Rule 501 General Rule

• Jurisdiction: Arizona

Except as otherwise required by the Constitution of the United States, the Constitution of Arizona, or by applicable statute or rule, privilege shall be governed by the principles of the common law as they may be interpreted in light of reason and experience, or as they have been held to apply in former decisions.

Comment

Unlike the other Rules of Evidence, which exclude evidence because it is unreliable, subject to misuse, confusing, or time consuming, rules creating privileges exclude evidence that is usually reliable and relevant. The purpose of a privilege is to encourage certain communications by removing the fear that such communications may be used against a person; the justification is that the benefits of the relationship outweigh the detriment to the legal process caused by preclusion of this type of evidence. For a communication to be privileged, it must meet four criteria: (1) it must originate in a confidence that it will not be disclosed; (2) confidentiality is essential to the full maintenance of the relationship of the parties; (3) the relationship is one that the community believes should be fostered; and (4) the injury to the relationship that would occur from disclosure would be greater than the benefit gained by the aid given to the litigation.[1] Because the public has the right to every person's testimony, and because statutes granting testimonial privileges contravene that right, such statutes are strictly construed and should be weighed against other policy considerations when determining whether to allow a witness to claim a privilege.[2]

Because the purpose of a privilege is to promote candor, it is necessary for the participants to know that the privilege exists when the communication is made and that it will protect the communication later, thus a qualified privilege is tantamount to no privilege at all.[3] If the party that would possess the privilege believes a privileged relationship exists and the statement will not be disclosed, it does not matter that, unbeknownst to that party, the situation of the person hearing the statement is such that there could not be a privileged relationship.[4]

The party wishing to invoke a privilege has the burden of establishing that a privileged relationship exists.[5] This is a preliminary question for the trial court under Rule 104(a), and therefore should be decided out of the presence of the jurors, as provided by Rule 103(c). The privilege protects only the substance of the communication, but does not preclude testimony that a communication took place, the date, place, or circumstances of the communication, or who was present.[6] In order for a communication to be privileged, it must be confidential; the presence of a third party therefore will generally defeat the privilege.[7]

If a privileged relationship exists between a party and a witness, the other party may not comment on the failure of the party to call that witness.[8] By the same token, the party with the privilege should not be allowed to comment on the failure of the other party to call the witness.[9]

A privilege generally belongs to the person making the privileged statement, thus the privilege survives even after the person's death.[10] When an employee in a corporation makes a communication on behalf of the corporation to corporate counsel, the communication is privileged, and the privilege belongs to the corporation, not to the person making the communication.[11] When an employee is seeking legal advice in the employee's individual capacity, all communications initiated by the employee and made in confidence to the employer's counsel are privileged, and the privilege belongs to the employee.[12]

By taking certain actions, a party may waive a privilege,[13] such as by asserting a claim or a defense when information in a privileged communication would refute that claim or defense,[14] or by allowing a witness to refresh the witness's memory with a writing subject to a privilege.[15] A party may waive a privilege as provided by statute,[16] and by statute all privileges, except the attorney-client privilege, are abrogated in any proceeding involving the abuse of a child.[17]

Cases

In General.

501.010 The privilege against self-incrimination applies only in a criminal proceeding or to testimony that could be used in a criminal proceeding; there is no equivalent privilege to refuse to testify to avoid civil liability.

Tracy v. Superior Ct., 168 Ariz. 23, 810 P.2d 1030 (1991) (Navajo Nation did not act improperly in attempting to obtain witness's testimony in criminal action against persons who had allegedly conspired to obtain money from tribe by selling tribal land at inflated price, even though Navajo Nation might be able to use witness's testimony against him in civil action to recover money).

501.020 When a discovery request made in a civil proceeding may tend to incriminate the party on whom the request is served, the party may invoke privilege against self-incrimination.

State v. Ott, 167 Ariz. 420, 808 P.2d 305 (Ct. App. 1990) (answering request for admissions in civil RICO action would violate defendant's privilege against self-incrimination).

501.030 A statute compelling a person to give testimony must provide immunity no less extensive than the privilege against self-incrimination, and must prohibit the prosecution from using the compelled testimony in any respect.

