AuthorAshley S. Lipson
Chapter 9
§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
Is It Admissible? 9-2
§9.509 Informant - Police Privilege
§9.509.1 State Application
§9.510 Journalist - News Source Privilege
§9.510.1 State Application
§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
9-3 Privilege §9.300
§9.100 Introduction
Throughout the years, legal scholars and judg-
es have formed the notion that thieves, muggers,
rapists, hit-and-run drivers, squealers, unfaith-
ful 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
relationship, law, or constitutional guarantee.
Questions that violate an established privilege
may be objected to. If no objection is made, how-
ever, 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 jurisdic-
tions (i.e., 50 federal plus 35 states), avoids the
privilege issue by referring the reader back to
the laws of the respective states. But despite the
diversity, the reader should detect some consis-
tency with respect to certain basic principles that
transcend state lines.
§9.200 Quick Explanation
The following is a list of eleven classic
groups involving privileged communications.
Certain conversations between the people listed
in each duet are privileged, meaning that those
questions are objectionable, 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)
1. What did your lawyer tell you to say at
this hearing?
2. Did you confess any crimes to your
3. What did you tell your psychiatrist?
Questions that involve conversations or exchang-
es of information between professionals, clergy-
men, and close family members. Any “confiden-
tial communication” might be a candidate for
some type of privilege.
“Objection. Privileged.”
A. “The privilege has been waived.”
B. “Opposing counsel has not
established the foundation ele-
ments required for the assertion of
this privilege.” (See §9.501 through
§9.300 General Legal
The laws pertaining to privilege are com-
plex, at times inconsistent, and may vary from
state to state. So determining whether or not a

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT