§501 General Rule—privileges Recognized Only as Provided by Law

• Library: Evidence Restated Deskbook (2021 Ed.)

§501 General Rule—Privileges Recognized Only as Provided by Law

Except as otherwise provided by law, 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, disclosing any matter, or producing any object or writing.

Notes

There is no statutory definition of privilege in Missouri. In the context of this chapter, it refers to privileged communications. In State ex rel. Hope House, Inc. v. Merrigan, 133 S.W.3d 44, 49 (Mo. banc 2004) (citations omitted), the Court wrote that:

In the absence of a statutory definition, the term will be given its plain meaning as derived from the dictionary. According to Black's Law Dictionary, a privileged communication is a "communication that is protected from forced disclosure." . . . [Further] it is "[a]n evidentiary rule that gives a witness the option not to disclose the fact asked for, even though it might be relevant . . . esp. when the information was originally communicated in a professional or confidential relationship."

Whether a privilege exists is a question of law for the court and its creation a legislative responsibility. State ex rel. Great Am. Ins. Co. v. Smith, 574 S.W.2d 379, 386 (Mo. banc 1978). Thus, for example, there is no parent-child testimonial privilege in Missouri. When urged by a litigant to adopt one, the court of appeals responded: "[W]e decline to do so. That is a matter for the legislature, not the courts." State v. Bruce, 655 S.W.2d 66, 68 (Mo. App. E.D. 1983); see alsoState ex rel. Mo. Ethics Comm'n v. Nichols, 978 S.W.2d 770, 774 (Mo. App. E.D. 1998) ("[W]e find no reason based on public policy for a court to recognize an investigative process privilege . . . . The creation of a privilege of this nature is appropriately a legislative responsibility."). Several of the statutes discussed in this comment use the term "confidential" rather than privilege. Whether such a statute creates a privileged communication only matters if the statute prevents access to information that would otherwise have been obtainable. Hope House, 133 S.W.3d at 47–49 (although the information sought—documents concerning the identity and services provided to individuals served by domestic violence shelters—is not a privileged communication, it is not subject to mandatory discovery because a statute makes the information confidential); see alsoState ex rel. Dep't of Soc. Servs., Div. of Children Servs. v. Tucker, 413 S.W.3d 646, 648–49 (Mo. banc 2013) ("[T]he confidentiality mandated by section 210.150, [now RSMo 2016, which mandates confidentiality of the identity of hotline child abuse reporters] does not establish a legal privilege but, like the confidentiality statute at issue in Hope House, mandates that the division keep confidential an entire body of information, including not just communications but also the names of reporters as well as other information."); Nichols, 978 S.W.2d at 773–74 ("Generally, where a statute prohibits disclosure of the records of an administrative body or other entity or makes its processes confidential, courts have held that no discovery or evidentiary privilege is created with respect to those records in the absence of further specific statutory language creating a privilege. Such statutes mandate confidentiality but do not create a privilege. . . . [Therefore, the trial court did not abuse its discretion] in ordering confidential records of the [Missouri Ethics Commission] to be produced in camera to be reviewed for relevance and made available subject to protective orders as required to protect confidentiality.").

Prohibition is the proper means to contest the enforcement of discovery of alleged privileged information. State ex rel. Behrendt v. Neill, 337 S.W.3d 727, 729 (Mo. App. E.D. 2011).

Pre-Trial Discovery and In Camera Review

When a defendant [accused of a crime] seeks potentially privileged information, the proper procedure for protecting confidentiality and the defendant's due process rights is for the trial court to conduct an in camera review to determine whether the records are actually privileged and, if so, whether, under the circumstances of the case, the asserted privilege should yield to the defendant's specific need for the evidence.

State v. Julius, 453 S.W.3d 288, 296–99 (Mo. App. E.D. 2014). Accordingly, "a defendant must allege specific facts showing how the information is both favorable and material." Id. at 296–97.

In addition to the privileged communications discussed in §§502–508 below, there are other communications that have been protected by statute or court decisions. They include the following:

1. Syphilis blood test result—confidential. Section 210.040, RSMo 2016, prevents any person, including the physician or other obstetrical or gynecological attendant, undertaking the obstetrical or gynecological care of a pregnant woman from making the results of a positive or doubtfully positive syphilis or hepatitis B test public.

