Privileges and other policy exclusions - Other privileges

Learning Outcomes

This article explains the non-attorney evidentiary privileges tested on the MBE, including:

• Differentiating spousal immunity from the confidential marital communications privilege as to holder, scope, timing, and types of proceedings, and selecting the correct privilege in common MBE hypotheticals
• Applying clergy-penitent and psychotherapist/social worker privileges, with attention to who qualifies as clergy or therapist, what counts as a confidential spiritual or treatment communication, and who holds each privilege
• Evaluating when state-created professional privileges such as physician-patient or journalist-source apply in federal court, especially in diversity cases, and recognizing when no privilege exists under federal common law
• Determining who may assert, waive, or invoke each privilege, how waiver occurs through disclosure, failure to object, or subject-matter waiver, and how exam fact patterns signal waiver issues
• Identifying and applying major exceptions, including crime-fraud and joint-crime exceptions, patient- or client-litigant exceptions, and spousal-crime or child-abuse exceptions
• Analyzing how assertion of privilege renders a witness “unavailable,” how this status interacts with hearsay exceptions like former testimony and statements against interest, and how privilege issues are likely to appear in multi-issue MBE questions
• Spotting Fifth Amendment and governmental privileges at a basic level and distinguishing them from relationship-based privileges in mixed constitutional/evidence questions

MBE Syllabus

For the MBE, you are required to understand the rules and policy behind the exclusion of certain evidence on grounds of privilege beyond attorney-client privilege, with a focus on the following syllabus points:

• Federal common law of privilege under Rule 501 and the role of state privilege law in diversity cases
• Spousal privileges: spousal immunity and confidential marital communications
• Clergy-penitent and psychotherapist/social worker privileges
• Other professional privileges: physician-patient, journalist-source, and similar state-law privileges
• Constitutional and governmental privileges (Fifth Amendment, official information) at a basic level
• Waiver of privilege, crime-fraud and joint-crime exceptions, and the effect of privilege on witness “unavailability”

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which privilege allows a spouse to refuse to testify against their spouse in a criminal case?
   1. Confidential marital communications privilege
   2. Spousal immunity
   3. Attorney-client privilege
   4. Physician-patient privilege
2. Which of the following is NOT a recognized privilege under federal common law?
   1. Clergy-penitent privilege
   2. Physician-patient privilege
   3. Psychotherapist-patient privilege
   4. Spousal immunity
3. In which situation does the confidential marital communications privilege NOT apply?
   1. A spouse is charged with a crime against the other spouse.
   2. The communication was made in confidence during marriage.
   3. The spouses are still married at trial.
   4. The communication was made in reliance on marital intimacy.
4. Who most commonly holds the clergy-penitent privilege under modern rules?
   1. Only the clergy member
   2. Only the penitent
   3. Both the clergy member and the penitent jointly in all jurisdictions
   4. The court

Introduction

Certain communications are excluded from evidence because public policy favors confidentiality in particular relationships. Even though excluding relevant evidence may hinder fact-finding, courts accept this cost to encourage candor in relationships society wants to protect.

Beyond the attorney-client privilege, the MBE tests a set of other privileges that operate in a similar way:

• Spousal privileges (spousal immunity and confidential marital communications)
• Clergy-penitent privilege
• Psychotherapist and social worker privileges
• Other professional privileges, such as physician-patient or journalist-source, usually as matters of state law

Key Term: Privilege
A rule allowing a person to refuse to disclose, and to prevent others from disclosing, certain confidential communications in legal proceedings, even when those communications are relevant and otherwise admissible.

General Principles of Privilege

Federal Rule of Evidence 501 leaves privileges to federal common law “in light of reason and experience.” On the MBE:

• In federal question and federal criminal cases, federal common-law privileges apply.
• In diversity cases, state privilege law applies to claims and defenses governed by state substantive law.

Some global points apply to all of the privileges discussed here:

• Privileges are personal. Only the privilege holder (or someone authorized, such as a guardian or personal representative) may assert or waive the privilege.
• Privileges generally require a confidential communication made in the context of the protected relationship.
• When a witness properly invokes a privilege, that witness is treated as “unavailable” for hearsay purposes (opening the door to certain hearsay exceptions, such as former testimony or statements against interest).
• Privileges can be waived by voluntary disclosure or failure to assert the privilege when an opportunity arises.

