# Law and confidentiality **URL:** \ **Category:** Factual Questions\ **Created:** [May 6, 2006, 1:24am UTC](https://boards.straightdope.com/t/law-and-confidentiality/355627 "2006-05-06T01:24:22Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![copperwindow](https://avatars.discourse-cdn.com/v4/letter/c/4af34b/32.png) [@copperwindow](https://boards.straightdope.com/u/copperwindow)\ **Post date:** [May 6, 2006, 1:24am UTC](https://boards.straightdope.com/t/law-and-confidentiality/355627/1 "2006-05-06T01:24:22Z")
If I kill someone and tell my wife, she would not be able to testify against me in a court of law. That goes the same for my lawyer, doctor, or minister. Wha if I tell my doctors RN? Or LPN? What if my doctor is a DO? Or what if I tell my rabbi? Or if I have a spirtual leader? And finially wha if I tell someone with a PHD? ---
**Author:** ![drachillix](https://avatars.discourse-cdn.com/v4/letter/d/48db29/32.png) [@drachillix](https://boards.straightdope.com/u/drachillix)\ **Post date:** [May 6, 2006, 1:36am UTC](https://boards.straightdope.com/t/law-and-confidentiality/355627/2 "2006-05-06T01:36:21Z")
> [@copperwindow](#): > > If I kill someone and tell my wife, she would not be able to testify against me in a court of law. That goes the same for my lawyer, doctor, or minister. Wha if I tell my doctors RN? Or LPN? What if my doctor is a DO? Or what if I tell my rabbi? Or if I have a spirtual leader? And finially wha if I tell someone with a PHD? Your presit and your lawyer IIRC are the only ones who can pull that off and your preist will most likely encourage you to turn yourself in. Dunno about psych types but since your crime has nothing to do with your care or your medical condition, plan on being reported. No cite but the wife thing IIRC is an urban legend. ---
**Author:** ![DxZero](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@DxZero](https://boards.straightdope.com/u/DxZero)\ **Post date:** [May 6, 2006, 1:42am UTC](https://boards.straightdope.com/t/law-and-confidentiality/355627/3 "2006-05-06T01:42:36Z")
> [@drachillix](#): > > Your presit and your lawyer IIRC are the only ones who can pull that off and your preist will most likely encourage you to turn yourself in. Dunno about psych types but since your crime has nothing to do with your care or your medical condition, plan on being reported. No cite but the wife thing IIRC is an urban legend. [Spousal privilege](http://en.wikipedia.org/wiki/Spousal_privilege) No urban legend there. At least, in most cases. Doctor confidentially is valid unless it has anything to do with anyone getting hurt or you hurting yourself. I’ll try and find a cite on that. ---
**Author:** ![southfarthing](https://avatars.discourse-cdn.com/v4/letter/s/e36b37/32.png) [@southfarthing](https://boards.straightdope.com/u/southfarthing)\ **Post date:** [May 6, 2006, 1:44am UTC](https://boards.straightdope.com/t/law-and-confidentiality/355627/4 "2006-05-06T01:44:20Z")
Privileges are governed by two sources of law: the jurisdiction’s rules of evidence and each profession’s code of professional ethics. These rules and codes differ by jurisdiction. For example, here’s a link to my state’s rules of evidence: [http://courts.state.ar.us/rules/index2.html#Evidence](http://courts.state.ar.us/rules/index2.html#Evidence) Scroll down to rules 501-512 for privileges. Here are our rules of professional conduct. See rule 1.6 about confidentiality. [http://courts.state.ar.us/rules/index2.html#Conduct](http://courts.state.ar.us/rules/index2.html#Conduct). Generally, in my state, a lawyer can’t reveal anything that deals with a client’s representation, but he also isn’t allowed to aid a client in committing a crime or fraud. He can only reveal confidential information in some situations. One example is when the revelation will prevent the client from committing a crime or fraud. Some states have done away with spouse privileges, but in my state, you can prevent your spouse from testifying as to private communications, with some exceptions. Note that doctors and ministers are covered in the first link. ---
