Wednesday, May 2, 2012

It's a Privilege

There is a fascinating trial underway in my office right now.  Unfortunately for the reader, speaking about an on-going case would violate one of the only rules my superiors gave me when I approached them about starting this blog.  Since they haven't asked me to stop posting or take it down, I'll live up to my end of the bargain.  Hopefully, once it's over I can discuss it and get some interviews with the trial attorneys.

One of the many issues that arose during the investigation was spousal privilege.  Basically, if you tell your spouse about the crime, can they be forced to testify about it? 

Let's discuss some of the privileges that exist in the law.  The fact that a witness tells someone something in exchange for secrecy does not make the statement privileged.  There must be a legal reason for the communication to be protected.


Everyone knows this one.  An attorney or employees cannot disclose client communications.  This means the attorney, paralegals, investigators, or administrative assistants are forbidden from disclosure.  The privilege exists with the client alone.  Meaning if anyone is to disclose it, it must be the client.

The reason behind the privilege is to encourage full disclosure between the attorney and the client.  If the client believes that everything they say is confidential, they will be more open.  Therefore, the attorney can provide better legal advice. 


It's the law, so we know there are exceptions or ways to pierce the privilege.  Here are a few:

1) An actual attorney and client relationship must exist.
2) If the communication is made in the presence of a third person not included in the privilege, the communication is not privileged.  If the client and attorney speak in the presence of the client's friend, the communication is fair game.
3) A client consulting an attorney for help committing or covering up a crime is not privileged.  If the attorney provides help, he is a co-conspirator.
4) The privilege ceases if the client sues the attorney for malpractice.


A doctor, nurse, dentist, podiatrist, or chiropractor cannot disclose any information obtained from a patient, unless the patient waives the privilege.  Again, we want to encourage open and honest communication with doctors. 


1) Privilege applies only to information obtained while attending the patient.  A doctor may testify that he treated a certain patient, how often, or that surgery was performed. 
2) Only information necessary for treatment is privileged.  If a patient tells the doctor that he blew a red light, then the doctor may be compelled to testify to that.
3) The privilege is waived when a patient puts it in issue.  This usually occurs when a plaintiff sues a person for injuries caused following a car accident.


One spouse cannot be compelled to testify to communications received from the other spouse.  The reason for the privilege?  To protect marriages.  Both spouses must agree to waive the privilege.


1) An abused spouse may testify against the abuser. 
2) Ordinary conversations are not privileged.  Only matters discussed because the people are married are privileged.
3) Actions.  If a person observes their spouse commit a crime, the observations are not privileged.
4) Communications in the presence of third persons.


This is a gray area.  There is not a New York statue relating to this privilege.  In addition, only lower courts have adopted this privilege.  The New York Court of Appeals has not.  Even federal courts have refused to adopt this privilege. 
Some of the factors the court will use to analyze whether a communication between a parent and child is privileged are the age of the child, whether the communication was given in confidence, the relationship of the parent and child, and the injury to the relationship from disclosure.

There are more privileges, but these are the ones we see most often.  There are always legal arguments to be made to pierce the privileges.  It is not always the end of the case. 

In a few weeks, we will hopefully analyze the case that was the inspiration for this post.  The trial is pitting three top attorneys from my office against the three top criminal defense attorneys.   

1 comment:

  1. "Only matters discussed because the people are married are privileged."

    I'd love to see the case law on that! Fascinating.

    Great post!