Privileges in American law are rules of evidence that exclude relevant, probative evidence, unrelated to the reliability of the evidence. Some examples include.
- Fifth Amendment privilege against self-incrimination
- tax payer privilege
- spousal witness privilege
- trade secrets privilege
- informants privilege
- attorney work-product doctrine
Some privileges are stronger than others. For example, some privileges only prevent information from being compelled in court or government proceedings, but do not require confidentiality outside court. For example, a spouse may discuss their spousal communications with friends and family. Yet, even if those discussion have occurred and the spousal communications have not been kept confidential, the spousal privilege nonetheless prevents one spouse from being compelled to testify against the other as a witness.
Communication v Non-Communication Privileges
Other privileges are based on communications that occur within the context of a particular relationship. Generally, these privileges require that the communication be kept confidential. Such “communication privileges” include privileges occur within the context of certain special relationships such as between:
- clergy & their penitants
- patients & their physicians or psychotherapists
- clients & their attorneys.
The communications may also apply to agents of one of the parties in the relationship.
For example, in private investigators, paralegals, and law clerks who work for an attorney on a case are able to participate in discussions with clients without loss of privilege, such as Harvard student Elle Woods in Legally Blonde or PI Frank Levin in The Lincoln Lawyer, because they are agents of the attorney assisting on a case. Elle Woods’s jailhouse communications with the defendant, Brooke Taylor Windham, are attorney-client privileged because she was working for the defendant’s attorney on the case.
Attorney-Client privilege protects the communications between attorneys and their clients. It also protects communications among attorneys and some others who are working with attorneys on a matter. It developed under common law, but has been codified in many states. Roughly, absent certain exceptions and absent waiver, the elements are:
- an attorney,
- a client, &
- a confidential communication between them
- that is germane to the rendering of professional legal services.
The privilege does not apply to communications made with intent to plan a crime or fraud or if the attorney reasonable believes disclosure is necessary to prevent future death or substantial bodily injury. It may also be waived by disclosure of the communication to certain others outside the attorney-client sphere or in the event of litigation between the client and attorney over fees or allege malpractice.
In US v Zolin, 491 US 554 (1989), the U.S. Supreme Court held that a person claiming the privilege has the burden to prove the preliminary facts at common law and that no exceptions apply. It is not yet clear where the privilege claimant must also prove absence of waiver.
Attorney Work-Product Doctrine
The Attorney Work-Product Doctrine, which is akin to a privilege, was established by the U.S. Supreme Court in Hickman v Taylor, 329 US 495 (1947), in which the Court held statements of a witness obtained by an attorney working on a criminal case were protected from disclosure.
In US v Noble (1975), the Supreme Court held that the doctrine applies in both criminal and civil matters.
Some types of work product such as an attorneys’ thoughts, strategies, and impressions receives very strong protection and can almost never be the subject of discovery. Other work product of an attorney, such as notes contains facts like a witness’s address, receive less protection and can be the subject of discovery if there is no other way to obtain the information.
Whereas attorney-client privilege belongs to the client, the work-product privilege generally belongs to the attorney.