**Author:** ![DxZero](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@DxZero](https://boards.straightdope.com/u/DxZero)\ **Post date:** [May 6, 2006, 1:50am UTC](https://boards.straightdope.com/t/law-and-confidentiality/355627/5 "2006-05-06T01:50:20Z")
> [@copperwindow](#): > > If I kill someone and tell my wife, she would not be able to testify against me in a court of law. That goes the same for my lawyer, doctor, or minister. Wha if I tell my doctors RN? Or LPN? What if my doctor is a DO? Or what if I tell my rabbi? Or if I have a spirtual leader? And finially wha if I tell someone with a PHD? [Physician-patient privilege](http://en.wikipedia.org/wiki/Doctor-patient_privilege) Every state has different standards, but I think what I said appears to be generally accurate. Pretty sure that there is no standard for confidentality in PHD’s, but I would imagine the same standard for MD’s would apply to their staff, such as nurses. Sorry for the Wiki cites, but I don’t really feel like digging through my crim law book on a Friday night. ---
**Author:** ![southfarthing](https://avatars.discourse-cdn.com/v4/letter/s/e36b37/32.png) [@southfarthing](https://boards.straightdope.com/u/southfarthing)\ **Post date:** [May 6, 2006, 1:50am UTC](https://boards.straightdope.com/t/law-and-confidentiality/355627/6 "2006-05-06T01:50:30Z")
Also, from our rules of evidence (linked above), “A ‘physician’ is a person authorized to practice medicine in any state or nation, or reasonably believed by the patient so to be.” That probably includes your RN, but I think you’d have a hard time arguing that you reasonably believed a non-medical PhD to be authorized to pracitce medicine, in most cases. ---
**Author:** ![Guinastasia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/guinastasia/32/5751_2.png) [@Guinastasia](https://boards.straightdope.com/u/Guinastasia)\ **Post date:** [May 6, 2006, 1:53am UTC](https://boards.straightdope.com/t/law-and-confidentiality/355627/7 "2006-05-06T01:53:00Z")
They can’t force your wife to reveal what she knows, but I do believe that she can voluntarily give up that information, right? ---
**Author:** ![DxZero](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@DxZero](https://boards.straightdope.com/u/DxZero)\ **Post date:** [May 6, 2006, 2:00am UTC](https://boards.straightdope.com/t/law-and-confidentiality/355627/8 "2006-05-06T02:00:05Z")
> [@Guinastasia](#): > > They can’t force your wife to reveal what she knows, but I do believe that she can voluntarily give up that information, right? Yeah. I think that’s the way it works. I’ll try to find a better cite than the one I gave. ---
**Author:** ![southfarthing](https://avatars.discourse-cdn.com/v4/letter/s/e36b37/32.png) [@southfarthing](https://boards.straightdope.com/u/southfarthing)\ **Post date:** [May 6, 2006, 2:00am UTC](https://boards.straightdope.com/t/law-and-confidentiality/355627/9 "2006-05-06T02:00:33Z")
> [@Guinastasia](#): > > They can’t force your wife to reveal what she knows, but I do believe that she can voluntarily give up that information, right? Not in my state, in most cases (in criminal proceedings). “An accused in a criminal proceeding has a privilege to prevent his spouse from testifying as to any confidential communication between the accused and the spouse.” Also, a landmark case in the psychotherapist privilege is _Tarasoff v. Regents of U.C._, a 1976 California case: “When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger. The discharge of this duty may require the therapist to take one or more of various steps. Thus, it may call for him to warn the intended victim, to notify the police, or to take whatever steps are reasonably necessary under the circumstances.” ---
**Author:** ![DxZero](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@DxZero](https://boards.straightdope.com/u/DxZero)\ **Post date:** [May 6, 2006, 2:04am UTC](https://boards.straightdope.com/t/law-and-confidentiality/355627/10 "2006-05-06T02:04:03Z")
> [@DxZero](#): > > Yeah. I think that’s the way it works. I’ll try to find a better cite than the one I gave. [Here](http://www.answers.com/topic/spousal-privilege) “The marital communications privilege is available in most jurisdictions. Most jurisdictions offering it allow a witness spouse to choose whether to testify; some automatically disqualify evidence from a spouse.” Seems that some courts will just not accept any testimony at all from a spouse. I can’t imagine that would go over well in domestic abuse cases. ---
