1. What is a Privilege?
A privilege is a relationship between a witness and the subject of potential testimony (whether that subject be a person or something else) that causes the law to prevent the witness from testifying so as not to harm that other interest.
General rules about privileges
They must be asserted by the holder of the privilege, otherwise they will be waived.
They generally follow state law.
There is little federal statutory law.
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2. General Elements of a Privilege
The following 4 basic factors are what generally gives rise to a privilege:
The relationship is rooted in the need for confidence and trust.
The privilege is necessary to further the relationship.
The communication made during the relationship must be confidential.
The interest in furthering the relationship must outweigh the interest in allowing the evidence into court.
Privileges, if applicable, must be applied with consistency and certainty, so as not to destroy the whole purpose of the privilege.
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3. Privileges in Federal Court 1
Rule 501 basically says two things with regard to privileges:
1) Regarding cases in federal court the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience”
2) In state causes of action in federal court based only on diversity, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.
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4. Privileges in Federal Court 2
The Supreme Court proposed having the FRE recognize several specific privileges but Congress rejected this;
Therefore, federal courts have a lot of discretion in determining which privileges to recognize and to what extent.
The Supreme Court has rules that Rule 501 does not restrict federal courts to privileges that existed at common law. Rather, the federal courts can determine for themselves how and to what extent to apply any privileges.
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5. Rights Inherent in a Privilege
A holder of a privilege may:
Refuse to testify regarding the communication even when testifying about related matters or other privileged communications;
Refuse to give up any document or object protected by the privilege;
Prevent another person from testifying regarding the privileged information.
A privilege is generally waived by:
Failing to claim the privilege at the appropriate time;
Voluntarily disclosing the privileged information to a third party in a manner that shows that it is no longer confidential information.
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6. Right to Remain Silent Privilege
This is based on the 5th and 6th Amendments and applies to anyone, not just a criminal defendant.
This includes:
The privilege against self-incrimination before trial while under arrest (Miranda).
The right to not testify at trial as a criminal defendant.
No comment rule: The prosecutor may not comment on the defendant’s failure to testify.
The right to not make any statement that can hurt the speaker from a criminal law perspective in any hearing or interrogation about anything.
This can be gotten around sometimes by giving the witness immunity from prosecution based on the subject of the questioning.
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7. Attorney-Client Privilege
Elements of the Privilege:
Legal Advice is sought,
From a professional legal advisor.
The communication was related to seeking that advice.
It was made in confidence.
It was made by the person with whom the legal professional had the relationship.
This can apply even if the attorney was not actually hired.
Watch for the “crime/fraud” exception to the privilege
Even if not privileged, information might be protected from discovery by the “work product” doctrine.
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8. Marital Privileges
Spousal Immunity: This means that a spouse may not be forced to testify against the other spouse.
This only applies during the marriage.
This can be waived by the spouse that is being called to testify.
This applies even to incidents that occurs before the marriage.
Marital Communications Privilege: This means that statements made by one spouse to another are privileged.
This can be waived only by the spouse who made the statements.
This applies even after divorce, as long as the statement was made during the marriage.
This applies only to communications that occur during marriage.
Note the “criminal partnership” exception.
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9. Other Privileges Doctor-Patient (includes psychotherapist-patients)
Exceptions:
Mandatory reporting of sexual abuse and child abuse…
Duty to warn third party of threat by patient (Tarasoff)
Clergy-Penitent Privilege
Limited to when religious issues are being discussed.
The clergy member can claim the privilege on behalf of the person who made the statement.
Privileges rejected by most courts or in most cases:
Parent-Child Privilege
Journalist-Source Privilege
Accountant-Client
Employer-stenographer
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10. Privileges Involving the Government
Identity of Informant
This is where the government wants to keep secret the identity of a whistleblower to encourage others…
State Secrets or national security
Executive Privilege
Legislative Privilege
Judicial Privilege
All of these are subject to a balancing test
Like in the Nixon Watergate tapes case
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