Privilege is the legal protection given to certain communications and relationships, i.e., attorney-client privilege, doctor-patient privilege, and marital privilege[i].
Communications made in confidence are not protected purely because of their confidentiality, but may be kept secret only if premised upon a public policy expressed by statute or in furtherance of an overriding public concern of constitutional dimension[ii].
Privileges are the exception, not the rule. Parties in litigation are entitled to every person’s evidence, except when a person from whom evidence is sought has a privilege not to give evidence that is inherent or implicit in statute, or in rules adopted by the Supreme Court, or required by the constitution of the U.S. or a state constitution[iii].
Privileged communications should not be disclosed unless the injury that would inure to the relation by the disclosure of the communications is greater than the benefit thereby gained for the correct disposal of litigation[iv].
A privilege against compelled disclosure of relevant evidence runs counter to the fundamental theory of the judicial system that the fullest disclosure of the facts will best lead to the truth. For that reason, in general, privileges are construed narrowly in favor of admitting relevant evidence[v].
However, since the assertion of a statutory privilege is usually an inhibiting limitation upon the discovery of truth, such privileges are in derogation of the common law and should be strictly construed[vi].
If the communication would not be privileged under either the law of the forum or the law of the state with the most significant relationship, then it is admissible, unless its admission would be contrary to strong public policy or there is some special reason why the forum’s policy of favoring admission should not be followed[vii].
The common law has recognized privileges against disclosure for certain types of communications, most notably those between attorney and client and between husband and wife; similarly, privilege traditionally has been extended by common law or statute to communications between government and informer, and between fellow jurors[viii]. Those communications privileges are generally considered to be premised on the following conditions[ix]:
- The communications must originate in a confidence that they will not be disclosed.
- This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
- The relation must be one which in the opinion of the community ought to be sedulously fostered.
- The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.
Since the privileges operate to exclude relevant evidence, the party asserting the privilege has the burden to prove the privilege applies[x].
A husband should not be examined for or against his wife, without the consent of the wife, nor a wife for or against her husband without the consent of the husband; nor can either during marriage or afterward, be without the consent of the other, examined as to any communication made by one to the other during marriage[xi].
The marital communications privilege is not absolute. Both common law and legislative exceptions have surfaced under circumstances where the purpose for the privilege is diminished or lost[xii].
The spousal testimonial privilege serves the following purposes[xiii]:
- fostering domestic harmony and preventing discord;
- reflecting the natural repugnance of having one spouse testify against the other; and
- preventing the testifying spouse from having to choose between perjury, contempt of court, or jeopardizing the marriage.
The physician-patient privilege has been justified on the basis that its recognition encourages free communication and frank disclosure between patient and physician which, in turn, provides assistance in the proper diagnosis and appropriate treatment[xiv].
The psychotherapist-patient privilege provides that in any court proceeding, a patient has the privilege of refusing to disclose, and of preventing a witness from disclosing, any communication, wherever made, between said patient and a psychotherapist relative to the diagnosis or treatment of the patient’s mental or emotional condition[xv].
Statutes grant persons the privilege to prevent disclosure of[xvi]:
- confidential communications,
- made to clerics,
- in their professional capacity as spiritual advisors.
In order for confessions to be privileged, those confessions must be directed to clergy persons acting in their professional character and in the course of discipline enjoined by the church. The clergy-penitent privilege must not be so strictly construed as to violate the right to the free exercise of religion guaranteed by the U.S. Constitution, Amendment one, as well as state Constitutions[xvii].
Some courts follow a broad qualified privilege for experts. To determine whether an expert has a legal privilege to refuse to provide an expert opinion, the court must determine whether a statute, Supreme Court rule, or the federal or state constitutions expressly or implicitly provides for a testimonial privilege for experts[xviii].
The courts do not recognize a parent-child privilege either at common law or in its rules of evidence[xix]. Although commentators have argued in favor of a parent-child privilege on both constitutional grounds, and social-policy grounds, the courts that have rejected such a privilege have found no systematic regulation of protected family interests that might give rise to a constitutional claim. Nor have those courts found that a policy of protecting family bonds outweighs the public’s interest in uncovering the truth during criminal investigations.
The social worker-client privilege provides that in any court proceeding, a client has the privilege of refusing to disclose and of preventing a witness from disclosing, any communication, wherever made, between said client and a social worker relative to the diagnosis or treatment of the client’s mental or emotional condition[xx].
Although a newsperson’s privilege is broad, several situations are there in which the privilege does not apply. For instance, the privilege of nondisclosure does not apply to information that is[xxi]:
- received at a press conference;
- published or broadcast;
- based on a newsperson’s personal observation of a crime, when such information cannot be reasonably obtained through other means; and
- based on a newsperson’s observations of a class one, two, or three felony.
The privilege of nondisclosure of confidential communications is a privilege which may be waived by the person in whose favor it exists. When the privilege has been waived, it may not be asserted at a subsequent trial[xxii]. However, under some jurisdictions the waiver of a privileged communication at one trial does not preclude the assertion of the right to claim the communication as privileged at a subsequent trial[xxiii].
[i] Doe v. Md. Bd. of Soc. Workers, 154 Md. App. 520 (Md. Ct. Spec. App. 2004).
[ii] Perry v. Fiumano, 61 A.D.2d 512 (N.Y. App. Div. 4th Dep’t 1978).
[iii] Dawn Alt v. Cline, 224 Wis. 2d 72 (Wis. 1999).
[iv] Perry v. Fiumano, 61 A.D.2d 512 (N.Y. App. Div. 4th Dep’t 1978).
[v] Kinsella v. Kinsella, 150 N.J. 276 (N.J. 1997).
[vi] Triplett v. Board of Social Protection, 19 Ore. App. 408 (Or. Ct. App. 1974).
[vii] Gonzalez v. State, 45 S.W.3d 101 (Tex. Crim. App. 2001).
[viii] Kinsella v. Kinsella, 150 N.J. 276 (N.J. 1997).
[ix] In re Inquest Proceedings, 165 Vt. 549 (Vt. 1996).
[x] Stidham v. Clark, 74 S.W.3d 719 (Ky. 2002).
[xi] State v. Burden, 120 Wn.2d 371 (Wash. 1992).
[xii] State v. Anderson, 636 N.W.2d 26 (Iowa 2001).
[xiii] State v. Burden, 120 Wn.2d 371 (Wash. 1992).
[xiv] Terre Haute Regional Hosp., Inc. v. Trueblood, 600 N.E.2d 1358 (Ind. 1992).
[xv] Commonwealth v. Oliveira, 438 Mass. 325 (Mass. 2002).
[xvi] State v. Guthrie, 2001 SD 61 (S.D. 2001).
[xvii] State v. Gooding, 1999 MT 249 (Mont. 1999).
[xviii] Dawn Alt v. Cline, 224 Wis. 2d 72 (Wis. 1999).
[xix] In re Inquest Proceedings, 165 Vt. 549 (Vt. 1996).
[xx] Commonwealth v. Oliveira, 438 Mass. 325 (Mass. 2002).
[xxi] Henderson v. People, 879 P.2d 383 (Colo. 1994).
[xxii] People v. Bloom, 193 N.Y. 1 (N.Y. 1908).
[xxiii] Burgess v. Sims Drug Co., 114 Iowa 275 (Iowa 1901).