Evidentiary Privileges

Introduction

Evidentiary privileges protect confidential communications from disclosure in legal proceedings. Privileges are exceptions to the general principle that the public is entitled to every person’s evidence. They reflect the law’s judgment that certain relationships and interests merit protection even at the cost of losing relevant evidence. The principal privileges in American law are the attorney-client privilege, the work product doctrine, the spousal privileges, and the privilege against self-incrimination.

The Attorney-Client Privilege

The attorney-client privilege is the oldest and most fundamental evidentiary privilege. It protects confidential communications between a client and an attorney made for the purpose of obtaining legal advice or assistance. The privilege belongs to the client, not the attorney, and may be waived only by the client.

The elements of the privilege require: a communication, made between privileged persons, in confidence, for the purpose of obtaining or providing legal assistance. The privilege extends to communications with agents and employees of the attorney and client who are necessary to facilitate legal representation. The privilege does not protect the underlying facts; it protects only the communication of those facts.

Work Product Doctrine

The work product doctrine (also known as the Hickman doctrine, after Hickman v. Taylor, 1947) protects materials prepared by an attorney in anticipation of litigation. The doctrine is codified in FRCP 26(b)(3) and provides qualified protection for documents and tangible things prepared by or for a party or its representative in anticipation of litigation.

Opinion work product —the attorney’s mental impressions, conclusions, opinions, or legal theories—receives nearly absolute protection. Fact work product —factual materials prepared in anticipation of litigation—receives qualified protection and may be discovered upon a showing of substantial need and inability to obtain the equivalent without undue hardship.

The Spousal Privileges

Two distinct spousal privileges exist. The spousal testimony privilege (or adverse testimony privilege) allows a spouse to refuse to testify against their current spouse in criminal proceedings. The privilege belongs to the witness-spouse and may be asserted to avoid testifying about any matter, not just confidential communications. The Supreme Court held in Trammel v. United States (1980) that the privilege belongs to the witness-spouse, not the party-spouse.

The marital communications privilege protects confidential communications made between spouses during the marriage. The privilege belongs to both spouses and survives the termination of the marriage. It applies only to communications intended to be confidential and does not apply to communications about future crimes.

The Doctor-Patient Privilege

The doctor-patient privilege protects confidential communications between a patient and a physician made for the purpose of diagnosis or treatment. The privilege is governed by state law in most cases, as there is no federal common law doctor-patient privilege. The Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule provides privacy protection for health information, but does not create an evidentiary privilege.

The Privilege Against Self-Incrimination

The Fifth Amendment privilege against self-incrimination provides that no person shall be compelled in any criminal case to be a witness against themselves. The privilege applies to any proceeding, civil or criminal, where the witness reasonably believes that their testimony could incriminate them. The privilege protects only testimonial communications, not physical evidence or bodily samples.

A witness may invoke the privilege in response to any question that could lead to criminal prosecution. The government may not comment on a defendant’s invocation of the privilege at trial. If the government grants immunity, the witness may be compelled to testify.

Waiver and Exceptions

Privileges may be waived by voluntary disclosure or by conduct inconsistent with the assertion of privilege. Disclosure to a third party generally waives the privilege, as it is inconsistent with the maintaining of confidentiality. The crime-fraud exception provides that communications made in furtherance of a crime or fraud are not privileged.

Conclusion

Evidentiary privileges balance the need for relevant evidence against the value of protecting confidential relationships. The attorney-client privilege and work product doctrine are fundamental to the legal system, while spousal privileges protect marital privacy. The privilege against self-incrimination is a constitutional right. Understanding privileges is essential for navigating discovery and trial.