Transcript marital privilege - Bakersfield College

Chapter 11
Privileged
Communications
Confrontation Clause of the
Sixth Amendment of the
United States Constitution

"In all criminal
prosecutions, the
accused shall . . . be
confronted with the
witnesses against
him."
Privileged Communications:
An Introduction

There are special
circumstances that may arise
under which a person may
refrain, or be prohibited,
from testifying concerning
certain matters or
information. This condition
occurs when a person is in
possession of information
gained as a result of certain
confidential relationships.
Some Common Types
and Forms of Privileges
Spousal Incapacity Privilege
 Marital Communications Privilege
 Attorney-Client
 Physician-Patient
 Patient-Psychotherapist
 Clergy-Communicant
 Law Enforcement Officer-Informant
 News Reporter-News Source

Theories and Reasons Behind
Privileged Communications
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Even if there were no clergyman-communicant
relationship, a priest would not disclose the
confidence whether or not there existed a
privilege, because the rules of the Church prohibit
disclosure.
If there were no attorney-client privilege, a lawyer,
who has a duty to zealously represent his or her
client, might feel compelled to not disclose in
order to fulfill that duty of zealousness.
Public Policy and Privileges
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Public policy in the United States seeks to
encourage and protect certain relationships.
These relationships are of such importance that
society is willing to protect them by maintaining
the secrecy of confidences exchanged during the
relationship.
By removing the fear that the confidences might
be revealed in court, the law promotes the
relationship.
Legally, such exchanges of confidential
information are known as privileged
communications.
The Effect of Privileged
Relationships & Communications

If a privilege exists, evidence of any
communication made within the privilege is
barred from any legal proceeding.
 (However,
that does not apply if the privilege is
waived, or an exception to the privilege exists.)
Recognition of a Privilege and Relevant
Evidence:
Recognition of a privilege may result in
important relevant information being
excluded in the trial of a particular case.
 However, the policy of the law is that
maintaining privileged communications as
secrets between those involved outweighs
the benefit that society would derive from
their disclosure.
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General Principles Applicable
to All Privileges
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A privilege is held by one or more of the persons involved
in the privileged relationship.
Most privileges contemplate only two persons, but there
can be more, for example, when two or more people
consult with an attorney together.
Usually all of the persons in the relationship hold the
privilege, meaning they are capable of asserting the
privilege and, therefore, need not answer questions before
a judge and jury.
However, if no one is present to assert the privilege, in
some circumstances, the court may be obligated to assert it
on behalf of the holder.
A holder of a privilege has the power to waive it.
The Holder of the Privilege
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The holder of a privilege can waive the privilege by either
disclosing a significant part of the communication, or
consenting to disclosure of the communication by someone
else.
The waiver must be made without coercion.
Failure to claim a privilege when a holder is able to do so
may waive it.
If a holder of a privilege waives it for any purpose, it is
waived for every other purpose.
If two or more persons hold a privilege, such as when
several people consult with an attorney, waiver by one
holder does not usually affect the right of the other(s) to
claim the privilege.
The Scope of Privileges
Privileged relationships are strictly limited,
because any privilege claimed can act as a
block to uncovering the truth during a trial.
 Since privileges prevent the full disclosure
of the facts in a trial, they are not favored in
the law.

Marital Privileges: The Spousal
Incapacity Privilege

Spousal Incapacity Privilege
 The
marital privilege that gives a spouse called
to testify (witness) against his or her spouse
(i.e. defendant) the privilege to refuse to testify.
 The rule that one spouse is disqualified from
testifying against another is ancient.
 The spousal incapacity privilege is held only by
the witness-spouse.
The Marital Communication
Privilege

Marital Communications Privilege
 The
rule that any communication between
spouses, during the marriage, is privileged.
 It is an accepted fact that for a successful and
wholesome marriage relationship to exist there
must be “a free exchange of communications
between spouses.”
The Marital Communication
Privilege: The Court Test
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The communication was intended to be a confidential one.
It was communicated between spouses.
It did not involve a crime upon one of the spouses by the
other.
It was not overheard by a third person.
The communication is privileged and cannot be the subject
of testimony by a spouse, even after the marriage is
dissolved by divorce, annulment, or death.
In other words, situations may arise in which a spouse may
not be able to testify concerning confidential matters
communicated between spouses during the marriage, even
though the couple is no longer married.
Crime or Fraud Exception
to the Marital Privileges

