AJ 104 Chapter 9

Privileged Communications

Basis for Privileges

Our Legal System operates on the basic concept that what a person says can be used against him/her.

Society has determined that there are certain relationships where it is important to maintain and encourage confidentiality.

Privileges were recognized as common law dating back to England 1800’s

Basis for Privileges

When a privilege is established, there is corresponding rule that the holder of the privilege cannot be punished for using that privilege.

Communications covered by the various privileges are also hearsay. If an exception to the privilege applies, is it automatically admissible?Exception to privilege & hearsay rule

Basic Rules for Privileged Communications

1. Statements must be under circumstances that indicate confidentiality is expected.

2. Relationship between the individuals must be recognized as entitled to a privilege.

3. Parties must not reveal confidential statements to others.

4. Privileged communications are admissible only if there is an exception to the privilege that covers the communication.

Other Evidentiary Rules That Must Be Considered (True or False)

1. Statement must be relevant2. All privileged communication is hearsay3. Statements are admitted into evidence only

if covered by an exception to the Hearsay Rule

4. Privilege communication that are in writing: Must be authenticated Must satisfy the Best Evidence Rule

There must be a confidential communication Conversation applies to oral and writtenPrivate conversationSealed EnvelopesHow it is storedFax with cover sheet indicating privileged

The appropriate relationship must have existed between the parties

Basis for Privileges

A person can voluntarily waive a privilege This is most commonly done by revealing the

privileged information to a third party. Example?? Exception:

If a witness claims a privilege and a judge rules incorrectly, the witness must testify but the privilege is not waived.

Commonly Used Privileges

Attorney – Client Husband – Wife Physician – Patient Clergy –Penitent Privilege for Official Information Media – Reporter

Attorney – Client

Attorney – Client

A client can prevent his/her attorney from testifying regarding information the client revealed in confidence

In order for this privilege to be valid four conditions must apply:

Attorney – Client

Attorney – a person the client reasonably believes is licensed to practice law

Client – a person who consults with an attorney for the purpose of obtaining legal advice

Attorney – Client

What’s covered?Confidential communication between

attorney & client regarding the legal services sought.

Who holds the privilege?The Client

Exceptions:Consultation in preparation for future

crimes.

True or False?

Attorney Client applies if a defendant ask his attorney to conceal evidence

If an attorney is sought as a friend the privilege would apply

Attorney Client privilege applies after the death of the client

If the attorney believes the client will inflict death or bodily harm in the near future.

Examples, page 196.

Husband – Wife Privilege….This

Husband – Wife Privilege

There are two types of privileges1. Privilege for confidential communications

A husband and wife may prevent the other from testifying about communications made in confidence during their marriage

2. Privilege not to testify Depending on state law, either the defendant’s spouse

has the right to refuse to take the witness stand and testify against his/her spouse

The defendant has the right to prevent his/her spouse from taking the witness stand.

Husband – Wife Privilege

Husband and Wife – valid marriage is required In states recognizing common law marriages,

parties to valid common-law marriage are covered.

Who is covered? Confidential communications made during the during the

marriagemarriage

Husband – Wife Privilege

Who holds the privilege?Both husband and wife. Either one can evoke it

Exceptions common in criminal cases:Crimes committed by one spouse against

another spouseCrimes committed by one spouse against the

children of either spouseFailure to support a spouse or child & bigamy (

examples, page 198)

Physician – Patient Privilege

Did not exist as a common law. It wasn’t until 1828 it appeared as a statute in the state of New York.

It is similar to the attorney client privilege. The patient is protected as long as there is a reasonable belief that the physician is licensed to practice medicine.

The reason for the privilege is that the belief that the doctor cannot adequately care for a patient unless she has full information about the patient’s condition.

Physician – Patient Privilege

Physician – Person reasonably believed by the patient to be licensed to practice medicine. Usually includes MD’s, osteopaths, chiropractors. Also may include Psychotherapist and Psychologists.

Patient – Person who consulted physician for purpose of diagnosis or treatment.

