parties Ownership of the clergy-communicant privilege belongs to both parties

“ Copyright © Allyn & Bacon 2008 Media/Source Privilege 31 states and the District of Columbia have recognized limited protections afforded to journalists known as “shield laws” 31 states and the District of Columbia have recognized limited protections afforded to journalists known as “shield laws”

“ Copyright © Allyn & Bacon 2008 Government Privileges Protection from disclosure of information contained within the confines of those relations extends only when the preservation of confidentiality outweighs the necessity for disclosure in the interest of justice Protection from disclosure of information contained within the confines of those relations extends only when the preservation of confidentiality outweighs the necessity for disclosure in the interest of justice

“ Copyright © Allyn & Bacon 2008 Government Privileges Police-Informant privilege Police-Informant privilege Privileged Information Regarding Military, Diplomatic, or National Security Secrets Privileged Information Regarding Military, Diplomatic, or National Security Secrets Presidential Privilege Presidential Privilege

“ Copyright © Allyn & Bacon 2008 Miscellaneous Privileges Interpreters-deaf Interpreters-deaf Sexual assault counselor – victim Sexual assault counselor – victim Parent-child privilege Parent-child privilege Accountant-client privilege Accountant-client privilege