With that framework, we turn to the main non-attorney privileges tested on the MBE.

Spousal Privileges

There are two distinct spousal privileges:

1. Spousal immunity (adverse testimonial privilege)
2. Confidential marital communications privilege

Each serves a different purpose and operates differently in time, scope, and holder. Confusing them is a common MBE trap.

Key Term: Spousal Immunity
The privilege in a criminal case that allows a witness-spouse to refuse to testify adversely against their current spouse. It covers testimony about events both before and during the marriage and is held solely by the witness-spouse.

Key Term: Confidential Marital Communications Privilege
The privilege protecting confidential communications made between spouses during a valid marriage and in reliance on marital intimacy. Either spouse may assert the privilege, and it survives divorce, but it only covers communications made during the marriage.

Spousal Immunity (Adverse Testimonial Privilege)

Spousal immunity is sometimes called the adverse testimony privilege. Key features:

• Criminal only
  • Applies only in criminal proceedings where one spouse is called to testify against the other.
• Timing
  • The spouses must be married at the time of trial for the privilege to apply.
  • It covers testimony about matters that occurred before or during the marriage.
• Holder
  • The privilege belongs only to the witness-spouse, not to the defendant-spouse.
  • The witness-spouse may choose to testify voluntarily; the defendant cannot prevent it by invoking this privilege.
• Effect
  • Allows the witness-spouse to refuse to take the stand or to refuse to give adverse testimony against the other spouse.

Common exceptions where neither spousal privilege applies:

• One spouse is charged with a crime or tort against the other spouse.
• One spouse is charged with a crime against a child of either spouse.
• Litigation is between the spouses (e.g., divorce or custody).

Confidential Marital Communications Privilege

The confidential marital communications privilege is narrower in subject matter, but broader in case type and duration:

• Civil and criminal
  • Applies in both civil and criminal cases.
• Communications only
  • Protects confidential communications (words or acts intended as communication) made during the marriage.
  • Does not protect mere observations by one spouse of the other’s conduct.
• Timing and duration
  • The communication must have been made while the spouses were validly married.
  • The privilege survives divorce; a spouse cannot be compelled to disclose a qualifying communication even after the marriage ends.
• Holder
  • Held by both spouses. Either spouse can refuse to disclose and can prevent the other from disclosing the confidential communication.

Communications are “confidential” only if made in reliance on marital intimacy and not intended to be disclosed to third parties.

Spousal Privileges: Scope and Exceptions

• Spousal immunity

  • Applies only in criminal cases and only while the marriage exists at trial.
  • Covers any adverse testimony about events before or during the marriage.
  • Witness-spouse alone controls assertion or waiver.
  • Does not apply where:
    • The marriage has ended before trial; or
    • The spouse is charged with a crime against the other spouse or either spouse’s child; or
    • The spouses are adverse parties in the proceeding.

• Confidential marital communications privilege

  • Applies in civil and criminal cases.
  • Covers confidential communications made during marriage in reliance on the marital relationship.
  • Protects communications even after divorce, but only those made while married.
  • Does not protect:
    • Communications in the presence of unnecessary third parties;
    • Communications not intended to be confidential;
    • Pure observations (e.g., what clothing the spouse wore);
    • Communications made to plan or further a future crime or fraud (joint-crime exception);
    • Communications in cases involving crimes or torts between the spouses or against a child of either spouse.

Exam Tip:
Ask: “Is the question about testifying at all against a spouse in a criminal case?” Think spousal immunity.
Ask: “Is the question about past confidential conversations between spouses in any type of case?” Think confidential marital communications.

Worked Example 1.1

A wife is called to testify against her husband in his criminal trial for robbery. The couple is still married at the time of trial. The prosecution asks her about a conversation she had with her husband during their marriage, in which he confessed to the crime. Can the wife refuse to testify about the conversation?

Answer:
Yes. First, under spousal immunity, because this is a criminal case and they are married at trial, the witness-spouse may refuse to testify adversely against her husband altogether. Second, even if she chose to testify, she (and the husband) can invoke the confidential marital communications privilege to block disclosure of his confidential confession, which was a private communication made during marriage in reliance on marital intimacy. The privilege would continue to protect that communication even if they later divorced.

