What law governs privileges?
In a civil case in diversity, the privilege of a witness is determined by state law.
In federal question cases and criminal cases, the privilege of a witness is determined by common law.
FRE 501.
What is the general rule governing the duty to testify?
Generally, except provided by the Constitution, statute, these Rules, or rules promulgated by the States, no person has a privilege to:
- refuse to be a witness;
- refuse to disclose any matter;
- refuse to produce any object or writing; or
- prevent another from being a witness or disclosing any matter or producing any object or writing.
What are the four common law privileges?
- Attorney-client
- Psychotherapist-patient
- Clergyman-penitent
- Husband-wife
What is the attorney-client privilege?
A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications made for the purpose of facilitating the rendition of professional legal services to the client:
- between himself or his representative and his lawyer or lawyer’s representative;
- between his lawyer and his lawyer’s representative;
- by himself, his representative, his lawyer, or his lawyer’s representative to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein;
- between representatives of the client or between the client and a representative of the client; or
- among lawyers and their representatives representing the same client.
A communication is confidential if it is not intended to be disclosed to third persons. That is, communications which the client either expressly made confidential or which he could reasonably assume under the circumstances would be understood by the attorney as so intended.
The client is the holder of the privilege.
There is no privilege:
- if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud;
- as to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction;
- as to a communication relevant to an issue of breach of duty by the lawyer to his client or by the client to his lawyer;
- as to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness;
- as to a communication relevant to a matter of common interest between two or more clients, if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of the clients; or
- as to a communication between a public officer or agency and its lawyers, unless the communication concerns a pending investigation, claim, or action and the court determines that disclosure will seriously impair the ability of the public officer or agency to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest.
What is the physician- and psychotherapist privilege?
A patient has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications made for the purpose of diagnosis or treatment of his physical, mental, or emotional condition, including alcohol or drug addiction.
Federal common law does not have a physician-patient privilege.
A physician and psychotherapist must be properly licensed.
A communication is confidential if it is not intended to be disclosed to third persons, except:
- persons present to further the interest of the patient in the consultation, examination, or interview;
- persons reasonably necessary for the transmission of the communication, or
- persons participating in the diagnosis and treatment under the direction of the physician or psychotherapist, including members of the patient’s family.
What are unprivileged information:
- personal injury suits brought by the patient; and
- malpractice suits brought against the physician.
The patient is the holder of the privilege.
There is no privilege:
- for communications relevant to an issue in proceedings to hospitizalize the patient for mental illness, if the psychotherapist in the course of diagnosis or treatment has determined that the patient is in need of hospitalization
- if the court orders an examination of the physical, mental, and/or emotional condition of a patient, whether a party or a witness - communications made in the course thereof are not privileged under this rule with respect to the particular purpose for which the examination is ordered, unless the court orders otherwise; or
- as to a communication relevant to an issue of the physical, mental, and/or emotional condition of a patient in any proceeding in which he relies upon the condition as an element of his claim or defense, or, after the patient’s death, in any proceeding in which any party relies upon the condition as an element of his claim or defense.
What are the spousal privileges?
Spousal testimony privilege
In a criminal case, a spouse of a D may not be called as a witness by the prosecution, and a married person may not be compelled to testify against his spouse in any criminal proceeding.
The witness-spouse is now the only holder of the privilege.
This privilege extends to all communications made before or during a valid marriage. However, it terminates upon divorce or annulment.
Marital/spousal communications privilege
In any civil or criminal case, either spouse has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication made between the spouses while they were husband and wife.
This privilege only protects communications made during a valid marriage. Upon divorce, the communications are still protected.
Exceptions:
Communications or acts:
1. in furtherance of a future crime or fraud; or
2. destructive of the family unit.
The privilege does not apply to communications made:
- in order to enable or aid anyone to commit or plan to commit a crime or a fraud;
- in a proceeding brought by or on behalf of either spouse to establish his competence; nor
- in a criminal proceeding where the marital communication was offered in evidence by a D who is one of the spouses between whom the communication was made, pursuant to the D’s Sixth Amendment rights.
What is the clergyman-penitent privilege?
A person has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication made by the person to a clergyman in his profession character as spiritual advisor.
A communication is confidential if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.
The penitent is the holder of the privilege.
What are the other privileges?
Political vote - Every person has a privilege to refuse to disclose his vote, unless compelled by state election laws.
Trade secrets - A person has a privilege to refuse to disclose any trade secret he owns or to prevent others from disclosing such information unless concealment will create fraud or injustice.
Secrets of the State - A secret of state is a government secret relating to national security or international relations.
Informant - Both the U.S. and the individual states have a privilege to refuse to disclose the identity of a person funneling information vital and relevant to law enforcement.
Executive - In U.S. v. Nixon (1974), the Supreme Court recognized such a constitutional privilege for the President.
5th Amendment - This privilege applies only to: evidence that is testimonial, taken on the stand.
When is there a waiver of a privilege?
The holder of the privilege must voluntarily waive the privilege or disclose the privileged information.
A failure to timely object may be an implied waiver.
