Privilege

• Author: Ashley S. Lipson
• Pages: 181-232

9-1

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

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)

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 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.

OBJECT AND RESPOND

OBJECTION:

“Objection. Privileged.”

POTENTIAL RESPONSES TO

OBJECTION:

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

§9.512.)

§9.300 General Legal

Analysis

The laws pertaining to privilege are com-

plex, at times inconsistent, and may vary from

state to state. So determining whether or not a