“ copyright © allyn & bacon 2008 criminal evidence chapter eleven: privileged communications...

“Copyright © Allyn & Bacon 2008 “Copyright © Allyn & Bacon 2008

Criminal EvidenceCriminal EvidenceCriminal EvidenceCriminal Evidence

Chapter Eleven: Chapter Eleven: Privileged Communications

This multimedia product and its contents are protected under copyright law. The following are prohibited by law:• any public performance or display, including transmission of any image over a network;• preparation of any derivative work, including the extraction, in whole or in part, of any images;• any rental, lease, or lending of the program.

Marjie BritzMarjie BritzMarjie BritzMarjie Britz


IntroductionIntroduction

Historically, certain privileged against Historically, certain privileged against testifying have developed.testifying have developed.

Typically involve:Typically involve: requisite relationshiprequisite relationship:: relationship is present relationship is present

and relationship was entered in a manner and relationship was entered in a manner not suggestive of intentional fraud or attempt not suggestive of intentional fraud or attempt to pervert the criminal justice system to pervert the criminal justice system

confidentialityconfidentiality: : communications were communications were intended to be confidential intended to be confidential


Attorney-ClientAttorney-Client

Oldest recognized privilegeOldest recognized privilege Requirements and Limitations of the Attorney-Requirements and Limitations of the Attorney-

Client Privilege:Client Privilege: client sought out services of individual reasonably client sought out services of individual reasonably

believed to be licensed to practice law; intention of believed to be licensed to practice law; intention of establishing an attorney-client relationshipestablishing an attorney-client relationship

the communication in question was undertaken in a the communication in question was undertaken in a manner designed to ensure confidentiality manner designed to ensure confidentiality



Attorney-client privilege does not Attorney-client privilege does not preclude the introduction of all other preclude the introduction of all other attorney-client communicationsattorney-client communications

e.g. intent to commit of future crimese.g. intent to commit of future crimes situations where the services were retained situations where the services were retained

to enable commission of crimeto enable commission of crime identity of client and feeidentity of client and fee



The Work-Product Doctrine & the Attorney-The Work-Product Doctrine & the Attorney-Client Privilege: counsel may formally request Client Privilege: counsel may formally request documents and other evidence from the documents and other evidence from the adverse party; may include any evidence adverse party; may include any evidence which is relevant to the matter at hand which is relevant to the matter at hand exceptexcept that which is considered privileged that which is considered privileged

Rationale for privilege can be found in both 5Rationale for privilege can be found in both 5 thth and 6and 6thth Amendments Amendments


Spousal PrivilegesSpousal Privileges

Marital communications privilegeMarital communications privilege:: protects protects those spousal communications made in those spousal communications made in confidenceconfidence

Spousal testimonial privilegeSpousal testimonial privilege: gives witnesses : gives witnesses the right to refuse to testify against their the right to refuse to testify against their spouses; spouses; oror for the accused to prevent for the accused to prevent testimony by that spouse; testimony by that spouse; or or automatically automatically render the witness incompetent render the witness incompetent


Parameters & LimitationsParameters & Limitations

does not to communications involving does not to communications involving criminal activities in which spouses are criminal activities in which spouses are conspirators conspirators

Does not apply in cases involving crimes Does not apply in cases involving crimes committed against those in the family committed against those in the family unitunit

The privilege is usually limited to criminal The privilege is usually limited to criminal cases cases


Physician-PatientPhysician-Patient

40 states have adopted a general 40 states have adopted a general physical-patient privilege statutephysical-patient privilege statute

No similar federal lawNo similar federal law Privilege rests solely with the patient Privilege rests solely with the patient



Professional relationship between the Professional relationship between the parties is necessaryparties is necessary

casual conversations not protectedcasual conversations not protected Legally ordered medical examinations Legally ordered medical examinations

not privilegednot privileged State have other limitations including State have other limitations including

such matters as gun shot wounds and such matters as gun shot wounds and spousal abusespousal abuse


Psychotherapist-Patient Privilege Psychotherapist-Patient Privilege

Based on the concept of psycho-analysis Based on the concept of psycho-analysis which requires complete disclosure for which requires complete disclosure for effective treatment effective treatment

The mere possibility of disclosure would The mere possibility of disclosure would all but guarantee the collapse of an all but guarantee the collapse of an effective treatment strategy effective treatment strategy



Does not cover the planning, Does not cover the planning, commission, or concealment of criminal commission, or concealment of criminal activityactivity

Does not cover allegations of child Does not cover allegations of child sexual abusesexual abuse

Does not cover when the patient poses a Does not cover when the patient poses a threat of serious harm to themselves or threat of serious harm to themselves or others others


Clergy/CommunicantClergy/Communicant

Protection originally based on sanctity of Protection originally based on sanctity of confessionconfession



Only those conversations which are Only those conversations which are designed to be confidential enjoy the designed to be confidential enjoy the protections afforded under the statutory protections afforded under the statutory privilegeprivilege

Need relationshipNeed relationship Privilege includes all levels of clergyPrivilege includes all levels of clergy Ownership of the clergy-communicant Ownership of the clergy-communicant

privilege belongs to both parties privilege belongs to both parties


Media/Source PrivilegeMedia/Source Privilege

31 states and the District of Columbia 31 states and the District of Columbia have recognized limited protections have recognized limited protections afforded to journalists known as “shield afforded to journalists known as “shield laws” laws”


Government PrivilegesGovernment Privileges

Protection from disclosure of information Protection from disclosure of information contained within the confines of those contained within the confines of those relations extends only when the relations extends only when the preservation of confidentiality outweighs preservation of confidentiality outweighs the necessity for disclosure in the the necessity for disclosure in the interest of justiceinterest of justice


Government PrivilegesGovernment Privileges

Police-Informant privilegePolice-Informant privilege Privileged Information Regarding Military, Privileged Information Regarding Military,

Diplomatic, or National Security SecretsDiplomatic, or National Security Secrets Presidential PrivilegePresidential Privilege


Miscellaneous PrivilegesMiscellaneous Privileges

Interpreters-deaf Interpreters-deaf Sexual assault counselor – victimSexual assault counselor – victim Parent-child privilegeParent-child privilege Accountant-client privilege Accountant-client privilege

“ copyright © allyn & bacon 2008 criminal evidence chapter eleven: privileged communications...

Documents