Chapter 12 - § 12.4 PRIVILEGE

• Jurisdiction: Colorado

§ 12.4 PRIVILEGE

Colorado

➢ Generally. No person may refuse to be a witness, disclose information, or produce an object or writing except as provided by law. CRE 501. The law encourages confidential communication in certain special relationships. Colorado has codified most of those relationships. See C.R.S. §§ 13-90-101, et seq.

➢ Marital Privilege. A husband may not be examined for or against his wife without her consent, nor a wife for or against her husband without his consent. A husband or wife may not be examined about communications between them during their marriage without the consent of the other. C.R.S. § 13-90-107(1)(a)(I). However, spousal consent is not required in a civil action by one against another. Further limitations to this privilege apply in criminal cases. See C.R.S. § 13-90-107(1)(a)(II)-(III). The burden of proving the existence of a marriage is on the party asserting the claim. C.R.S. § 13-90-107(1)(a)(IV). Marital privilege does not extend to communications made in the presence of a third party. South Carolina Ins. Co. v. Fisher, 698 P.2d 1369, 1372 (Colo. App. 1984). "Notice of the assertion of the marital privilege shall be given as soon as practicable but not less than ten days prior to assertion at any hearing." C.R.S. § 13-90-107(1)(a)(V).

➢ Marital Privilege and Civil Unions. A privilege that operates the same as the marital privilege applies to a party to a civil union. C.R.S. § 13-90-107(1)(a.5) and see C.R.S. § 14-15-107(5)(t). A person is a party to a civil union if the State of Colorado issued the parties to the union a civil union license or the parties entered into a similar legal relationship in another jurisdiction. C.R.S. §§ 14-15-109, -110, and -116.

➢ Attorney-Client Privilege. An attorney may not be examined without the consent of the attorney's client as to any communication made by the client to the attorney. An attorney may not be examined regarding advice given to a client in the course of professional employment. An attorney's secretary, paralegal, legal assistant, stenographer, or clerk may not be examined without the consent of that person's employer concerning any fact obtained through such employment. C.R.S. § 13-90-107(1)(b). An attorney is not prevented from testifying about otherwise privileged information when the attorney is defending his or her conduct. Browning v. Potter, 271 P.2d 418, 422 (Colo. 1954); People v. Mullins, 532 P.2d 736, 738 (Colo. 1975). Statements made initially in confidence lose the shield of the attorney-client privilege if the statements are subsequently disclosed to third parties. Lanari v. People, 827 P.2d 495, 499 (Colo. 1992). Communications made to an attorney for the purpose of committing a crime are not privileged. Law Offices of Bernard D. Morley, P.C. v. MacFarlane, 647 P.2d 1215, 1220 (Colo. 1982).
➢ Attorney-Client Privilege; Joint Defense. Communications between co-defendants and the attorney who represents them both for the sake of discussing common interests in a joint defense are also privileged. Gordon v. Boyles, 9 P.3d 1106, 1124 (Colo. 2000).

➢ Clergy Privilege. A clergy member, minister, priest, or rabbi shall not be examined without his or her consent and the consent of the person making the communication. This privilege applies only to confidential communications made to a clergy member, minister, priest, or rabbi in that person's professional capacity in the course of discipline expected by the religious body to which he or she belongs. C.R.S. § 13-90-107(1)(c).

➢ Physician/Patient. A physician, surgeon, or registered

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