Worked Example 1.2

A defendant is charged in federal court with bank robbery. The prosecutor calls the defendant’s wife to testify about the clothes he was wearing when he left the house on the morning of the robbery. They are still married. Both object to her testifying.

Answer:
The wife may invoke spousal immunity and refuse to testify because this is a criminal case and they are currently married. However, if she chooses to testify, the confidential marital communications privilege does not apply to her mere observation of his clothing. What she saw is not a confidential communication; it is simply observation. On the MBE, the best answer would focus on spousal immunity, not the communications privilege.

Clergy-Penitent Privilege

This privilege protects confidential communications made to clergy members for spiritual guidance, confession, or similar religious purposes.

Key Term: Clergy-Penitent Privilege
The privilege allowing a person to refuse to disclose, and to prevent others from disclosing, confidential communications made to a member of the clergy in that member’s professional capacity as a spiritual adviser.

Clergy-Penitent Privilege: Scope and Exceptions

Key elements:

• Who qualifies as “clergy”
  • Ordained ministers, priests, rabbis, imams, or similar religious leaders.
  • Often extends to persons the penitent reasonably believes are authorized to receive spiritual confessions or counseling.
• Nature of the communication
  • The communication must be:
    • Made to the clergy acting in a spiritual or religious capacity; and
    • For the purpose of seeking spiritual advice, forgiveness, or comfort.
  • It must be intended to be confidential; communications in open public settings or with non-essential third parties present usually are not privileged.
• Holder
  • In most jurisdictions, the privilege is held by the penitent.
  • Some jurisdictions also allow the clergy member to assert the privilege on the penitent’s behalf, but for MBE purposes you should assume the penitent controls it.

The privilege does not apply when:

• The communication was not intended to be confidential;
• The clergy member was acting in a purely secular role (e.g., as a social worker or mediator, not a spiritual adviser);
• A statute creates a specific exception (for example, some mandatory-reporting statutes in child-abuse contexts may limit confidentiality).

Worked Example 1.3

A man meets with his priest in the church office with the door closed to confess that he committed tax fraud and to seek spiritual guidance. Later, the government subpoenas the priest to testify about the confession in a criminal tax trial. The man objects.

Answer:
The communication was made to clergy acting in a spiritual capacity, in a private setting, and for the purpose of seeking religious counsel. It was intended to be confidential. The man, as the penitent, may assert the clergy-penitent privilege to prevent the priest’s testimony about the confession.

Psychotherapist and Social Worker Privilege

Federal courts recognize a privilege for confidential communications with mental health professionals.

Key Term: Psychotherapist-Patient Privilege
The privilege protecting confidential communications between a patient and a licensed psychiatrist, psychologist, or licensed social worker made for the purpose of diagnosis or treatment of a mental or emotional condition.

Psychotherapist-Patient Privilege: Scope and Exceptions

• Who is covered
  • Licensed psychiatrists, psychologists, and licensed clinical social workers providing mental health treatment.
• What is covered
  • Confidential communications made for diagnosis or treatment of mental or emotional conditions, including substance abuse.
  • Includes communications made to aides or staff acting under the direction of the therapist.
• Holder
  • The privilege is held by the patient, who may refuse to disclose and may prevent the therapist from disclosing privileged communications.

Common exceptions (jurisdiction-specific details vary, but these patterns are widely accepted and tested):

• Patient-litigant exception
  • When the patient puts their mental condition at issue (e.g., by claiming severe emotional distress, or asserting a mental condition as a defense), fairness may require disclosure. The privilege does not shield communications necessary to resolve that issue.
• Court-ordered examinations
  • Communications made in the course of a court-ordered mental examination may be disclosed for the limited purpose for which the examination was ordered.
• Commitment or competency proceedings
  • Communications relevant to proceedings to hospitalize the patient or to determine competency may not be privileged.
• Crime/fraud and serious harm
  • The privilege does not protect communications made to plan or commit a crime or fraud.
  • Many jurisdictions also allow disclosure where needed to prevent serious harm to the patient or others (e.g., a specific threat of violence), though the precise scope is governed by state law.

Worked Example 1.4

A patient sues her therapist for malpractice and claims severe emotional distress. The therapist seeks to introduce records of their sessions to defend against the claim. The patient objects based on privilege.

