Privilege and Ownership

Let’s talk privilege.

Oh, not the hot-button concept that’s got everybody a-twitter of late; something a little more specific, a little more easily-defined. I’m talking law of evidence privilege.

(Yeah, I feel like blathering on about various legal precepts I learned in school. I just started a new job today, and while everything went fine enough, I feel like going on about minutia might be a fine way of winding down without drinking. Everything here is US law, as I don’t know a damn thing about any other system. It’s also completely from memory, so take this even LESS as legal advice than usual–it’s just someone blowing off steam.)

So! What is privilege?

In a situation where you would otherwise be compelled to speak (or else rot in jail for refusing a judge’s order), privilege allows (or even requires) you, with the full backing of the law, to refuse.

And there’s a lot of them, and I’ll admit that in my schooling we only went over about five. But hey, this is my blather-session, and not inspired by something I really feel strongly everyone needs to know about. So. Let’s talk about those five-or-so types of privilege, and how they differ from each other.

(Please note that, because I’m tired, I’m only talking about subpoena-ability here. A lot of the things that can’t be subpoenaed also can’t be revealed to anyone else, ever, basically. But I don’t feel like thinking that far into where that applies or not.)


Attorney-client privilege. You know this one. Anything you said to your attorney cannot be revealed to the court by your attorney. This right can be waived–by you, not your attorney. You own the privilege.

Doctor-patient privilege. When you go to a doctor for the purposes of diagnosis of an illness (basically), what gets discussed between you can’t be revealed to court by the doctor. You own this privilege, too. But there’s exceptions big enough to drive a hole through–for instance, if the family judge orders everyone to talk to a family therapist so she can get a better idea of if the situation’s healthy (or whatever), then duh, the therapist can tell the judge.

In addition to that, there’s another big, huge, giant exception to both of these: When you confess that you’re going to hurt someone (or yourself? Not sure), they’re required to go to the authorities and tell every word. Pretty sure that those communications, so revealed, aren’t exactly held to be privileged thereafter, because everyone who reads the local crime blotter knows it. So, y’know, don’t trust this.

Work product privilege was one of the ones that I liked most. It basically means that the other attorney can’t subpoena the research and other work that your attorney has done for the case. If your lawyer went through twelve expert witnesses before they found someone who would actually back up your story, then what those twelve said stays in your law firm. The other attorney is going to have to do his own damn work. (There are exceptions to this–if you’ve managed to get  your hands on something important that can’t be recovered another way, for instance. But it’s not common.)

Priest-petitioner privilege. Because, basically, they had to keep arresting priests for not saying what had been confessed to them… and the priests, feeling they answered to a higher authority, didn’t budge. (OK, I don’t know if that’s how it really happened, but I figure it’s gotta be something like that. Either way, priests can’t be compelled.)

Marital privilege. Your wife can’t be compelled to say what you guys talked about. But if you can’t trust doctor-patient privilege, you really can’t trust this one–your wife’s the one who decides whether or not she wants to keep her mouth shut.

And self-incrimination privilege. You can’t be forced to testify against yourself. But… there are some interesting snags to this one. For instance, if you do decide to testify on your own behalf, you open yourself to cross–you can’t just say your piece and then clam up. (I think the IRS scandal actually involved this? I think one of the participants said a little, then invoked, and there was debate on whether she’d spoken enough to count as testimony. Am I remembering right?) I’ve also looked as to whether you can be compelled to testify against yourself if immunity has been offered. My snag is that none of the sources I looked at seemed to think that anybody in the world would refuse to testify if immunity were being offered, so didn’t explore it much. And yeah, I didn’t think about that ’til that Blacklist episode.

So, yeah. That’s… kind of a little bit of privilege in a nutshell, even though it’s a sufficiently loose and veering coverage of thing that I think my old legal professor would be ashamed.

But! But! We keep talking about whether or not people you talked to can testify as to the content of that conversation. Isn’t that the definition of hearsay?

Yep… but the hearsay exception does not apply to statements the defendant himself made. How’s that for a kick in the nuts?

Here’s a magic frog.



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