State v. Gertz, 186 Ariz. 38, 918 P.2d 1056 (Ct. App. 1995) (because state's attorney who represented BOMEX in license suspension proceedings against defendant gave transcripts of defendant's compelled testimony to prosecutor and was with prosecutor throughout trial, state failed to meet burden of showing prosecution was independent of compelled testimony).

501.040 Privileges are not based on constitutional mandate but, rather, by statute, rule, and common-law interpretation, and thus may vary from jurisdiction to jurisdiction.

Tracy v. Superior Ct., 168 Ariz. 23, 810 P.2d 1030 (1991) (fact that Navajo Nation might not recognize attorney-client privilege or accountant-client privilege was not an "undue hardship" that would prevent court from enforcing order of Navajo district court pursuant to Uniform Act to Secure Attendance of Witnesses).

City of Tucson v. Superior Ct. (Dolny), 167 Ariz. 513, 809 P.2d 428 (1991) (because no evidence exists that either Arizona courts or legislature have considered question whether there should be a privilege for communications considered in process of selecting a city magistrate, there is nothing to indicate that either have rejected such a concept).

Humana Hosp. Desert Valley v. Superior Ct. (Edison), 154 Ariz. 396, 742 P.2d 1382 (Ct. App. 1987) (A.R.S. Sec. 36-445.01(A) & (B) created a privilege for medical peer review proceedings, and records and materials prepared in connection with proceedings).

Requirements for a Privilege.

501.050 To be privileged, a communication must meet four criteria: (1) it originates in a confidence that it will not be disclosed; (2) confidentiality is essential to the full maintenance of the relationship of the parties; (3) the relationship is one that the community believes should be fostered; and (4) the injury to the relationship that would occur from disclosure would be greater than the benefit gained by the aid given to the litigation.

Samaritan Found. v. Goodfarb, 176 Ariz. 497, 862 P.2d 870 (1993) (court made statement in context of a general discussion).

City of Tucson v. Superior Ct. (Dolny), 167 Ariz. 513, 809 P.2d 428 (1991) (because person commenting adversely on qualifications of prospective city magistrate might face retaliation if that person were selected, person would expect that comments would not be disclosed).

City of Tucson v. Superior Ct. (Dolny), 167 Ariz. 513, 809 P.2d 428 (1991) (because confidentiality is essential to full maintenance of relationship and flow of information between those commenting on prospective city magistrate and selection commission, any communications should be confidential).

City of Tucson v. Superior Ct. (Dolny), 167 Ariz. 513, 809 P.2d 428 (1991) (because selection commission's ability to obtain information is crucial to maintaining quality of judges selected, community would want these communications to be confidential).

City of Tucson v. Superior Ct. (Dolny), 167 Ariz. 513, 809 P.2d 428 (1991) (because injury to relationship between selection commission and those communicating with it that would occur from disclosure would be greater than benefit to litigation initiated by one not selected, any communications should be confidential).

State v. Fodor, 179 Ariz. 442, 880 P.2d 662 (Ct. App. 1994) (because defendant believed she was consulting attorney in a professional capacity, her statements to him were protected by attorney-client privilege).

501.060 The burden of showing the relationship, the confidential character of the communication, and other necessary facts is upon the party claiming the privilege, and the determination whether a privileged relationship exists is for the trial court, which must make this determination based upon the surrounding circumstances.

G & S Invest. v. Belman, 145 Ariz. 258, 700 P.2d 1358 (Ct. App. 1984) (evidence established that decedent contacted and consulted witness not as attorney but as friend, therefore privileged relationship did not exist).

State v. Sands, 145 Ariz. 269, 700 P.2d 1369 (Ct. App. 1985) (trial court did not abuse discretion in determining that no privilege existed between defendant holding hostages and psychologist called in by police to negotiate with defendant).

Purpose of a Privilege.

501.070 Because the purpose of a privilege is to promote candor, it is necessary for the participants to know that the privilege exists when the communication is made and that it will protect the communication later, thus a qualified privilege is tantamount to no privilege at all.

Samaritan Found. v. Goodfarb, 176 Ariz. 497, 862 P.2d 870 (1993) (court...