Privileged communications
Privileged communications refer to specific types of confidential exchanges that are protected from disclosure in legal proceedings. These privileges are grounded in the need to foster open and honest communication within particular relationships, which are deemed important for social and legal reasons. Four key conditions typically must be met for a communication to be considered privileged: it must originate in confidence, confidentiality must be essential to the relationship, the relationship should be valued by society, and the harm caused by disclosure must outweigh any benefits of revealing the communication.
The attorney-client privilege is one of the most recognized forms, allowing clients to keep their communications with attorneys confidential, thereby promoting candid discussions necessary for effective legal representation. Similarly, spousal privilege allows married partners to refuse to testify against each other, encouraging trust and intimacy within marriage. The physician-patient privilege protects medical information to ensure effective diagnosis and treatment, while the cleric-penitent privilege allows individuals to seek spiritual counsel without fear of disclosure. However, these privileges have limitations and may not apply in certain circumstances, such as when the communication pertains to future crimes or when waived by the parties involved.
Privileged communications
Legal scholars, such as John Henry Wigmore , have observed that there are four fundamental conditions necessary to the establishment of a privilege against the disclosure of communications. First, the communications must originate in a confidence that they will not be disclosed. Second, the element of confidentiality must be essential to the maintenance of the relation between the parties. Third, the relationship must be one that, in the opinion of the community, ought to be diligently fostered. Finally, any injury that would occur to the relationship by disclosure of the communication must be greater than the benefit that would be gained by requiring it to be revealed.
The concept of privileged communications goes against the fundamental judicial principle that the courts have a right to require anyone who may have relevant information to testify. Therefore, the courts strictly construe such privileges and accept them “only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth” (Elkins v. United States, 1960).
Attorneys and Clients
Clients have a privilege to refuse to disclose, and to prevent their attorneys from disclosing, confidential communications made for the purpose of facilitating the rendition of professional legal services to them. The attorney-client privilege has been justified by the theory that disputes which could result in litigation can be handled most expeditiously by attorneys who have been candidly and completely informed of the facts by their clients. Such full disclosure will best be promoted if clients know that their disclosures cannot, over their objections, be repeated by their attorneys in court. In the criminal context, the attorney-client privilege is necessary to protect the accused’s rights in the Fifth Amendment and Sixth Amendment to the effective assistance of counsel.
Privileged attorney-client communications can be waived only by the client. Further, if the client is called to testify during trial, the client can assert the privilege when asked by the opposing counsel what he or she told his or her own attorney. In most states, the death of the client will not relieve the attorney from the privilege that existed while the client was alive.
The privilege is not recognized if the client’s purpose is the furtherance of an intended future crime or fraud. The privileged communications may be a shield of defense as to crimes already committed, but it cannot be used as a sword or weapon of offense to enable persons to carry out contemplated crimes against society (Gebhart v. United Railways Company, 1920).
Husbands and Wives
This privilege is considered necessary for the encouragement of marital confidences, which promote harmony between spouses. It is most commonly asserted in criminal proceedings, in which accused persons can prevent their husband or wife from testifying against them. Either spouse may assert the privilege.
In some states, the privilege extends past the death of one of the spouses. Communications between the parties before marriage or after divorce are not privileged, however, and the privilege does not extend to proceedings in which one spouse is charged with a crime against the person or property of the other or against a child of either.
Physicians and Patients
The American physician-patient privilege originated in a New York testimonial provision of 1828 which reads:
No person authorized to practice physic or surgery shall be allowed to disclose any information which he may have acquired in attending any patient, in any professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon.
This statute set forth the general scope and purpose of the privilege. In some states, it has been extended to communications between a patient and nurse, psychologist, psychotherapist, or social worker. The policy behind the privilege is that the physician must know all that a patient can articulate in order to identify and treat disease; barriers to full disclosure would impair diagnosis and treatment.
For the privilege to apply, the patient must have consulted the physician for treatment or diagnosis. Only that information which is necessary to enable the doctor to prescribe or act for the patient is privileged. The privilege is not recognized where the patient sees the physician at the request of another, such as a public officer. It does not apply in an examination by a court-appointed doctor or prosecutor or in an examination requested by the patient’s own attorney for personal injury litigation purposes. The privilege is not recognized when patients have unlawful purposes in the consultations, such as securing illegal abortions, obtaining narcotics in violation of the law, or having their appearance disguised by plastic surgery when they are fugitives from justice.
In most jurisdictions, an implicit waiver of the privilege occurs when a plaintiff files a civil suit for personal injury damages. Plaintiffs are not permitted to sue for personal injuries while preventing their doctors, pursuant to the physician-client privilege, from disclosing pertinent treatment information. The privilege is also often statutorily waived in actions for workers’ compensation, prosecutions for homicide, assault with a deadly weapon, commitment proceedings, and will contests.
Clerics and Penitents
The cleric-penitent privilege recognizes the need to disclose confidentially to a spiritual or religious counselor what are believed to be flawed acts or thoughts and to receive guidance in return. This privilege also recognizes that members of the clergy often assume roles as counselors, doing much work that overlaps with psychiatrists and psychologists, both of whom have the benefit of privileged physician-patient communications in most states.
Bibliography
Bowen, Alison. "What Are Privileged Communications in Court?" US News & World Report, 26 Apr. 2024, law.usnews.com/law-firms/advice/articles/what-are-privileged-communications. Accessed 9 July 2024.
Green, Eric D. Problems, Cases, and Materials on Evidence. Boston: Little, Brown, 1993.
Knapp, Samuel J., and Leon D. VandeCreek. "Confidentiality, Privileged Communications, and Record Keeping." Practical Ethics for Psychologists: A Positive Approach. 2nd ed. Washington: American Psychological Association, 2012. 113–131. PsycINFO. Web. 27 May 2016.
McCormick, Charles Tilford. McCormick on Evidence. 4th ed. St. Paul, Minn.: West Publishing, 1992.
"Privileged Communication." Cornell Law School, January 2024, www.law.cornell.edu/wex/privileged‗communication. Accessed 9 July 2024.
Vickery, Alan B. “Breach of Confidence: An Emerging Tort.” Columbia Law Review 82 (November, 1982).
Wigmore, John Henry. Evidence in Trials at Common Law. 2d ed. Boston: Little, Brown, 1961.