Privileged Communication

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PRIVILEGED COMMUNICATION

An exchange of information between two individuals in a confidential relationship.

A privileged communication is a private statement that must be kept in confidence by the recipient for the benefit of the communicator. Even if it is relevant to a case, a privileged communication cannot be used as evidence in court. Privileged communications are controversial because they exclude relevant facts from the truth-seeking process.

Generally, the laws that guide civil and criminal trials are designed to allow the admission of relevant evidence. Parties generally have access to all information that will help yield a just result in the case. Privileged communications are an exception to this rule.

Privileged communications exist because society values the privacy or purpose of certain relationships. The established privileged communications are those between wife and husband, clergy and communicant, psychotherapist and patient, physician and patient, and attorney and client.

These relationships are protected for various reasons. The wife-husband and clergy-communicant privileges protect the general sanctity of marriage and religion. The psychotherapist or physician and patient privilege promotes full disclosure in the interests of the patient's health. If patients were unable to keep secret communications with psychotherapists or physicians relating to treatment or diagnosis, they might give doctors incomplete information. If doctors received incomplete information, they might be unable to administer health care to the patient, which is the very purpose of the doctor-patient relationship.

The attorney-client privilege exists for roughly the same reason as the physician-patient privilege. In order to secure effective representation, a client must feel free to discuss all aspects of a case without the fear that her attorney will be called at trial to repeat her statements. Likewise, to retain the client's trust and do his job properly, the attorney must be allowed to withhold from the court and opposing party private communications with the client.

A communication is not confidential, and therefore not privileged, if it is overheard by a third party who is not an agent of the listener. Agents include secretaries and other employees of the listener. For example, a communication between a psychotherapist and patient would be privileged even if the psychotherapist's secretary happened to overhear it. In such a case, the secretary could not be forced to testify about the communication. However, a communication between a psychotherapist and a patient on a public elevator occupied by third parties would not be privileged and could be used in court.

Privileged communications are not always absolute. For instance, a criminal defendant may be able to access communications between an accuser and the accuser's doctor if the defendant's interest in the disclosure, in the opinion of the court, outweighs the interest in confidentiality. The court will consider such a request only if the defendant can establish a reasonable probability that important information exists in the communication that will be relevant to the case.

Various jurisdictions may apply the concept of privilege in slightly different ways. For example, some jurisdictions distinguish between the two parties to a communication, calling one party the keeper or holder of the privilege. Other states regard the privilege as being held, and capable of being asserted, by both parties. Some states, for example, give the marital communications privilege to both parties, allowing either party to avoid testifying and to prevent the other from testifying as to communications made within the privacy of the marital relationship. Other states give the privilege to the testifying spouse. This gives the testifying spouse the power to waive the privilege and testify against the other spouse.

States occasionally change their laws to give the privilege to both parties or to take it from one of the parties. For example, a state may give the privilege to both clergy and communicant. Under such a law, either party to the communication could block its disclosure. In the alternative, a state could give the privilege only to the communicant, in which case the communicant could waive the privilege and obtain testimony from the cleric. These variations reflect the struggle by the courts to balance the need for information to reach a just result against the public policy of encouraging free communication within certain relationships by making these communications privileged.

For federal cases, the law of privileged communications is governed by the state law in which the federal court sits. Within particular jurisdictions, the precise rules regarding privileged communications may be periodically redefined or adjusted as new circumstances are presented. In some states a person's relationships with sexual assault counselors, social workers, and juvenile diversion officers have been given a qualified privilege of confidentiality. In these states the court may hold a private hearing to determine whether the information is necessary to the requesting party's case or defense before ordering disclosure of the information. Many legal advocates have supported the creation of a privilege between parents and offspring, but very few courts and legislatures have recognized such a privilege.