Anaya Nolan
The common law, as interpreted by United States courts, governs claims of privilege unless state law provides otherwise. Privileges are rules of evidence that allow the holder to refuse to disclose information or withhold evidence in a proceeding. Common law privileges are derived from statute law or court interpretations. In the US, privileges include lawyer-client privilege, psychotherapist-patient privilege, husband-wife privilege, and adverse spousal testimonial privilege. California, for example, recognizes mediation and settlement communication privileges, and its statutory law on privileges applies in state court and federal diversity cases.
| Characteristics | Values |
|---|---|
| Common law privileges | Lawyer-client, psychotherapist-patient, husband-wife, communications to clergymen, political vote, trade secrets, secrets of state, identity of informer |
| Executive, testimonial, attorney-client, deliberative process, work-product, accountant-client | |
| Adverse spousal testimonial privilege | |
| Privilege against self-incrimination, lawyer-client, lawyer referral service-client, privilege for confidential marital communications, physician-patient | |
| Mediation privilege, settlement communication privilege | |
| Privilege not to testify against spouse | |
| Statutory law privileges | Privilege of defendant in a criminal case, privilege against self-incrimination, lawyer-client, lawyer referral service-client, privilege not to testify against spouse, privilege for confidential marital communications, physician-patient |
| Privilege in civil cases | |
| Privilege in criminal cases |
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What You'll Learn
Lawyer-client privilege
The purpose of lawyer-client privilege is to encourage clients to make full and frank disclosures to their attorneys, allowing lawyers to provide candid advice and effective representation. This principle can be traced back to medieval England, where even the king could not compel an attorney to disclose privileged communications. By the 18th century, the concept had solidified in English common law and was later adopted in the American legal system.
For lawyer-client privilege to apply, certain elements must be met. Firstly, there must be a communication made between privileged persons. This typically includes the client and their lawyer or someone acting as a lawyer, such as their subordinate. Secondly, the communication must be made in confidence and not in the presence of strangers unless they are essential to the attorney-client relationship, such as an interpreter. Thirdly, the communication must be made for the purpose of seeking, obtaining, or providing legal assistance, including legal advice or services. It is important to note that communications solely related to non-legal business matters are not usually privileged. Finally, the privilege must be claimed and not waived by the client.
There are, however, exceptions to lawyer-client privilege. For instance, if a client seeks legal advice to further a crime, tort, or fraud, the privilege does not apply. This is known as the crime-fraud exception. Additionally, some courts may limit the privilege if there is an overriding public policy interest, such as protecting a child. Lawyer-client privilege can also be waived if a client uses their attorney's advice as a defence or discloses confidential information to collect payment for services rendered.
In the United States, lawyer-client privilege is recognized as a fundamental rule of professional ethics and has been affirmed by the Supreme Court on multiple occasions.
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Adverse spousal testimonial privilege
The spousal testimonial privilege is held by the witness-spouse, meaning they cannot be forced to testify against their spouse, who is typically the defendant or the subject of a grand jury proceeding. This privilege can be waived if the witness-spouse chooses to testify against their spouse, or if they fail to object to their spouse's testimony. In some states, a spouse can be forced to provide general information, such as the defendant's employment, habits, or schooling, but they are still protected from disclosing confidential communications.
The spousal testimonial privilege does not survive the end of a marriage, and it cannot be invoked in certain scenarios, such as when spouses are suing each other in a civil case, when one spouse has initiated criminal proceedings against the other, or in competency proceedings involving one of the spouses. Additionally, it does not apply to observations of a spouse's actions or gestures, only to private and confidential communications.
In federal courts and a majority of states, the spousal testimonial privilege is limited to criminal proceedings, while a minority of states apply it in both criminal and civil cases.
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Mediation privilege
In the United States, mediation privilege is a legal principle that protects all communications during a mediation process from disclosure in court or other legal proceedings. This privilege is designed to encourage openness and candidness in mediation by assuring parties that their discussions, proposals, and admissions during mediation cannot be used against them in court.
