Privilege

• Author: Ashley S. Lipson
• Pages: 164-210

9-162

chApter 9

Privilege

§9.100 Introduction

§9.200 Quick Explanation

§9.300 General Legal Analysis

§9.400 State Rules

§9.500 The Privileges Individually Considered

§9.501 Lawyer - Client Privilege

§9.501.1 State Application

§9.501(a) Paralegal Privilege

§9.502 The Work Product Doctrine

§9.503 Doctor - Patient Privilege

§9.503.1 State Application

§9.504 Therapist - Patient Privilege

§9.504.1 State Application

§9.505 Accountant - Client Privilege

§9.505.1 State Application

§9.506 Clergyman - Penitent Privilege

§9.506.1 State Application

§9.507 Husband - Wife Privilege

§9.507.1 State Application

§9.508 Parent - Child Privilege

§9.508.1 State Application

§9.509 Informant - Police Privilege

§9.509.1 State Application

§9.510 Journalist - News Source Privilege

§9.510.1 State Application

9-163 Privilege

§9.511 Confidential Institutional Communications

§9.511.1 State Application

§9.512 Privilege Against Self-Incrimination

§9.512.1 State Application

§9.513 Self-Critical Analysis Privilege

§9.100 Is It Admissible? 9-164

§9.100 Introduction

Throughout the years, legal scholars and judg-

es have formed the notion that thieves, muggers,

rapists, hit-and-run drivers, squealers, unfaithful

spouses, and wrongdoers in general, should all have

somewhere safe to go and talk of their afflictions.

At least, that’s what the creators and perpetuators of

the law of privilege believe. More particularly, the

theory suggests that it is beneficial if certain people

can be “trusted” to keep quiet. Were this not the

case, people would be reluctant to seek professional

help. And this would, of course, create a national

crisis—shrinks, doctors, and we lawyers might be

out of business.

In a courtroom setting, the term “privilege”

means that the witness has a legal right to refuse

to answer a question because of some special rela-

tionship, law, or constitutional guarantee. Questions

that violate an established privilege may be objected

to. If no objection is made, however, the privilege

will be waived.

The law of privilege presents a unique set

of problems because of its lack of uniformity

throughout the fifty states. Some states recognize

privileges that others do not. Even the Federal Rules

of Evidence, which have created nearly-complete

uniformity for 85 out of 100 jurisdictions (i.e., 50

federal plus 35 states), avoids the privilege issue by

referring the reader back to the laws of the respec-

tive states. But despite the diversity, the reader

should detect some consistency with respect to cer-

tain basic principles that transcend state lines.

§9.200 Quick Explanation

The following is a list of eleven classic groups

involving privileged communications. Certain con-

versations between the people listed in each duet are

privileged, meaning that those questions are objec-

tionable, and need not be answered. We place some

emphasis upon the word “certain,” because there

are exceptions. Here is the list of the duos:

1. Lawyer - Client

2. Doctor - Patient

3. Therapist - Patient

4. Accountant - Client

5. Clergyman - Penitent

6. Husband - Wife

7. Parent - Child

8. Informant - Police

9. Journalist - News Source

10. Confidential Institutional Communications

11. Self-Incrimination (i.e., Person - Self)

EXAMPLES OF PRIVILEGED QUESTIONS:

1. What did your lawyer tell you to say at this

hearing?

2. Did you confess any crimes to your priest?

3. What did you tell your psychiatrist?

WHAT TO LOOK FOR:

Questions that involve conversations or

exchanges of information between professionals,

clergymen, and close family members. Any “con-

fidential communication” might be a candidate for

some type of privilege.

OBJECT AND RESPOND

OBJECTION:

“Objection. Privileged.”

POTENTIAL RESPONSES TO

OBJECTION:

A. “The privilege has been waived.”

B. “Opposing counsel has not established

the foundation elements required for

the assertion of this privilege.” (See

§9.501 through §9.512.)

§9.300 General Legal Analysis

The laws pertaining to privilege are complex, at

times inconsistent, and may vary from state to state.

So determining whether or not a question seeks priv-

ileged information is not always a simple task. The

Federal Rules of Evidence, which normally provide

a model for the states to follow, offer very little help.

Fed. R. Evid. 501 directs the reader to other sources

with the following wordy instructions:

Privileges in General. The common law—

as interpreted by United States courts in the

light of reason and experience—governs a

claim of privilege unless any of the follow-

ing provides otherwise: the United States