Section 14.1 The Nature of Privileges

• Library: Evidence 2017

I. (§14.1) The Nature of Privileges

“[A] privilege is ‘[a]n evidentiary rule that gives a witness the option not to disclose the fact asked for, even though it might be relevant . . . esp[ecially] when the information was originally communicated in a professional or confidential relationship.’” State ex rel. Hope House, Inc. v. Merrigan, 133 S.W.3d 44, 49 (Mo. banc 2004) (quoting Black’s Law Dictionary 273 (7^th ed. 1999)). “[A] privileged communication is a ‘communication that is protected by law from forced disclosure.’” Merrigan, 133 S.W.3d at 49 (quoting Black’s Law Dictionary 273).

The concept of privilege is an exception to the usual rule of courts that all evidence material, relevant and competent to a judicial proceeding shall be revealed if called for. Justice operates upon disclosure, not secrecy. Society in general, and courts and legislatures in particular, have recognized that certain exceptions to that general rule must be made, either for the protection of basic human individual needs or for the protection of the society itself.

Ex parte McClelland, 521 S.W.2d 481, 483 (Mo. App. E.D. 1975).

“Privileges which protect basic individual needs, such as lawyer-client, physician-patient, cleric-penitent, and self-incrimination are absolute. Privileges which must...