Transcript Privileged Communications presentation slides

PRIVILEGED
COMMUNICATIONS
W. DAVID LEE
Senior Resident Judge
District 20B
2006 Superior Court Judges’ Conference
Wrightsville Beach, NC
June 15, 2006
• Relational privileges exclude logically
relevant evidence
• Assured confidentiality of disclosure
trumps relevant, reliable evidence as a
matter of social policy
• Many relational privileges are governed by
statute. Other privileges, such as
attorney-client, are governed principally by
case law
• PROCEEDINGS TO WHICH PRIVILEGES
APPLY
• Any proceeding in which testimony can be
compelled (Trial Courts; Industrial Commission)
• Principal exception: Child abuse cases
WHO HOLDS THE PRIVILEGE?
Generally, the intended beneficiary of the
privacy
•
•
•
•
Physician-Patient:
Attorney-Client:
Husband-Wife:
ClergymenCommunicant
Patient
Client
Non-witness spouse*
Communicant
*Husband-Wife Privilege:
Which spouse is the holder?
Person making the communication
•
If only one spouse speaks, then that party is the
holder
•
If both speak, both would hold the privilege
Survival of the Privilege
• Holder of privilege becomes mentally
incompetent: Guardian becomes holder
• Holder dies: Personal representative becomes
holder
• Holder’s agent may be deemed the holder
where explicit authorization (eg., attorney at
hearing in absence of client)
Nature of the Privilege
(May encompass three rights)
• Personal
Holder has personal right to refuse to disclose the privileged
information
• Right to Prevent Third Party Disclosure*
Recipient is bound by wishes of holder (physician or attorney
bound)
• Right to Preclude Judge and Opposing Counsel from
commenting on the invocation of the privilege
* Right to Prevent Third Parties from making
disclosure is complicated where the third party is
an eavesdropper or interceptor.
– Husband-Wife privilege: North Carolina
follows traditional view that an eavesdropper
or interceptor is not prevented by the holder
from making the disclosure unless one
spouse connived to allow the eavesdropping.
Interplay of Privilege and Exclusionary Rule
Spouse reveals confidential communication from the
other spouse to police. Information leads to other
evidence that incriminates the other spouse (holder of
the privilege) Is the incriminating evidence admissible or
is it “fruit of the poisonous tree”?
Admissible. See State v.Cousin, 291 N.C. 413, 230
S.E.2d 518 (1976)
(Evidence derived from violation of the confidence
cannot be suppressed, even though the defendantholder of the privilege may preclude the other spouse
from repeating the confidential communication on the
witness stand)
In camera review
• Manner of determining necessity of disclosure is
complicated where information is voluminous and/or
problematic in its application to the facts
• Can judge delegate initial review to counsel as “officer of
the court”?
What Information is privileged?
• “Communication”
– May be either oral or written
– Physician-patient: may extend to any
information gained by examining the patient
– Husband-wife: may include assertive acts, if
intended as a communication and induced by
the relationship
Confidential?
Two-pronged test:
1. Physical privacy
2. Intent by holder to maintain secrecy
See State v. McIntosh, 336 N.C. 517, 444 S.E.2d
438 (1994) (No privilege where attorney was
retained in order to convey information to the police
and arrange safe surrender for the client)
PHYSICIAN-PATIENT PRIVILEGE
Nature of Privilege: Qualified
Disclosure ordered “if necessary for proper
administration of justice”
In criminal cases, disclosure may be required if
information is:
(i) exculpatory, or
(ii) material to defense or punishment
Waiver of Physician-Client Privilege
(May be Express or Implied)
• Patient fails to object
• Patient calls and examines doctor
• Patient testifies re communication
• Patient’s claim places his medical
condition at issue
ATTORNEY-CLIENT PRIVILEGE
Elements:
(1)
(2)
(3)
(4)
(5)
Relationship of attorney and client
Communication made in confidence
Attorney being professionally consulted
In the course of giving or seeking legal advice
Client has not waived the privilege (subject to
the general supervisory powers of the trial
court)
“Protected” Relationship?
Corporate employee communications with corporate
counsel
– Is employee a “control group” employee?
– Is employee divulging information gained in the
course of performing employment duties? (Majority
rule adopted in Upjohn Co. v. United States, 449
U.S.383, 101 S. Ct. 677, 66 L. Ed.2d 584 (1981))
Is the client’s communication with an expert hired by his
attorney protected by the attorney-client privilege?
If the attorney needs an evaluation of the client’s
communication with the expert (as where attorney sends
defendant to a psychiatrist for evaluation, requiring
expertise/analysis of which the attorney is not capable,
then the privilege exists and client’s communications are
protected by the attorney-client privilege “at least until
the expert is placed on the witness stand.” State v.
Ballard, 333 N.C. 515, 428 S.E.2d 178 (1993)
Attorney-Client Privilege Exceptions
• Joint consultation with attorney
– Privilege may not be claimed as between the
clients in the event of a dispute
• Holder seeks advice from attorney to facilitate
the commission of a future crime or fraud
– No privilege
HUSBAND-WIFE PRIVILEGE
• Civil actions: N.C.G.S. sec. 8-56
• Criminal actions: N.C.G.S. sec. 8-57
• Husband and Wife are competent witnesses
under both statutes, but may not be compellable
to testify in certain criminal actions
• Privilege protecting from disclosure of
confidential marital communications applicable
under both statutes
Privileges Not Recognized in North Carolina
• Accountant-Client
• Judge Napping during Presentation at
Summer Conference