**Author:** ![Guinastasia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/guinastasia/32/5751_2.png) [@Guinastasia](https://boards.straightdope.com/u/Guinastasia)\ **Post date:** [May 6, 2006, 2:10am UTC](https://boards.straightdope.com/t/law-and-confidentiality/355627/11 "2006-05-06T02:10:59Z")
> [@DxZero](#): > > Seems that some courts will just not accept any testimony at all from a spouse. I can’t imagine that would go over well in domestic abuse cases. I think in that case, it would be waived, since you’d have one spouse charging the other with a crime or whatever. Probably the same with divorce cases, or child abuse. ---
**Author:** ![DxZero](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@DxZero](https://boards.straightdope.com/u/DxZero)\ **Post date:** [May 6, 2006, 2:11am UTC](https://boards.straightdope.com/t/law-and-confidentiality/355627/12 "2006-05-06T02:11:17Z")
> [@DxZero](#): > > I can’t imagine that would go over well in domestic abuse cases. Or I can try reading my cites completely… “The privilege also cannot be claimed in certain situations, such as where one spouse is subject to prosecution for crimes committed against the other or against the children of the couple.” ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [May 6, 2006, 2:14am UTC](https://boards.straightdope.com/t/law-and-confidentiality/355627/13 "2006-05-06T02:14:49Z")
Spousal privilege is complicated, and there is some variation between states. Part of the complication comes from the fact that it is really two privileges. In many states, the spouse who is on trial can prevent the other spouse from even taking the stand. This is called a testimonial privilege. For example, a Michigan statute: > [@](#): > > 600.2162 Husband or wife as witness for or against other. > > Sec. 2162. > > (1) In a civil action or administrative proceeding, a husband shall not be examined as a witness for or against his wife without her consent or a wife for or against her husband without his consent, except as provided in subsection (3). > > (2) In a criminal prosecution, a husband shall not be examined as a witness for or against his wife without his consent or a wife for or against her husband without her consent, except as provided in subsection (3). > > (3) The spousal privileges established in subsections (1) and (2) and the confidential communications privilege established in subsection (7) do not apply in any of the following: > > (a) In a suit for divorce, separate maintenance, or annulment. > > (b) In a prosecution for bigamy. > > © In a prosecution for a crime committed against a child of either or both or a crime committed against an individual who is younger than 18 years of age. > > (d) In a cause of action that grows out of a personal wrong or injury done by one to the other or that grows out of the refusal or neglect to furnish the spouse or children with suitable support. > > (e) In a case of desertion or abandonment. > > (f) In a case in which the husband or wife is a party to the record in a suit, action, or proceeding if the title to the separate property of the husband or wife called or offered as a witness, or if the title to property derived from, through, or under the husband or wife called or offered as a witness, is the subject matter in controversy or litigation in the suit, action, or proceeding, in opposition to the claim or interest of the other spouse, who is a party to the record in the suit, action, or proceeding. In all such cases, the husband or wife who makes the claim of title, or under or from whom the title is derived, shall be as competent to testify in relation to the separate property and the title to the separate property without the consent of the husband or wife, who is a party to the record in the suit, action, or proceeding, as though the marriage relation did not exist. [http://www.legislature.mi.gov/(bdqaip45o0rutj55jspx3v55)/mileg.aspx?page=getobject&objectname=mcl-600-2162&queryid=13817469](http://www.legislature.mi.gov/(bdqaip45o0rutj55jspx3v55)/mileg.aspx?page=getobject&objectname=mcl-600-2162&queryid=13817469) Notice that the statute takes care of a key issue. The non-testifying spouse has the power to waive the privilige or assert it. Not every state does it that way. There is also an evidentiary privilege, as illustrated by the rest of the statute: > [@](#): > > (4) Except as otherwise provided in