An exception to the
spousal incapacity and
marital communications
privileges exists when
one spouse commits a
crime or fraud against
the other.
The Basis for the Privilege
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The basis for the privilege lies in society's desire
to foster the relationship between marital partners.
When one of the partners threatens or commits a
crime or fraud upon the other, this so threatens the
fabric of the relationship as to destroy it.
In short, there is no longer any harmony in the
home to protect.
Communication Between Husband
and Wife Heard by Third Persons
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The first requirement for any confidential
communication to be within a privilege is that the
communication be made in confidence.
If the communication is made directly in the
presence of third persons, who themselves are not
in a confidential relationship with the spouses,
then there is a violation of this first requirement.
Nothing prevents the third person who overhears a
communication between spouses from telling the
world about those communications.
Exclusion From Privileges
 Most
jurisdictions do
not recognize a
parent-child
privilege.
Sibling Privilege?

Other than the marital
privileges (spousal
immunity and marital
communication), there
is no privilege with
respect to other
members of the
family, including
parent and child, and
siblings.
The Attorney-Client Privilege
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Attorney-Client Privilege
 Created when one
who is authorized to
practice law in a given
state / jurisdiction
enters a relationship
with one who goes to
an attorney seeking
professional services
or advice.
The Attorney-Client Privilege
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The attorney-client
relationship is another
relationship in which
the law recognizes a
privilege.
(It is mentioned in the
old Roman laws and
was adopted early in
English judicial
procedure.)
Justifications for the
Attorney-Client Privilege
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Maintaining a confidential exchange between
an attorney and his or her client makes for a
more orderly court procedure.
Establishing the attorney-client relationship is
an effort to reduce undue or excessive
litigation.
Who can be an attorney?
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The status of the purported attorney is not always so clear
in some situations, such as when the "attorney" has failed
to renew his or her license to practice, or is licensed in
another state, or has completed law school, but has not
taken or passed the bar examination of the jurisdiction in
which the case is being litigated.
Another ambiguous situation is when the client consults
with a person who the client believes to be an attorney
when that person is, in fact, not an attorney.
When the client communicates with an attorney's secretary,
paralegal, investigator, or the law clerk in an attorney's
office, the privilege holds.
When is the Attorney-Client
Relationship Privilege Created?
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The rules concerning the time when the
relationship of an attorney and client is created are
clear and universally recognized.
The moment a client consults an attorney on legal
matters, the attorney-client relationship, and hence
the privilege, is created.
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This is true even if the attorney rejects the case, or the
client decides to seek other counsel. The right of a
client and an attorney to confer and exchange
information to enable both to make a choice is a
necessary part of the privileged-communications rule.
Communications Made in the
Presence of a Third Person