Answer:
The psychotherapist-patient privilege normally protects confidential treatment communications. However, the patient has put her mental condition and the quality of the treatment directly at issue by bringing a malpractice claim and seeking damages for emotional distress. Under the patient-litigant exception, the privilege does not apply to communications reasonably necessary for the therapist’s defense, so the therapist may introduce the records over the patient’s objection, subject to ordinary relevance and prejudice limits.

Other Professional Privileges

Some states recognize additional professional privileges. Federal common law is more limited.

Key Term: Physician-Patient Privilege
A privilege recognized in many states (but not under federal common law) that protects confidential communications between a patient and physician made for medical diagnosis or treatment.

Key Term: Journalist-Source Privilege
A privilege recognized in some states, but not under federal common law, that protects journalists from being compelled to disclose the identity of confidential sources or unpublished information obtained in newsgathering.

Physician-Patient and Similar Privileges

Under federal law:

• There is no general physician-patient privilege in criminal or federal question cases.
• However, in diversity cases, federal courts apply the privilege law of the state whose substantive law governs the claim, which often includes a physician-patient privilege.

Typical elements of physician-patient privilege in states that recognize it:

• The communication is between a patient and a licensed physician (or similar medical professional where statutes so provide);
• Made for the purpose of diagnosis or treatment;
• Intended to be confidential (no unnecessary third parties present); and
• Relates to information necessary for treatment.

Common exceptions (state formulations vary, but the MBE focuses on these patterns):

• The communication was for reasons other than treatment (e.g., for litigation only, not genuine medical care).
• The patient’s physical condition is placed in issue in litigation (e.g., personal-injury suit claiming physical injuries).
• The communication was made in furtherance of a crime or fraud.
• There is a dispute between doctor and patient (e.g., malpractice or fee dispute).
• The patient has consented to disclosure or otherwise waived the privilege.

Other state-created professional privileges (e.g., accountant-client, journalist-source) follow similar structures: a confidential communication to a recognized professional for professional advice or services, with scope and exceptions defined by statute or case law in that state.

Exam Tip (Diversity Cases):
If the case is in federal court on diversity jurisdiction, the state’s privilege rules govern physician-patient and other state-created privileges. In pure federal question or federal criminal cases, assume no physician-patient privilege unless the facts tell you otherwise.

Constitutional and Governmental Privileges (Brief Overview)

Although this article centers on relationship-based privileges, two additional privileges appear at the edges of MBE questions.

Key Term: Privilege Against Self-Incrimination
The Fifth Amendment privilege that prevents a person from being compelled to give testimonial evidence that could reasonably be used against them in a criminal case or lead to such evidence.

• Applies only to natural persons, not corporations.
• Protects testimonial evidence (statements, not physical evidence like blood samples).
• Can be invoked in any proceeding (civil, criminal, administrative) if answers might be incriminating.
• If the government provides sufficient immunity, the privilege no longer applies.

Key Term: Governmental Privilege
A group of privileges allowing the government to withhold certain information, such as official state secrets or the identity of informers, when disclosure would harm governmental interests.

Governmental privileges are rarely tested in depth on the MBE. Recognize them as another example of the policy choice to protect certain relationships or governmental functions at the expense of some evidence.

Waiver and Exceptions to Privilege

Privileges are not absolute. Even when all elements are satisfied, protection can be lost by waiver or overridden by specific exceptions.

Key Term: Waiver of Privilege
The voluntary or intentional relinquishment of a privilege, typically by disclosing or consenting to the disclosure of a significant part of the privileged communication, or by failing to assert the privilege when required.

Key Term: Crime-Fraud Exception
A general limitation on privilege under which communications are not protected if they were made to plan, commit, or cover up a future crime or fraud.

How Waiver Occurs

Common ways privileges are waived:

• Voluntary disclosure to a third party
  • If the holder voluntarily reveals the content of a privileged communication to someone outside the privileged relationship (who is not necessary to facilitate the communication), confidentiality is destroyed and privilege is waived as to that communication.
• Consent to disclosure
  • Explicitly authorizing the professional (attorney, therapist, priest, doctor) or spouse to testify about privileged communications.
• Failure to assert
  • If a question calling for privileged information is asked and the holder (or their representative) fails to object, many courts treat the privilege as waived for that testimony.
• Subject-matter waiver
  • In some contexts, voluntarily disclosing part of a privileged subject area may waive privilege as to other communications on the same subject, when fairness so requires.