However, mediation privilege is not absolute and does not apply in certain circumstances. For example, under the Uniform Mediation Act (UMA), the privilege does not apply to communications that are made during a session of mediation that is required to be or is open to the public, or to communications that involve threats or plans to inflict bodily injury, or those used to plan or conceal a crime. Additionally, the UMA states that the privilege yields if "there is a need for the evidence that substantially outweighs the intent in protecting confidentiality and the proponent of the evidence shows the evidence is not otherwise available".
In New York, there is no statewide legal framework governing the confidentiality of mediation, and the state has not adopted the UMA. As a result, the rules that govern mediation confidentiality in New York vary, with court-mandated mediations following the rules set by each court, and private mediations governed by contractually agreed-upon provisions.
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Settlement communication privilege
While settlement communications are often deemed inadmissible in court proceedings, this does not equate to them being privileged and confidential. Instead, the inquiry must focus on whether the information is relevant or reasonably calculated to lead to the discovery of admissible evidence.
In California, the Evidence Code prohibits the admission of settlement offers, demands, and negotiations to prove liability or the viability of claims. However, this does not render them privileged. Instead, a fact-specific inquiry is required to determine whether such communications might be discovered or admitted.
Federal and state rules, such as Rule 408, address the admissibility of settlement negotiations. This rule prohibits the use of evidence regarding settlement negotiations to prove or disprove the validity or amount of a disputed claim. However, it is important to note that this rule only pertains to admissibility and does not prevent the discovery of settlement negotiations.
In summary, while settlement communication privilege is often assumed by attorneys, it is not an absolute privilege. Instead, courts consider the relevancy of the information and whether it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement.
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Self-incrimination
The privilege against self-incrimination is a fundamental right in the American legal system, enshrined in the United States Constitution and various state constitutions, including California. This privilege is protected by the Fifth Amendment, which safeguards individuals from being compelled to incriminate themselves in criminal cases. The Fourteenth Amendment further extends this protection to the states.
This right allows individuals to refuse to answer questions, make potentially incriminating statements, or refuse to testify in any criminal case. It is important to note that this privilege only applies to individuals and not artificial entities such as companies or partnerships. The exception is a sole proprietorship, where the custodian of corporate records can assert this privilege.
In California, the privilege against self-incrimination is codified in the California Evidence Code, specifically in Sections 930-940. Section 930 outlines the basic principle, stating that an individual has the right not to be a witness against themselves in a criminal case. Section 931 reinforces this by granting defendants in criminal cases the right to refuse to testify.
While the privilege against self-incrimination is a fundamental right, it can be voluntarily waived by a criminal defendant. In California, this waiver must be explicit and voluntary. For example, a defendant may waive the privilege by testifying in their own defence, providing a statement to law enforcement without coercion, or consenting to a search of their property. Once waived, individuals cannot reclaim the privilege during cross-examination by the prosecution.
The Supreme Court has also clarified the protection against self-incrimination through cases such as Griffin v. California (1965) and Miranda v. Arizona (1966). In Griffin v. California, the Court ruled that neither the prosecution nor the judge may imply that a defendant's silence is an admission of guilt if they invoke their Fifth Amendment right. In Miranda v. Arizona, the Court held that individuals must be informed of their Miranda rights, including the right to an attorney and the right to remain silent, when taken into custody or deprived of their freedom. If these rights are not provided, any self-incriminating statements made are inadmissible in court.
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Frequently asked questions
A privilege in the law of evidence is a rule that allows the holder to refuse to disclose or provide certain information or evidence, or to bar it from being used in a proceeding.
Examples of evidentiary privileges include the lawyer-client privilege, the privilege against self-incrimination, the physician-patient privilege, and the accountant-client privilege.
In federal "question" cases governed by federal law, evidentiary privileges are generally a matter of common law. In state courts and federal "diversity cases," state statutory law on privileges applies. Attorneys practising in both federal and state courts must be familiar with the differences.
The lawyer-client privilege, also known as the attorney-client privilege, protects confidential communications between a client and their legal adviser. The rationale is to allow clients to communicate freely with their lawyers, facilitating the proper functioning of the legal system.
In civil actions and proceedings, where the rule of decision for a claim or defence is supplied by state law, state privilege law applies. In federal court, state law may be absorbed and applied as a matter of federal common law in certain situations.
