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Privilege Concepts

As we prepare for trial we need to have a good idea of what material we are required to turn over to the other side and what material we can refuse to turn over on the basis of an evidentiary privilege. Along with physical evidence which may be privileged we should also have a good handle on what type of testimony may be protected under a certain privilege. There will be times when opposing counsel will seek to gather information from you or your client pre-trial or in trial which you can validly object to under a privilege doctrine.

These privileges are an exception to the rule that evidence which is logically and legally relevant should be fair game at trial. These privileges exist for various policy reasons. We want people to be protected when they speak to their attorneys so that they can speak openly. We want spouses to be able to speak openly with one another without the fear of being compelled to testify against one another in a later proceeding. We want individuals to be able to speak openly to their doctors so that doctors can make accurate diagnosis. To this end, legislatures have promulgated various privileges which protect the holder of such privileged information from having such information disclosed. Of course, there are exceptions to these privileges. For instance, there are times when the holder of such privilege will have waived his or her privilege.

Generally speaking, the individual who can assert protections of privilege is the beneficiary of the privilege. This would thus be the patient in the doctor patient context and it would likewise be the client in the attorney-client context. Beyond this, in the event the holder passes on or otherwise becomes incompetent then the personal representative of the incompetent party becomes the holder of this privilege. The protections of the privilege generally go beyond the right to avoid being compelled to testify to or disclose privileged communication. The protections also generally prevent third parties from disclosing privileged information to other individuals. For example, if a client presents attorney-client privileged communication to me, as their attorney, I cannot later transmit the information to other parties. I am bound by the privilege. Lastly, in most jurisdictions the privilege prevents the party attempting to illicit the privileged information from making or hinting to the jurors that they should make an adverse interest from parties' assertion of the privilege.

That being said, the privilege only goes so far in its protection. For example, let's say there is a breach of confidentiality. For instance, let's assume that a doctor violated the doctor-patient privilege by revealing what should otherwise have been confidential information to a third party. As a result, this information becomes known by others who the privilege is not intended to apply to. You cannot later claim that this information as now possessed by other third parties is privileged. This is contrary to the fruit of the poisonous tree limitations found in criminal proceedings which preclude evidence from an illegal search from being exposed as evidence in a criminal proceeding. The privilege can only be asserted to prevent the recipient who falls within that category of protected parties from disclosing privileged communications.

Also, remember that when you are dealing with professional relationships where the privilege may apply, for instance in the doctor-patient scenario or the attorney-client context, that the privilege will only apply if the communication was made within a professional context. Thus, just because an individual discloses information to you as their attorney does not in and of itself afford that communication automatic protection. Rather, the individual must be consulting with you in your professional capacity for the protections to fall in place.

Like much else in law there is ambiguity and conflicting interpretation of the definitions of privileged communication both within jurisdictions and across jurisdictions. For example, privileges protect "confidential communication". The question then becomes what is "communication"? Some courts view communication narrowly, finding that communication is simply oral statements between two or more individuals. Other courts view "communication" more broadly and thus provide greater protection. For example, what happens if a wife comes home to find her husband committing a crime first hand? Does this viewing of her husband's actions constitute communication? Some courts might say that it does by interpreting the word "communication" broadly. Other courts in different jurisdictions may not view the term communication so broadly.

In addition to the different interpretations of the word "communication" there is also a difference of opinion amongst jurisdictions as to how the word "confidential" should be interpreted. Generally speaking, if you want to lay a foundation for "confidential" communication you will need to first illicit that the communication occurred in a private setting and secondly you will need to illicit that the parties intended that their communication remain private. Some jurisdictions, however will not find the privilege destroyed simply by the presence of friends or family during these communications between the individuals as long as those communications were intended to be confidential.

Be aware as counsel, that the attorney client privilege will typically be viewed as broader than simply the communication exclusively between yourself and your client. When you enlist the help of other professionals, typically experts, for assistance in your case and those experts consult with your client then that communication will also typically fall under the protections of the attorney client privilege. The information the client gives to your expert will be protected along with any reports your expert turns over to you for purposes of assisting you in the case at hand. This applies to experts who you retain to assist you in the case but who will not be testifying in trial.

There will be times when the holder of a privilege will waive his or her privilege protections. For example, when the holder of the privileged communication refers to those same otherwise protected communications while on direct examination, the holder is then said to have waived his or her privilege. By the same token, this same waiver can occur when the holder of the privileged communication decides to pass on the privileged information to other individuals, outside of the courthouse. This is of course assuming that those other third party recipients do not have their own special relationship so as to invoke a privilege. Once the privileged statements are disseminated to others who do not have one of the special relationships which allow for privilege then the communication which was originally protected loses its privileged nature.

If you are counsel and you seek to invoke a privilege you will simply put an objection on the record and then request to voir dire the witness on the subject matter so as to lay a foundation for the court to make a ruling on your objection. Thus your line of questioning to the witness should first likely focus on the time and place of the communication. Here you will typically be eliciting facts which demonstrate where and when the communication occurred. You need to show that the communication was made in a private setting with the intent of keeping the same communication private. If you are attempting to establish an attorney-client or doctor-patient privilege then query your witness as to the purpose of the communication to show that it was made in the course of a professional consultation. After you complete your voir dire of the witness renew your objection with the court. Without laying a foundation the court may not sustain your initial objection.

Now you may find that you are counsel are seeking to have a privilege objection overruled. For instance, you may be able to overcome this objection if you can show that the holder of the privilege waived his or her privilege by opening in the door to it on direct or by making an out of court statement regarding the same as mentioned above. To do this you would again request the court to allow you to take the witness on voir dire before the court makes a determination as to the objection. You then lay the foundation for the privilege with your witness. For instance, let's say that the witness relayed what would otherwise be privileged communication to other individuals who do not possess this privileged relationship. On voir dire you query your witness regarding where and when those out of court statements were made and to whom those statements were made. Once you establish that the same statements the witness wished to protect were relayed to other third parties you have demonstrated that the privilege was waived. After laying your foundation ask for a ruling of the court.

The above article reflects some evidentiary rules as promulgated by both state evidentiary rules as well as the Federal Rules of Evidence. Remember that states have their own rules of evidence which may or may not reflect the Federal Rules of Evidence. For more information on this topic I refer you to Edward Imwinkelried, (2012) Evidentiary Foundations which is an excellent book on this subject matter and the source of my own information, as outlined above, on the subject. I am by no means an expert in this area. I write these blogs/articles for my own personal learning benefit.

Categories: Evidence