Notably, unknown eavesdropping or unauthorized interception does not usually count as waiver, because there was no voluntary disclosure by the privilege holder. The key exam question is whether the communication was made in the presence of an unnecessary third party or voluntarily relayed to one.

Built-in Exceptions

Across privileges, similar exceptions arise:

• Crime-Fraud / Joint Crime
  • Communications made to plan or further future criminal or fraudulent conduct are not protected.
• Crimes or torts between the parties or against children
  • Spousal privileges do not apply when one spouse is charged with a crime against the other spouse or either spouse’s child, or in suits between spouses.
• Patient- or client-litigant exceptions
  • Psychotherapist and physician-patient privileges (where recognized) commonly yield when the patient puts their mental or physical condition at issue.

Worked Example 1.5

In a federal criminal trial, a defendant calls his licensed social worker to testify about their counseling sessions to show he lacked the mental state required for fraud. On cross-examination, the prosecution asks the social worker to reveal the defendant’s detailed admissions about other fraudulent schemes discussed in therapy. The defendant objects.

Answer:
Communications with a licensed social worker for mental health treatment are covered by the psychotherapist-patient privilege. By calling the therapist to testify about his mental condition, the defendant has put that condition at issue and waived the privilege to the extent necessary to explore that issue. The court is likely to allow questioning about communications reasonably related to his mental state and the charged fraud, but not unrelated past frauds that go only to character or propensity. The scope of waiver is limited by relevance and fairness.

Exam Warning

On the MBE, be careful to distinguish between spousal immunity (which applies only during marriage and only in criminal cases, and is controlled by the witness-spouse) and the confidential marital communications privilege (which applies to confidential communications during marriage, in civil or criminal cases, is held by both spouses, and survives divorce). Many wrong answer choices deliberately swap these features.

Revision Tip

Remember: Under federal common law, there is no general physician-patient privilege, but there is a psychotherapist/social worker-patient privilege and a clergy-penitent privilege. In diversity cases, state law may provide additional privileges such as physician-patient or journalist-source privileges, which the federal court must apply to state-law claims.

Key Point Checklist

This article has covered the following key knowledge points:

• Federal privilege law comes from common law (Rule 501); in diversity cases, state privilege rules apply to state-law issues.
• There are two spousal privileges:
  • Spousal immunity lets the witness-spouse refuse to testify adversely in a criminal case while the marriage exists.
  • Confidential marital communications privilege protects confidential communications made during marriage in both civil and criminal cases and survives divorce.
• Spousal privileges do not apply in actions between spouses or in prosecutions for crimes against a spouse or a child of either spouse, and do not protect communications made to further joint criminal activity.
• The clergy-penitent privilege protects confidential spiritual communications made to clergy acting in a spiritual capacity; it is usually held by the penitent.
• The psychotherapist-patient privilege (including licensed social workers) is recognized in federal courts and protects confidential treatment communications, subject to exceptions such as court-ordered exams and patient-litigant situations.
• There is no general physician-patient privilege under federal common law; such privileges, along with journalist-source and similar professional privileges, are matters of state law applied in diversity cases.
• The Fifth Amendment privilege against self-incrimination protects individuals from being compelled to give incriminating testimonial evidence and can be invoked in any proceeding.
• Governmental privileges permit the government to withhold certain information (e.g., state secrets, informant identities) when disclosure would seriously harm governmental interests.
• Privileges can be waived by voluntary disclosure, consent, or failure to object; subject-matter waiver may broaden the loss of protection.
• Privileges do not protect communications made to plan or further a future crime or fraud (crime-fraud exception).
• Asserting a privilege often renders the witness unavailable for hearsay purposes, potentially triggering hearsay exceptions.

Key Terms and Concepts

• Privilege
• Spousal Immunity
• Confidential Marital Communications Privilege
• Clergy-Penitent Privilege
• Psychotherapist-Patient Privilege
• Physician-Patient Privilege
• Journalist-Source Privilege
• Privilege Against Self-Incrimination
• Governmental Privilege
• Waiver of Privilege
• Crime-Fraud Exception