Chapter 11
Chapter 11: Privileged Communications
History of Privileges
Wigmore's Standards for Privileges: Privileges should be extended only in relationships that meet four standards:
Expectation of Confidentiality: The communication must be entered into with a mutual expectation of confidentiality.
Essential to Relationship Maintenance: The element of confidentiality must be essential to the maintenance of the relationship.
Public Opinion on Relationship: The relationship must be one that society believes should be safeguarded.
Injury vs. Benefit: The potential injury to the relationship by disclosure should outweigh any benefit gained for litigation purposes.
Emergence in American Law:
Not originally found in American law; recognized first by state courts.
Stemming from the same period as the inception of compulsory witness testimony.
Current application of privilege law is highly inconsistent.
Federal Privileges
Federal Rules of Evidence (FRE):
Only one privilege is included under Rule 501.
Rule 501 allows states to determine which relationships deserve privilege.
The language of Rule 501 is extremely vague.
Recognition of Federal Privileges: In federal courts, privileges are recognized by analyzing four factors:
Federal Policy Support: Whether federal policy supports the privilege.
State Recognition: Whether the privilege is recognized by various states.
Policy Goals Alignment: Whether recognizing the privilege serves the same policy goals that traditionally inform privilege law.
Academic Advocacy: Whether legal scholars advocate for the adoption of that privilege.
Privileges - Generally
Rationale for Privileges: Some relationships are considered sacred and therefore deserving of legal protection.
Admission Standards for Privileges: There are no absolute standards for the admission of privileges; they vary greatly across contexts.
Requirements for Invocation of Privilege: For any privilege to be invoked, two requirements must be met:
Requisite Relationship: A qualifying relationship must exist.
Confidentiality: The communication in question must be confidential.
Attorney-Client Privilege
Overview:
Oldest recognized privilege under common law, developed in England with the introduction of compulsory processes.
Ownership of Privilege: The privilege belongs to the client, not the attorney.
Requirements:
A relationship must be established with an individual authorized to practice law, intending to establish an attorney-client relationship.
No privilege applies for free legal advice given in social situations.
The communication must be made in a manner that ensures confidentiality.
The presence of third parties does not automatically negate privilege.
Limitations of Attorney-Client Privilege
Exclusions:
Future criminal activities are not protected under this privilege.
It does not attach when legal services were retained to further criminal or fraudulent acts.
Identity and fee information are not protected.
Types of Cases Excluding Privilege:
Benefactor cases (known donor), Good Samaritan cases (anonymous donor), and tax cases are specifically excluded from this privilege.
Situations involving criminal complicity or financial impropriety are also not privileged.
Expiration of Privilege:
In most states, the privilege continues even after the death of the client.
Work Product Doctrine
Not all documents and evidence are privileged; some may be subpoenaed.
Only confidential communications are protected.
Documents created in preparation for trial or plea bargaining are also generally protected.
Rationale: The doctrine is intended to prevent discovery that could discourage open communication; however, it is not absolute and may be discoverable on a case-by-case basis.
Spousal Privileges
Background: Recognized formally by the court in 1934; underwent notable evolution since its inception.
Types of Spousal Privileges:
Marital Communications Privilege:
Survives after death and divorce.
Protects confidential communication during marriage.
Requires a legally binding marriage but observes confidentiality for all communications made without third-party presence.
The privilege is maintained by the witness (spouse).
Spousal Testimonial Privilege:
Grants the spouse the right to refuse to testify against the other spouse.
The accused spouse has the right to present testimony from the witness spouse.
Automatically renders the witness incompetent to provide testimony against their spouse.
Limitations for Spousal Privileges:
Does not cover co-conspiracy, crimes against family members, or compulsory testimony in civil cases like divorce or custody.
Physician-Patient Privilege
Legal Background:
Not established at common law; developed through statutory means. First recognized in New York in 1828.
Currently exists in 40 states but is not acknowledged by federal courts.
Rationale for the Privilege:
Designed to promote full disclosure by patients to their physicians for effective healthcare.
Ownership of Privilege: Enjoyed by the patient.
Duration of Privilege: Varies by state; some extend until death, whereas others may continue beyond.
Exceptions: Autopsies are never considered privileged.
Requirements for Physician-Patient Privilege
Formal Relationship: A professional relationship must exist.
Confidential Communications: Only communications intended to be confidential are protected.
Non-Protected Information: Names and dates of patients are not protected under this privilege.
Disclosure Scenarios for Physicians
Categories Requiring Disclosure:
Receipt of Knowledge: Situations like gunshot wounds, child abuse, spousal abuse, fetal death, venereal disease, or unnatural death.
Subpoena: Includes mandatory physicals, DUI screenings, marital blood tests, court-ordered exams, or exams requested by attorneys for expert testimony purposes.
Psychotherapist-Patient Privilege
Overview: More extensive than traditional physician-patient privilege.
Rationale: Complete disclosure is necessary for effective psychotherapy.
Seminal Case: Jaffee v. Redmond sets precedential value for this privilege.
Limitations of Psychotherapist-Patient Privilege
Exemptions:
Communications concerning dangerous patients, criminal activity, or child abuse.
Situations necessitating hospitalization.
If treatment claims are used as elements of litigation.
Court-ordered examinations and issues related to the abuse or neglect of incompetent persons also fall outside of the privilege.
Priest-Penitent Privilege
Evolution: Developed from the sacramental responsibility to provide eternal salvation guidance in Catholic traditions.
Recognized Application: This privilege is upheld in all state and federal courts.
Limitations of Priest-Penitent Privilege
Covers only communications that are strictly confidential and involved in spiritual guidance, excluding marriage counseling and related discussions.
Media Source Privilege
Supreme Court Stance: Full protection from compulsory testimony has not been extended by the Supreme Court.
Branzburg Case: Extended some protections but leans on state discretion and application remains inconsistent.
Government Privileges
Purpose: Certain relationships among government actors are necessary for the maintenance of a free society.
Types of Privileges:
Police-Informant Privilege: Belongs to law enforcement; the informant's identity must be disclosed if necessary for the defense.
Security Privileges: Military, diplomatic, or national security secrets fall under specific Congressional acts (e.g., Patriot Act, FISA).
Presidential Privileges
Existence: This privilege exists between the President and immediate advisors, viewed as crucial for respect towards the Office and the country.
Application Limits: Not all confidential communications among advisors are automatically deemed privileged and are subject to trial court discretion.
Miscellaneous Privileges
Emerging Privileges: New privileges are developing among states but lack consistent application.
Examples Include:
Interpreters for the hearing impaired.
Sexual assault counselors and victims.
Parent-child privilege.
Accountant-client privilege, which is owned by the client.
Conclusions
Function of Privileges: They serve to protect sacred relationships deemed important by society.
Limitations of Privileges: All privileges come with certain limitations.
Ownership Variance: Ownership of the privilege may differ based on the specific context of the relationship being considered.