Privileges in General

In Chapter II we explored the fundamental rule of evidence that all relevant evidence is admissible and all irrelevant evidence is inadmissible. The premise on which this primary rule is based is that accurate fact-finding in an adversary system of justice is promoted when the factfinder has all the information that bears on the issues in dispute. As we have seen, there are many exceptions to the primary rule. But virtually all the exceptions we have examined to this point have been justified on the grounds that the excluded evidence is likely to undermine the fact-finding process because of the unreliability or prejudicial nature of the evidence or its capacity to mislead or confuse the factfinder. Concededly, some of the categorical rules of exclusion, such as Rules 407 to 412 (evidence of subsequent repairs, compromise offers, payment of medical expenses, pleas, liability insurance, and prior sexual history), are based at least in part on policy considerations not directly connected to the truth-promoting principle, but, as seen, the legitimacy of these rules is a matter of controversy, and there is strong pressure to eliminate some of them.

The evidentiary privileges are the most important set of rules that operate to exclude relevant, nonprejudicial, and nonconfusing evidence for reasons completely unrelated to the truth-promoting principle. Is there a unifying principle that justifies departure from the quest for truth in these instances? Or does the existing system of privileges simply reflect ad hoc policy judgments on specific issues or, more cynically, the relative power of various economic or social interests?

Our examination of this and other issues begins by considering some general philosophical questions raised by the nature and justification of privileges. These issues are explored more specifically in connection with the assertion of a reporter's privilege in the Farber case and juxtaposed with the privileges applicable to communications to clergymen, psychotherapists, and lawyers. The remainder of the chapter pursues issues raised in the introductory section while treating in greater detail the two most frequently encountered privileges--lawyer-client and husband-wife.

On the conceptual level, it is interesting to observe how commentators' and judges' views on specific privileges seem to be colored by the underlying philosophical approach they take to the subject. These approaches range from the utilitarian, instrumental, or pragmatic view to the humanistic.

The classic utilitarian approach is Wigmore's. Starting from the premise that "the public is entitled to every man's evidence" and that exemptions from this rule are exceptional and to be discountenanced, Wigmore posits four conditions that must be fulfilled to justify a privilege:

(1) The communications must originate in a confidence that they will not be disclosed.

(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

(3) The relation must be one which in the opinion of the community ought to be sedulously fostered.

(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

8 Wigmore, Evidence §§2191, 2192, 2285 (McNaughton rev. 1961). Note the dual focus in Wigmore's formula on the instrumental purpose of the communication and the cost/benefit effect on the litigation process.

In the Nixon tapes case, United States v. Nixon, 418 U.S. 683 (1974), the Supreme Court applied this utilitarian approach to the president's claim of a privilege for confidential presidential communications. In rejecting the President's claim of privilege in the specific case before it, the Court took pains to highlight the fundamental inconsistency between privileges and accuracy in the judicial process:

But this presumptive privilege [for Presidential communications] must be considered in light of our historic commitment to the rule of law. This is nowhere more profoundly manifest than in our view that "the twofold aim [of criminal justice] is that guilt shall not escape or innocence suffer." Berger v. United States, 295 U.S., at 88. We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense.

Only recently the Court restated the ancient proposition of law, albeit in the context of a grand jury inquiry rather than a trial, "That 'the public ... has a right to every man's evidence,' except for those persons protected by a constitutional, common-law, or statutory privilege, United States v. Bryan, 339 U.S. [323, 331 (1950)]; Blackmer v. United States, 284 U.S. 421, 438 (1932)...." Branzburg v. Hayes, 408 U.S. 665, 688 (1972). The privileges referred to by the Court are designed to protect weighty and legitimate competing interests. Thus, the Fifth Amendment to the Constitution provides that no man "shall be compelled in any criminal case to be a witness against himself." And, generally, an attorney or a priest may not be required to disclose what has been revealed in professional confidence.... [T]hese exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth....

Nowhere in the Constitution, as we have noted earlier, is there any explicit reference to a privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a President's powers, it is constitutionally based.

The right to the production of all evidence at a criminal trial similarly has constitutional dimensions. The Sixth Amendment explicitly confers upon every defendant in a criminal trial the right "to be confronted with the witnesses against him" and "to have compulsory process for obtaining witnesses in his favor." Moreover, the Fifth Amendment also guarantees that no person shall be deprived of liberty without due process of law. It is the manifest duty of the courts to vindicate those guarantees, and to accomplish that it is essential that all relevant and admissible evidence be produced.

In this case we must weigh the importance of the general privilege of confidentiality of Presidential communications in performance of the President's responsibilities against the inroads of such a privilege on the fair administration of criminal justice. The interest in preserving confidentiality is weighty indeed and entitled to great respect. However, we cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a prosecution.

On the other hand, the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. A President's acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. Without access to specific facts a criminal prosecution may be totally frustrated. The President's broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases.

We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.