Physician – Patient Privilege

What is Covered? Information obtained by the physician for the

purpose of diagnosis or treatment of the patient. Who holds the privilege?

The patient Exceptions in criminal cases

Advice sought on how to conceal a crime, or help plan a crime.

Physicians must report this information

Covered or Not?

Man tells his doctor he had not been sleeping well and that he was hearing voices telling him to attack people. Yes

Blood and urine samples requested by the police in cases involving driving under the influence of alcohol. No

Examples, page 200 – 201

Other Exceptions to the Privilege

Autopsy Results….why? However, the patient can claim the privilege if

the physician has died Some state require mandatory requirements

of:Gunshot woundsFetal deathsVDAbused Children

Clergy – Penitent Privilege

Clergy – Penitent Privilege

A penitent may prevent a member of the clergy from testifying about what the penitent revealed in confidence.

The communication must have been made in confidence for the purpose of obtaining spiritual guidance. It doesn’t cover other situations (marriage

counselor, non-confidential setting)

Clergy – Penitent Privilege

Clergy: Priest, minister, or religious practitioner. Penitent: Person who consults clergy for spiritual

advice What is covered?

Confidential Communications

Who holds the privilege” Both clergy & penitent

Clergy – Penitent Privilege

Exceptions? Traditionally, none

Some states require the clergy to report incidents of child abuse

Both the clergy and penitent have the right to refuse to reveal what was said

Neither the prosecutor or defense can compel a member of the clergy to testify

Covered or Not?

Man went to confession and told the priest he committed double murder

A woman told her rabbi at a party she had a bad habit. She loved to shop, shoplift to be more exact

Examples pages 202 – 203

Privilege for Official Information

There was a common – law privilege for official government documents if their disclosure would be against the “public interest.” Covered Military and Diplomatic secrets

The federal Freedom of Information Act has made it easier to obtain many government documents.

Table 9-1 page 203

Freedom of Information Act

Identity of Informant

Allows access to information retained by federal government.

Police have privilege not to disclose identity of informants but judge can order disclosure if crucial to defense

Table 9-1 page 203

Ongoing – Investigation

Personnel Records

Police the have right to refuse to disclose information about an ongoing investigation. Privilege ceases once the investigation is completed.

Personnel records of government employees are privileged. Judge can order disclosure of relevant information.

$$Extra Credit$$

Define Diplomatic Immunity What is the Freedom of Information Act

Name two agencies you would contact regarding obtaining information

10 points due Tuesday, Oct. 25th midnight.

Police Informant Privilege

Police: Applies to all law enforcement agencies

Informant: Person who supplies information to police in

confidence What is covered?

Name and address of informant Who holds the Privilege?

Law enforcement agency

Exceptions

Identity of informant must be disclosed if it is important in the defendant’s case.

If the life of the informant is in danger, or concealment is necessary in other cases, police may refuse to disclose.

The police cannot prevent an informant from disclosing his/her own identity

Examples page 204 – 205.

Police Personnel Files

Many states consider police personnel files privileged except when there is litigation between the law enforcement agency and the employee.

Police Personnel Files

Personnel Files Permanent personnel records on an employee. This

includes investigations of an officer conducted by internal affairs.

What is covered? Records concerning the performance of the officer

and investigations of his/her conduct. Who holds the privilege?

Law enforcement agency

Exceptions

Must disclose information relevant to the defense.

Also in cases where a defendant is claiming self – defense, prior allegations of brutality against the officer would be relevant.

Examples, page 206.

Media Reporter Privilege

The news media plays a very important role in our society.

The important of their role is reflected in the First Amendment’s freedom of the press.

There is an assumption that the press would not be able to obtain sensitive information if the reporter could not guarantee the identity of their source.

Privilege For News Reporter

News reporter:Person employed by media to investigate

stories and report on them. Media includes print, television, and radio.

What is covered?Reporter’s notes, and identity of informants.

Who holds the privilege?Reporter

Exceptions

Some states make an exception in the prosecution of serious crimes if it can be shown that there is no other source for the information requested.

The privilege generally covers all information discovered by the reporter that has not been published.

Examples, page 207.