Privileges and other policy exclusions - Other privileges

Learning Outcomes

After reading this article, you will be able to identify and apply the main non-attorney privileges tested on the MBE, including spousal, clergy, psychotherapist, and other professional privileges. You will understand the scope, holders, and exceptions for each privilege, and recognize how these rules affect the admissibility of evidence in MBE-style 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. This article covers:

• The main non-attorney privileges: spousal, clergy, psychotherapist/social worker, and other professional privileges.
• Who holds each privilege and when it applies.
• The scope and exceptions to these privileges.
• The effect of privilege on the admissibility of evidence.
• How these privileges are tested in MBE questions.

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 the Federal Rules of Evidence?
   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 holds the clergy-penitent privilege?
   1. Only the clergy member
   2. Only the penitent
   3. Both the clergy member and the penitent
   4. The court

Introduction

Certain communications are excluded from evidence in court because public policy favors confidentiality in specific relationships. These privileges, in addition to the attorney-client privilege, include spousal, clergy, psychotherapist, and other professional privileges. Understanding when these privileges apply, who holds them, and their exceptions is essential for MBE success.

Spousal Privileges

There are two main types of spousal privileges: spousal immunity and the confidential marital communications privilege. Each serves a different purpose and applies in different contexts.

Key Term: Spousal Immunity The privilege allowing a spouse to refuse to testify against their spouse in a criminal case during the marriage. Only the witness-spouse may assert or waive this privilege.

Key Term: Confidential Marital Communications Privilege The privilege protecting confidential communications made between spouses during marriage. Either spouse may assert this privilege, and it survives divorce, but only covers communications made during the marriage.

Spousal Privileges: Scope and Exceptions

• Spousal immunity applies only in criminal cases and only while the marriage exists. It does not apply if the marriage has ended or if the spouse is charged with a crime against the other spouse or their children.
• Confidential marital communications privilege applies in both civil and criminal cases, but only to communications made in confidence during marriage. It does not protect communications made in the presence of third parties, or communications about future crimes or fraud.

Clergy-Penitent Privilege

This privilege protects confidential communications made to a member of the clergy for spiritual advice or confession.

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 clergy member in their professional capacity.

Clergy-Penitent Privilege: Scope and Exceptions

• Applies to any confidential communication made for spiritual counseling.
• Held by the penitent in most jurisdictions, but sometimes by both penitent and clergy.
• Does not apply if the communication was not intended to be confidential or was made for a non-spiritual purpose.

Psychotherapist and Social Worker Privilege

Federal courts recognize a privilege for confidential communications between a patient and a licensed psychotherapist, psychologist, or social worker for the purpose of diagnosis or treatment of a mental or emotional condition.

Key Term: Psychotherapist-Patient Privilege The privilege protecting confidential communications between a patient and a licensed psychotherapist or social worker for mental health treatment.

Psychotherapist-Patient Privilege: Scope and Exceptions

• Applies to confidential communications for diagnosis or treatment.
• Held by the patient.
• Does not apply if the patient puts their mental condition at issue, or if the communication was made for the purpose of committing a crime or fraud.

Other Professional Privileges

Some states recognize additional privileges, such as physician-patient, accountant-client, or journalist-source privileges. However, under the Federal Rules, only the psychotherapist-patient privilege is recognized among these.

Key Term: Physician-Patient Privilege A privilege recognized in many states, but not under the Federal Rules, protecting confidential communications made for medical diagnosis or treatment.

Key Term: Journalist-Source Privilege A privilege recognized in some states, but not under the Federal Rules, protecting a journalist from being compelled to disclose confidential sources.

Other Professional Privileges: Scope and Exceptions

• These privileges are governed by state law in diversity cases.
• They generally do not apply if the communication was not for the purpose of professional advice, or if the patient or client puts the condition or advice at issue.

Waiver and Exceptions to Privilege

Privileges can be waived if the holder voluntarily discloses the communication to a third party, or fails to assert the privilege when the opportunity arises. Privileges do not apply if the communication was made to further a crime or fraud, or if the privilege is waived by all holders.

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, the wife may refuse to testify under spousal immunity, since the privilege applies during marriage in criminal cases. She may also assert the confidential marital communications privilege to prevent disclosure of the conversation, as it was made in confidence during marriage.

Worked Example 1.2

A patient sues her therapist for malpractice and claims emotional distress. The therapist seeks to introduce records of their sessions. Can the therapist do so over the patient's objection?

Answer: Yes, the psychotherapist-patient privilege does not apply when the patient puts her mental condition at issue in the litigation.

Exam Warning

On the MBE, be careful to distinguish between spousal immunity (which applies only during marriage and only in criminal cases) and the confidential marital communications privilege (which applies to confidential communications during marriage and survives divorce).

Revision Tip

Remember: Under the Federal Rules, there is no general physician-patient privilege, but there is a psychotherapist-patient privilege. State law may provide additional privileges in diversity cases.

Key Point Checklist

This article has covered the following key knowledge points:

• Spousal immunity allows a spouse to refuse to testify against their spouse in a criminal case during marriage.
• Confidential marital communications privilege protects confidential communications made during marriage, in both civil and criminal cases, and survives divorce.
• Clergy-penitent privilege protects confidential spiritual communications; usually held by the penitent.
• Psychotherapist-patient privilege is recognized under the Federal Rules; physician-patient privilege is not.
• Other professional privileges (e.g., journalist-source) may be recognized by state law, not federal law.
• Privileges can be waived by disclosure or consent, and do not apply to communications made to further a crime or fraud.

Key Terms and Concepts

• Spousal Immunity
• Confidential Marital Communications Privilege
• Clergy-Penitent Privilege
• Psychotherapist-Patient Privilege
• Physician-Patient Privilege
• Journalist-Source Privilege