subsections (5) and (6), a married person or a person who has been married previously shall not be examined in a civil action or administrative proceeding as to any communication made between that person and his or her spouse or former spouse during the marriage. > > (5) A married person may be examined in a civil action or administrative proceeding, with his or her consent, as to any communication made between that person and his or her spouse during the marriage regarding a matter described in subsection (3). > > (6) A person who has been married previously may be examined in a civil action or administrative proceeding, with his or her consent, as to any communication made between that person and his or her former spouse during the marriage regarding a matter described in subsection (3). > > (7) Except as otherwise provided in subsection (3), a married person or a person who has been married previously shall not be examined in a criminal prosecution as to any communication made between that person and his or her spouse or former spouse during the marriage without the consent of the person to be examined. > > (8) In an action or proceeding instituted by the husband or wife, in consequence of adultery, the husband and wife are not competent to testify. States vary in the ways that they treat the testimonial privilege, too. ---
**Author:** ![southfarthing](https://avatars.discourse-cdn.com/v4/letter/s/e36b37/32.png) [@southfarthing](https://boards.straightdope.com/u/southfarthing)\ **Post date:** [May 6, 2006, 2:16am UTC](https://boards.straightdope.com/t/law-and-confidentiality/355627/14 "2006-05-06T02:16:05Z")
> [@DxZero](#): > > Seems that some courts will just not accept any testimony at all from a spouse. I can’t imagine that would go over well in domestic abuse cases. Note the exception in my state: “(d) Exceptions. There is no privilege under this rule in a proceeding in which one [1] spouse is charged with a crime against the person or property of (1) the other, (2) a child of either, (3) a person residing in the household of either, or (4) a third person committed in the course of committing a crime against any of them.” So a wife can testify against a husband in a domestic abuse case. Also, the OP was referring to whether the various people could testify as to a confidential conversation in a murder case. The spouse or doctor or minister could tell the police (depending on their professional code of ethics), but would be barred from testimony (in my jurisdiction). ---
**Author:** ![southfarthing](https://avatars.discourse-cdn.com/v4/letter/s/e36b37/32.png) [@southfarthing](https://boards.straightdope.com/u/southfarthing)\ **Post date:** [May 6, 2006, 2:35am UTC](https://boards.straightdope.com/t/law-and-confidentiality/355627/15 "2006-05-06T02:35:14Z")
> [@southfarthing](#): > > The spouse or doctor or minister could tell the police (depending on their professional code of ethics), but would be barred from testimony (in my jurisdiction). Now that I read it, this is not entirely accurate. The confidential statement has to be related to medical treatment to be protected. From my state’s rules of evidence: “A patient has a privilege to refuse to disclose and to prevent any other person from disclosing his medical records or confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional condition, including alcohol or drug addiction, among himself, physician or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient’s family.” So if you tell your doctor, “I killed a guy,” he can testify about it. But if you tell him, “Man, my arm hurts because I was stabbing this guy,” you might have an argument against him testifying. ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [May 6, 2006, 3:19am UTC](https://boards.straightdope.com/t/law-and-confidentiality/355627/16 "2006-05-06T03:19:55Z")