2. Employment security—records confidential. Section 288.250.1, RSMo Supp. 2019, dealing with information obtained from any employing unit or individual under the administration of the "unemployment compensation" law, provides, with certain exceptions, that the "[i]nformation obtained . . . shall be held confidential and shall not be published, further disclosed, or be open to public inspection in any manner revealing the individual's or employing unit's identity."

Because there are exceptions in the statute, "the legislature [did not] intend to cloak this type of information with an absolute privilege." State ex rel. Von Hoffman Press, Inc. v. Saitz, 604 S.W.2d 770, 772 (Mo. App. E.D. 1980).

Employment security records are considered confidential under federal law as well, so much so that the applicable federal regulation requires the Division of Employment Security, Missouri Department of Labor and Industrial Relations, to file a motion to quash each and every subpoena requesting the production of any such records. See20 C.F.R. § 603.7.

3. Juvenile proceeding matters. Section 211.271.3, RSMo 2016, provides as follows:

3. After a child is taken into custody as provided in section 211.131, all admissions, confessions, and statements by the child to the juvenile officer and juvenile court personnel and all evidence given in cases under this chapter, as well as all reports and records of the juvenile court, are not lawful or proper evidence against the child and shall not be used for any purpose whatsoever in any proceeding, civil or criminal, other than proceedings under this chapter.

The statute "expresse[s] a legislative intent that juvenile court personnel should not be permitted to utilize the relaxed, parens patriae relationship existing between them and a youth to secure a statement or confession of a crime and then use it against him in a prosecution under the general criminal law." State v. Wright, 515 S.W.2d 421, 427–31 (Mo. banc 1974). But it does not render inadmissible a confession given to a police officer notwithstanding the fact that the interrogation was also in the presence of a juvenile officer. Id. Moreover, the statute does not apply to the use of lineups or fingerprints because this is not equated with the taking of statements or confessions expressly mentioned in the statute. See State v. Richardson, 495 S.W.2d 435, 438–40 (Mo. banc 1973). And it does not render inadmissible the record of disposition of a juvenile case if the juvenile was found to be delinquent based on behavior that would have been a felony offense for an adult because § 211.321.2(2), RSMo 2016, provides that that disposition is public information to the same extent as records in criminal proceedings. State v. Sapien, 337 S.W.3d 72, 77–78 (Mo. App. W.D. 2011). But § 211.321.2(2) does not render admissible juvenile court records containing allegations of criminal conduct absent supporting evidence demonstrating by a preponderance of the evidence that a defendant engaged in the acts alleged. State v. Doss, 394 S.W.3d 486, 494–97 (Mo. App. W.D. 2013).

Davis v. Alaska[, 415 U.S. 308 (1974),] holds that the right of confrontation overrides public policy such as that of Missouri under § 211.271. This right permits proof of the bias which could result from the juvenile witness's motive to lie because he is a suspect and subject to control of the juvenile authorities.

State v. Russell, 625 S.W.2d 138, 141–42 (Mo. banc 1981). See also § 491.078, RSMo 2016, which permits certain juvenile court adjudications to be used to affect the credibility of a witness or a defendant in a criminal case, and §609.E of this deskbook.

The privilege is subject to waiver. See State ex rel. Rowland v. O'Toole, 884 S.W.2d 100 (Mo. App. E.D. 1994) (by filing a suit for damages against the victims and complaining witnesses in the juvenile proceeding, the juvenile waived the privilege).

4. Trade secret. A "trade secret" can be "'any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it.'" Brown v. Rollet Bros. Trucking Co., 291 S.W.3d 766, 776 (Mo. App. E.D. 2009) (citations omitted). Some factors to be considered in determining whether certain information is a trade secret are:

(1) the extent to which the information is known outside of his business;

(2) the extent to which it is known by employees and others involved in his business;

(3) the extent of measures taken by him to guard the secrecy of the information;

(4) the value of the information to him and to his competitors;

(5) the amount of effort or money expended by him in developing the information;

(6) the ease or difficulty with which the information could be properly acquired or duplicated by others.

The employer bears the burden to substantiate its asserted interest in its...