If a client and attorney communicate with
each other in the presence of third persons,
on the face of the situation, it cannot be said
that the communication was intended to be
confidential.
The Communication Between
Attorney and Client
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The general view is that any information that is
furnished to the attorney by the client as a result of
the professional status is considered to be a
privileged communication.
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This includes oral and written statements and acts on
the part of the client.
If, during the consultation with the attorney, a client
should display to the attorney a gun, a sack of money,
or scars and marks, these,too, would fall within the
privilege rule.
These acts must have some connection with the case
about which the attorney was being consulted in order
to be covered under this privilege.
Crimes Exception to
Attorney-Client Privilege
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The attorney-client privilege does not apply when
a person consults an attorney concerning the
commission of a future crime or for the purpose of
concealing the defendant after a crime has been
committed.
The policy of the privilege is to promote the
administration of justice.
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It would then be a perversion of the privilege to allow
the client to seek advice from the attorney to aid in
carrying out an illegal scheme, or assist in the
furtherance of a crime or fraud.
Physician-Patient Privilege
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A relationship that
results when any
person consults a
psychotherapist or
physician for the
diagnosis or the
treatment of a mental
/ emotional or
physical condition.
Physician-Patient Privilege
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The common law did not recognize a privilege for
communications between patients and their
doctors.
New York was the first state to adopt a statutory
physician-patient privilege in 1828.
Most states today have a physician-patient
privilege.
There is no federal physician-patient privilege.
The Rationale for the Privilege
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There is a twofold rationale for the
physician-patient privilege.
 First,
the privilege exists in recognition of the
patient's privacy interest in matters pertinent to
medical diagnosis and treatment.
 Second, similar to the attorney-client privilege,
the law's policy promotes full and fearless
communication by a patient to a physician: in
the absence of the privilege, patients may be
deterred from giving the doctor complete
information.
Patient-Psychotherapist Privilege
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A relationship between a patient who seeks
diagnosis or treatment from a person who
has been authorized to practice medicine
and devotes a substantial portion of his or
her time to the practice of psychiatry, or a
person who is recognized by the laws of the
particular jurisdiction as a certified
psychologist. Some jurisdictions even
recognize social workers within the term.
Patient-Psychotherapist
Privilege: An Exception
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Dangerous Patient exception
 An
exception to psychotherapist-patient
privilege, existing in most states, which
provides that, if the psychotherapist has
reasonable cause to believe that the patient is in
such mental or emotional condition as to be
dangerous to himself / herself, or to the person
or property of another, the disclosure of the
communications is necessary to prevent the
threatened danger.
Clergy-Communicant Privilege

The relationship between a member of the
clergy which includes a priest, minister,
religious practitioner, or similar
functionary of a religious denomination or
organization and one who seeks out the
clergy in a religious capacity for the
purpose of securing spiritual advice.
Clergy-Communicant Privilege
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The common law did not recognize a privilege for
the exchange of information between a member of
the clergy and a parishioner.
Nonetheless, as a practical matter, the law had to
adjust to accept the privilege because Catholic priests
were forbidden to break the secrecy of the
confessional and would rather go to prison than
reveal communicants' confessions.
A privilege protecting confidential communications
between clergy and communicants has now been
adopted in all 50 states and is recognized as part of
the federal law.
News Reporter-Confidential
Source Privilege

The privilege between
a publisher, editor,
reporter, or other
person connected with
or employed by a
newspaper, magazine,
or other periodical
publication, or by a
radio or television
station and a source.
News Reporter-Confidential
Source Privilege
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The protection of news reporters against the
compulsory disclosure of sources of information
was not recognized at common law, but a qualified
privilege has been recognized by the federal
government and a number of states.
Prior to 1972, news reporters sought to have news
sources recognized as privileged. They did not
want to have to reveal sources of information or
even to be compelled to appear before grand jury
hearings or other judicial proceedings.
The Codification of the Privilege
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The statutes that have been enacted granting a
news reporter protection against revealing the
news source have specified that those covered by
the privilege include a publisher, editor, reporter,
or other person connected with or employed by a
newspaper, magazine, or other periodical
publication, or by a radio or television station.
The privilege usually covers the information
discovered by the reporter, including the sources,
and background data. Also included are the
reporter's notes, photographs, tapes, and edited
materials that were not published.
Identity of Informer Privilege
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The identity of informer privilege is an offshoot of
the well-established “governmental privilege”
protecting military and state secrets established by
the common law. (Protection & Utility)
The common law governmental privilege protects
the government against compulsory disclosure of
military, diplomatic, or other state secrets when it
is in the best interest of the people to do so. (“A
matter of national security.”)
The Four Conditions for a
Privilege to be Allowed
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The parties to a communication must believe that their
communication is confidential and will not be disclosed to
others.
This element of confidentiality must be essential to the full
and satisfactory maintenance of the relationship between
the parties.
The relationship must be one, which in the opinion of the
community, ought to be promoted and protected.
The injury that would be caused to the relationship by the
disclosure of the communications must be greater than the
value of the conversation to the proper resolution of the
court case.