418 U.S. at 708-713.

Some commentators have criticized Wigmore and the Supreme Court's approach as too narrowly based on an instrumental calculus that overvalues accuracy in the judicial process while undervaluing other important human values such as privacy, dignity, intimacy, anonymity, and individuality. Focusing on these humanistic values, Professor Alan Westin, Privacy and Freedom 31-39 (1967), has identified the following important functions furthered by privacy in communications in modern democratic societies:

personal autonomy: privacy preserves social processes that safeguard one's "sacred individuality" ... and permits "sheltered experimentation and testing of ideas";

emotional release: privacy affords "relaxation ... from the pressure of playing social roles, [creates an opportunity for people] to lay their masks aside for a rest [and obtain] respite from the emotional stimulation of daily life, [grants] protection ... to minor non-compliance with social norms, [and allows one] to give vent to ... anger at the system ... without fear of being held responsible for such comments";

self-evaluation: privacy is essential if one is to fulfill the individual's need "to integrate his experiences into a meaningful pattern and to exert his individuality on events" ... and "process the information that is constantly bombarding [him]"; privacy also furthers "the proper timing of the decision to move from private reflection or intimate conversations to a more general publication of acts and thoughts";

limited and protected communications: privacy is necessary for psychic self-preservation for men in the metropolis, "[providing] the opportunities ... for sharing confidences and intimacies with those he trusts--spouse; the family; personal friends; and close associates at work."

Professor Thomas Krattenmaker, building mostly on Westin's catalogue of functions served by privacy in communications, is severely critical of the modern trend toward an instrumentalist view of privileges. In an analysis of the federal privilege rules proposed by the Supreme Court, Krattenmaker states:

[I]n circumscribing personal testimonial privileges, the Rules would intrude severely and unwarrantably upon personal privacy and the individual's interest in freedom of expression....

It is imperative to ascertain precisely what is meant by the concept of privacy in twentieth century America, what individual and societal benefits flow from public protections accorded privacy, whether recognition of interpersonal testimonial privileges does, indeed, substantially contribute to these ends, and whether less drastic means might produce whatever benefits privileges yield. In short, the central question is whether the simple device of excluding evidence at trial can be viewed as an important, well-designed adjunct of the right of privacy.

Privacy, in the sense that term is employed here, is not merely secrecy but also involves the voluntary and secure control one possesses over communication of information about oneself; a person locked in a closet against his will may have secrecy but is unlikely to be enjoying privacy. Simple secrecy is in no sense a valuable right. What makes privacy both a distinct concept and a valuable right is the fact that it is voluntary and that it includes a secured ability to control by oneself how much information about oneself is disseminated and the scope and circumstances of its communication.

The rejection of a claim of privilege destroys the claimant's control over the breadth of the audience receiving personal information as well as his control over the timing and conditions of its release. Clearly then, limitations on testimonial privileges are invasions of privacy.

Not every deprivation of privacy, of course, is socially deplorable or constitutionally objectionable. For example, mandatory examination of restaurant workers for the presence of communicable diseases robs such persons of voluntary control over information concerning one aspect of themselves, but that probably would not lead thoughtful people to conclude that such examinations should be abolished. Most people would agree that such a limited intrusion is outweighed by other social needs.

The question whether to protect an interest in privacy, then, necessarily must involve weighing matters of degree. Therefore, whether society should tolerate either a lesser intrusion upon privacy or an intrusion for certain weighty countervailing reasons must depend, in large measure, upon the importance to individuals and American society of the right of personal privacy as well as the precise nature of that right. At bottom it appears the Rules implicitly adopt an incredible topsy-turvy ranking of the relative strengths of governmental, corporate and individual claims to the right of privacy....

The right of privacy is not simply a very important means to highly valued but distinct ends. Rather, privacy is further an end in itself--an essential condition of political liberty and our very humanity. Without the opportunities privacy provides for personal autonomy, emotional release, self-evaluation and limited and protected communications, individual political freedom as we know it would not flourish. Democracy requires both individual growth, creativity and responsibility, and an inner zone of personal security which the state cannot penetrate. Privacy provides both that zone of impenetrable individuality and the means by which public contributions can flow from responsible individual control over oneself. Privacy both protects private citizens from state control and permits full development of their public selves....

Once care is taken to analyze the concept of privacy, its relationship to personal testimonial privileges is quite striking. Indeed, it is not a farfetched view that personal evidentiary privileges go to the heart of the modern American citizen's need for a right of privacy. For, to repeat, the essence of that right is control over, not the absence of, information. In this regard, privacy is a two-sided concept. People in society constantly are seeking a balance between personal secrecy and social participation. The principal contribution of this right of privacy is that it permits individuals to seek their own balance without being forced to choose between the extremes of total secrecy and total openness. For this reason, it is even more important to the preservation of a useful right of privacy that limited communication be possible than that full secrecy be available.

Testimonial privileges, through fostering this control, help to provide a context for the development of personal autonomy, emotional release, self-evaluation, and limited and protected communication. None of these ends is attainable solely by oneself; successful pursuit of any one of them apparently requires at least some disclosure to another, but that must occur in a situation which permits individual control over the breadth of disclosure. And, as further noted above, providing a means for attaining these ends is essential to the maintenance of democracy and the human condition.

