Types of legal privileges?

Factual Questions
1

Standard law disclaimer: I’m not looking for any type of legal advice, I am just looking for general legal information.

Now, on to the qusetion:

My knowledge of the law is limited, and comes almost soley from watching Law and Order reruns. As good of a source as that is ( :wink: ), I have a question related to the types of privleges/confidentialities that a party can have with another party. From what I can tell, there are a few of these, and they are:

Lawyer/Client confidentiality
Doctor/Patient confidentiality
Preist/Confesee confidentiality
Spousal privlege

Now, first question: am I missing any, or are any of those not actual privleges/confidentialities?

Second question: of all the ones that do exist, under what circumstances (if any) are they allowed to be breached? I have seen several episodes where the detectives ask for a patient’s info from a doctor, he says that he dosen’t have to give it up, but they then say he might as well tell them now or else they’ll just get a warrent. So, according to L&O, that type of privlege can be broken with something as simple as a warrent forcing the doctor to talk, or the doctor/patient can talk of their own free will.

I also saw an episode where a preist volunteered info from a confession, because the law could not order him to do so. So in that case it seemed that a priest can volunteer information from a confession, but cannot be forced to tell it. There was an episode that had a lawyer who had doubts about her client where something similar happened, they couldn’t force her to divulge the wherebouts of him (he skipped out on bail,) but she did voluntarily give up his location.

So far we almost have a trend. It seems that anyone can voluntarily give up their right to confidentiality, but only some circumstances can have it forced. However…

One episode had a wife testifying against her husband. The trial was a mistrial, though, because the wife keep going on and on about the things her husbad said to her in private, which constitued spousal privlege. So even though they had a subpeona for her to testify against her husband, she still couldn’t voluntarily give up info about things they said to each other. So in the case of spousal privlege apparanty you can never use what what spouse says to the other on court?

So can someone please fill me in on what Law and Order has right and what they have wrong? Thanks in advance.

2

Reporters will protect the confidentiality of their sources and many people believe the First Amendment creates this privilege, but that isn’t the case (as a number of reporters on the Valerie Plame story are finding out). Some states do have shield laws for reporters (California does, off the top of my head).

3

Those are the biggies, but there are a few others, and you have to bear in mind that not all states recognize all privileges. At common law, there is no physician-patient privilege, but most states have enacted one by statute, but what is and what is not protected varies widely from state to state.

Three states, Minnesota and Idaho by statute and New York by case law, recognize a parent-child privilege covering communications from child to parent, and Louisiana has a parent-child privilege from civil law tradition. Two federal district courts have also recoginized such a privilege. Most all other states and federal courts have declined to recognize it, though.

There are certain government privileges for “state secrets” and informer’s identities, but I’ll have to go into more detail shortly or let others explain.

As far as marriage communications, there are again different types; in Texas we recognize two separate privileges for spousal privilege and marital communications, which I’ll also have to wait till later to explain further. Man, having a job sure cuts into my posting time!

4

The basic mistake here is that the privilege, where there is one, belongs to the person who imparted the information in question, not the person who received it.

In the case of the physician, for example, the information and the privilege belongs to the patient, not the doctor. The physician’s answer to the cops should have been “go ahead, get a warrant.” By “making everyone’s life easier,” the physician has exposed himself to liability by violating his patient’s confidentiality.

5

It would depend on who the “holder” of the privilege is. The “holder” is the person who is entitled to make the decision as to whether the information can be revealed or not. All 50 states recognize the priest-penitent privilege and in the majority either the penitent is the sole holder or the clergy and the penitent are both holders, but in 10 states, the clergyperson is the sole holder of the privilege and makes the decision as to whether the information will be revealed or not. The scenario you describe would have to have taken place in one of those 10 states.

6

Whoops; I mean the situation with the priest. I don’t know of any state where the lawyer is the holder of the attorney-client privilege.

7

We have to distinguish between a duty and a privilege. A duty is when you have an obligation to keep quiet, but if a court orders you to speak, you must speak. A privilege is a right not to speak, and this right to silence (when it applies) cannot be breached even by a court. (Although it is complicated because the court is the arbiter of what does and doesn’t count as privileged.)

Many states (maybe a majority) plus the federal government do not recognize a doctor-patient privilege. Doctors have ethical and, in many cases, legal obligations to keep patient information confidential, but if a court orders them to disclose (such as by warrant or subpoena), they must disclose. In other states, there’s a recognized privilege. In those states, the court cannot force disclosure of privileged material. So in the show you mention, there was presumably no recognized privilege. Otherwise, no warrant could breech it.

So, as to the privileges you mention. There is the Attorney-Client Privilege. That’s not the same as an attorney’s confidentiality obligations – it’s narrower. For instance, a court could order me to disclose the identity of my clients, because that isn’t typically privileged material. But if my client wants to remain unidentitified, I’m obligated to keep that secret unless a court orders me not to. There’s also a separate Attorney Work Product privilege that protects the other side from getting my notes and prep materials.

As noted above, the doctor-patient privilege doesn’t exist everywhere. However, the federal government and most states do recognize a psychotherapist-patient privilege.

Most jurisdictions do recognize the priest-penitent privilege and (I think) the two spousal privileges. There’s also the 5th Amendment privilege against self-incrimination. Am i missing any others? Can’t think of any off the top of my head.

An important additional question which leads to some of your confusion is who holds the privilege. The attorney-client privilege gives the attorney the power to remain silent, sure, but it’s also a restriction on the attorney. The client holds the privilege, and the attorney may not disclose privileged information if the client doesn’t let him – even if the lawyer wants to. Same thing with psychotherapists, clergy and, in the jurisdictions that recognize a doctor-patient privilege, doctors. Therefore, if you’ve described the situation correctly, and if the law in that jurisdiction is typical, then the police should not have been able to use the priest’s information from the confessional. They could use the information about the lawyer’s client’s location, because that isn’t privileged information – it’s not a communication made to seek legal advice, it’s just some secret the lawyer knows about her client. She has an ethical obligation to keep that secret, and maybe someday her client could sue her for its disclosure (but there are many exceptions), but it’s not privileged.

The spousal privilege(s) is/are weird. For one thing, they existed at common law very differently than they do know. Also, they are quite variable over jurisdictions. There is a way in which commentators largely agree they should be read, but they don’t always act like this in practice.

The first spousal privilege is the spousal testimonial privilege. Courts can’t make people testify against their spouses. If they want to testify against their spouses, they can (but see below), but it’s up to them. This is like the 5th Amendment privilege against self-incrimination, which allows you to refuse to testify in a criminal case. it’s unlike the situation with everybody else, which requires that if a court tells you to testify, you must tell the truth, the whole truth, and nothing but the truth, even if you’d rather not.

There is also the spousal communications privilege. This is very like the Attorney-Client privilege. If a person tells his spouse something in confidence, the spouse is not permitted to disclose it anymore than a lawyer would be. And neither can a court compel the listenting spouse to testify. This privilege outlasts the marriage, so if you get divorced, tings you told your spouse in confidence while s/he was your spouse are protected, and s/he may not disclose them without your permission.

That’s what was going on in the example in the OP. The woman could have refused to testify about her husband, but it was up to her. She chose to testify, and that’s fine. BUT, she may not testify to confidential communications between them, because he (presumably) hasn’t given her permission. She’s allowed to testify about things he did but not things he said.

–Cliffy