Testimonial Privileges

American attorney, Howard S. Sussman examines privilege in light of recent trials involving attorney-client privilege.

In the aftermath of the Enron and similar scandals, a debate has emerged on the question whether a corporation’s lawyer should be forced to reveal information the corporation has conveyed to him or her in confidence. Historically, such information was normally protected by a testimonial privilege -- the attorney-client privilege -- but pressure has developed to limit that privilege in the indicated context or to apply pressure to the corporation to waive its protection.

A testimonial privilege is a right granted by law to a person not to testify, or in some instances to prevent another from testifying, either as to the contents of a statement made outside the presence of the tribunal by the person who has the privilege or as to information that person knows and does not want to reveal. (1) Testimonial privileges are different from other sorts of privileges (2), and from other exclusionary rules.

American law distinguishes between constitutional privileges, such as the privilege against self-incrimination (sometimes called the right to remain silent), and non-constitutional privileges such as those that protect communications between husband and wife, attorney and client, physician and patient, and minister and congregant (or as it is usually called priest and penitent).

Testimonial privileges conflict with the usual rule that a tribunal is entitled to everyone’s truthful and complete testimony inasmuch as their effect is to exclude from the trial information which is, or at least is assumed to be, relevant to the issues to be decided. Their existence is justified on the theory that the interests to be served by recognition of the privilege are more important than the interests served by complete factual revelation at trial.

At an earlier day, the basis of the privilege for communications between husband and wife depended on the idea that one spouse is not competent to testify against the other, perhaps derived from the biblical notion that spouses are of “one flesh”. This meant that one spouse could not, as a matter of law, testify against the other, and this preclusion of spousal testimony could not be waived by either spouse.

The more recent jurisprudence is bottomed on the idea that permitting one spouse to testify against the other tends to undermine their marriage, and that it is more important to serve the social goal of stable marriages than it is to have all relevant facts before the tribunal. One result of this change in theory is that, as with privilege generally, a waiver of this privilege is now permissible.

A similar social rationale underlies the attorney-client privilege, which (with some exceptions) prohibits an attorney from revealing material conveyed to him or her in confidence by a client or prospective client. The idea is that for an attorney properly to fulfill the function society expects it is essential that the client be able to reveal everything the client knows, confident it will not go further. Exceptions to this privilege include a client’s revelation of intent to commit a crime (as distinguished from admitting that a crime has already been committed). To what extent exceptions of this type may be broadened by the debate mentioned above is uncertain. Also uncertain is the extent to which pressure to waive the privilege -- such as a threat of prosecution unless the privilege be waived -- may become acceptable.

A similar social rationale also applies to the privilege covering communications between physician and patient, where the goal of effective medical treatment is deemed to override other social goals.

The priest-penitent privilege, anciently enforced by the church (sometimes, at least in theory, by a death penalty for priests who breached the privacy of the confessional), has not always had a warm reception on the civil side. These days, however, it is a commonly accepted privilege, again on the theory that the social values served by encouraging free expression from the penitent outweigh those associated with having full disclosure to the tribunal.

That kind of thinking has led to the proposal, and in some jurisdictions the adoption, of other privileges, of which those protecting communications between psychotherapist and patient, accountant and client, and journalist and source are among the most prominent. These privileges, too, are based on the idea that promoting open communication by assuring its confidentiality serves social goals more important than those associated with having all the facts before the tribunal.

Howard S. Sussman is a New York lawyer and former US prosecutor and law professor. In addition to continuing to practice law in New York, he gives courses on cross-examination technique to non-US lawyers. He can be reached at howard.sussman@ssetw.com and sstwsussman@msn.com.

(1) The Oxford English Dictionary (“OED”) defines a “privilege” as “[a] right, advantage, or immunity granted to or enjoyed by a person . . . beyond the common advantages of others; an exemption in a particular case from certain burdens or liabilities” (Compact Edition, 1979, p. 1391, at B.2.).

(2) See OED, op. cit., pp. 1391-92.