> [@southfarthing](#): > > So if you tell your doctor, “I killed a guy,” he can testify about it. But if you tell him, “Man, my arm hurts because I was stabbing this guy,” you might have an argument against him testifying. A classic case of “stabber’s elbow.” Incidentally, there is no physician-patient privilege at common law, and not all states have encated it by statute. Some of those that have limit it a great deal as well. Federal courts don’t recognize it, unless they’re sitting in diversity and appling state law. The spousal privileges vary from state to state, of cuss. Here in Texas we also have two separate ones, “spousal immunity” and “confidential communications during marriage.” Classic example (which I’ve used here before, so if you notice I’m repeating/plagarizing myself, sue me), a husband come home covered in blood a gruesome murder occurs, a murder for which he is later indicted. The wife sees him all bloody. The prosecutor wants to put her on the stand to testify about what she saw. Under the spousal immunity privilege, she cannot be forced to testify if she doesn’t want to. However, the testifying spouse is the holder of the privilege, not the defendant spouse. She may testify if she wants to. Let’s say that on that night she asked about the blood, and hubbie responds “well, don’t tell anyone, but I’ve been stabbing this guy. Could you fetch my liniment for my stabber’s elbow?” This would be protected by the confidential communications privilege, which acts a lot like the attorney-client privilege. Both spouses hold this privilege, not just the testifying spouse. Even if they are later divorced, she cannot testify as to what she was told in confidence, although she can testify about the bloodstains she saw. There are exceptions, as noted by **southfarthing** and **DxZero** : if the case is one that involves a crime that is “destructive of the family unit”, like spousal abuse or child abuse, the privilege doesn’t apply. Since the rationale of the privileges is preservation of the marriage/family unit, applying the privileges in those cases would defeat their purposes. ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [May 6, 2006, 3:22am UTC](https://boards.straightdope.com/t/law-and-confidentiality/355627/17 "2006-05-06T03:22:33Z")
Argh. I hate correcting myself, but that should read “Classic example (which I’ve used here before, so if you notice I’m repeating/plagarizing myself, sue me), a husband come home covered in blood _on the same night that_ a gruesome murder occurs, a murder for which he is later indicted.” ---
**Author:** ![copperwindow](https://avatars.discourse-cdn.com/v4/letter/c/4af34b/32.png) [@copperwindow](https://boards.straightdope.com/u/copperwindow)\ **Post date:** [May 6, 2006, 3:56am UTC](https://boards.straightdope.com/t/law-and-confidentiality/355627/18 "2006-05-06T03:56:29Z")
> [@pravnik](#): > > A classic case of “stabber’s elbow.” Just to be clear: If I go to my doctor because of my stabber’s elbow and an RN at the office asks me why I’m there to see the doctor and I explain it to her, can she be compelled to testify in a court of law? ---
**Author:** ![DxZero](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@DxZero](https://boards.straightdope.com/u/DxZero)\ **Post date:** [May 6, 2006, 4:00am UTC](https://boards.straightdope.com/t/law-and-confidentiality/355627/19 "2006-05-06T04:00:37Z")
> [@copperwindow](#): > > Just to be clear: If I go to my doctor because of my stabber’s elbow and an RN at the office asks me why I’m there to see the doctor and I explain it to her, can she be compelled to testify in a court of law? I would imagine that doctor-patient privilege extends to his staff. It wouldn’t make much sense for the police not to be able to compel testimony from the doctor, but be able to get it out of the nurse that took all of your info when you first showed up. Admittance records are, however, admissable, IIRC. ---
**Author:** ![DxZero](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@DxZero](https://boards.straightdope.com/u/DxZero)\ **Post date:** [May 6, 2006, 4:03am UTC](https://boards.straightdope.com/t/law-and-confidentiality/355627/20 "2006-05-06T04:03:43Z")
> [@DxZero](#): > > I would imagine that doctor-patient privilege extends to his staff. It wouldn’t make much sense for the police not to be able to compel testimony from the doctor, but be able to get it out of the nurse that took all of your info when you first showed up. > > Admittance records are, however, admissable, IIRC. “…nurses or medical assistants in the room are “extensions” of the doctor for purposes of confidentiality and are covered by the privilege.” [Cite](http://law.enotes.com/everyday-law-encyclopedia/89978) [Next page](https://boards.straightdope.com/t/law-and-confidentiality/355627.md?page=2)