The Rules on Evidence protect certain confidential relationships by making communications within them privileged, meaning the persons involved cannot be examined about them without consent, because the law values the relationship enough to shield it even at the cost of losing evidence. The classic privileges are five. First, the marital communications privilege: a husband or wife cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage, and this survives the marriage; this is distinct from the marital disqualification rule, which bars a spouse from testifying for or against the other during the marriage, subject to exceptions. Second, the attorney-client privilege: an attorney (and their secretary, stenographer, or clerk) cannot, without the client's consent, be examined as to any communication made by the client in the course of or with a view to professional employment, nor as to advice given; the privilege belongs to the client and is broad, because candid legal advice requires full disclosure. Third, the physician-patient privilege: a physician (and, by extension, persons authorized to practice medicine, surgery, or obstetrics) cannot in a civil case, without the patient's consent, be examined as to any advice or treatment given or any information acquired in attending the patient which was necessary to enable them to act in that capacity, and which would blacken the patient's reputation. Fourth, the priest-penitent privilege: a minister or priest cannot, without the person's consent, be examined as to any confession made to or advice given by them in their professional character in the course of discipline enjoined by their church. Fifth, the public officer privilege: a public officer cannot be examined during or after their tenure as to communications made to them in official confidence when the court finds that the public interest would suffer by the disclosure. Other privileges exist under special laws (such as bank secrecy and the confidentiality of certain records). So privileged communications protect confidential relationships from compelled disclosure, and the privilege generally belongs to the person the rule is designed to protect.
Why Privileges Exist
The law shields certain confidential relationships from compelled disclosure — valuing the relationship even at the cost of losing evidence.
The Classic Privileges
- Marital communications — confidences between spouses during the marriage (survives the marriage);
- Attorney-client — communications and advice in professional employment (belongs to the client);
- Physician-patient — in civil cases, information acquired in treatment that would blacken the patient's reputation;
- Priest-penitent — confessions and advice in a professional/religious character; and
- Public officer — official confidences where public interest would suffer.
Who Holds the Privilege
The privilege generally belongs to the person it protects (e.g., the client, the patient), and may be waived by their consent. Other privileges arise under special laws (e.g., bank secrecy).
Practical Takeaways
- Five classic privileges: marital, attorney-client, physician-patient, priest-penitent, public officer;
- The protected person holds the privilege and can waive it;
- Physician-patient applies in civil cases.
Frequently Asked Questions
What are privileged communications? Communications within certain protected confidential relationships that the law shields from compelled disclosure, so the persons involved cannot be examined about them without consent.
What are the classic privileges? Marital communications, attorney-client, physician-patient, priest-penitent, and the public officer privilege for official confidences where public interest would suffer from disclosure.
Who holds the attorney-client privilege? The client. The attorney and their staff cannot be examined about communications made in the course of or with a view to professional employment, or advice given, without the client's consent.
Does the physician-patient privilege apply in criminal cases? The rule as classically stated applies in civil cases, covering information acquired in attending the patient that was necessary to act in that capacity and which would blacken the patient's reputation.
This commentary is for general informational purposes only and does not constitute legal advice. For guidance specific to your situation, please consult a licensed attorney.
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