Indeed, this need for controlled disclosure such as by privileged communication, touching as it does upon such fundamental conditions of our society, is supported not simply by considerations of privacy, but by similar and perhaps more familiar principles respecting the function of freedom of speech. For the social policies furthered by recognition of a right of personal privacy are in many instances similar to those protected by the theoretical underpinnings of freedom of speech....

Proponents of testimonial privileges need not carry the burden of proving what factors influence behavior. Privileges also are important for other reasons as well. For in protecting those relatively few confidential utterances that do bear upon concrete litigation, the law protects all those that may. Moreover, the societal recognition of the right of privacy entailed in permitting a claim of personal privilege serves as an embodiment of the fundamental regard in which society does, and should, hold that right. Most important, however, is the simple fact that when a particular confidant's claim of privilege is upheld, so is his very right of privacy. That society cannot protect against all abridgments of that right makes it more, not less, imperative that privacy be preserved whenever possible. That we cannot guarantee the inviolability of every man's every attempt to strike his own balance between secrecy and participation does not mean judges should be unleashed to compel divulgence of every confidence they can discover. In short, our security and privacy is enriched substantially when a testimonial privilege, properly invoked, is given societal approval....

The confidential communication that is part and parcel of the right of privacy may pass between parent and child or counsellor and client or roommate and roommate, as well as husband and wife or doctor and patient. Not only attorneys and their clients, but also judges and their clerks and legislators or administrators and their aides, may need the privilege if law is to be freely and fairly administered. Like the corporation's trade secret, such matters deserve a finer, more discriminating treatment than wholesale rejection in advance of every such claim of privilege, without regard to the necessity for the testimony or the availability of other techniques to better protect the interests of all litigants. Accordingly, a general, qualified privilege for confidential communications that pass between individuals intimately related or in a position of close personal trust should be adopted, modeled upon the trade secrets provision of rule 508.

Krattenmaker, Testimonial Privileges in Federal Courts: An Alternative to the Proposed Federal Rules of Evidence, 62 Geo. L.J. 61, 85-94 (1973). See also Louisell, Confidentiality, Conformity and Confusions: Privileges in Federal Court Today, 31 Tul. L. Rev. 101 (1956).

Krattenmaker's response was a typical reaction at one extreme to the Supreme Court's proposed rules on privileges, the most controversial of the proposed Federal Rules. Some of the criticism was based on clear-cut policy differences and focused on specific proposed privileges or the absence of others--for example, the lack of a reporter's privilege. Other criticism was more broadly based on separation of powers and federalism grounds, contending that it was for the legislature and not the courts to create rules of privilege and that in diversity cases state rather than federal rules should apply.

To prevent the controversy over the privilege rules from delaying the entire Federal Rules, Congress decided to delete all 13 of the Court's proposed privilege rules (nine privileges and four ancillary rules) and to substitute a single rule, Rule 501, which did two things:

(1) It adopted the approach of Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), by mandating that in federal court cases governed by state substantive law, state law as to privileges shall apply; and

(2) It provided that in cases governed by federal substantive law the principles of the common law shall apply, "as they may be interpreted by the courts of the United States in the light of reason and experience."

` In short, the final version of the Federal Rules left the whole matter of privileges up in the air and the philosophical debate over the underlying justification for the recognition and nonrecognition of certain privileges no closer to a resolution.

Must one choose sides in this debate? Does either the instrumentalist or the humanistic approach by itself provide a satisfactory explanation for the recognized privileges and for the nonrecognition of seemingly similar but unprotected relationships? If not, perhaps it is because there is more than one type of privilege designed to accomplish more than one purpose.

Indeed, there seem to be at least two distinct types of privileges. A rudimentary binary classification of privileges could be made on the basis of the relationship between the holder of the privilege and the other communicant. The first class or group of privileges includes those in which a professional counseling relationship exists between the holder of the privilege and the "other." Privileges of this sort include the well-recognized ones of lawyer-client, physician-patient, and communications-to-clergy and the generally unrecognized ones of accountant-client, social worker, and stockbroker. The most obvious purpose of recognizing these privileges is to foster the effective rendering of the professional service offered by the counselor.

The second group of privileges includes those that are designed simply to throw a veil of secrecy around specific zones of privacy in order to protect individual autonomy and human dignity. No professional relationship is involved and no furthering of any service need be demonstrated. Examples of these privileges include the marital privilege and the privilege against self-incrimination.

These categories necessarily overlap. The reporter's privilege is one example of a privilege that falls into both categories, and there may be others. Nonetheless, it may be helpful to try to sort the privileges in this fashion to see whether more than one test should be applied to determine if a putative privilege should be recognized. For example, perhaps only the privileges in the first group--those based on the existence of a professional relationship--should be subjected to an instrumentalist or pragmatic test; those in the second group may not be susceptible to the same analysis. If this is true, then on what basis might they be justified? And why do these justifications fail to justify privileges for communications between "best friends" and "grandma-grandson" as well?

Despite all the effort that has been devoted to rationalizing the law of privileges, it is possible that neither the instrumentalist-utilitarian approach nor the humanistic approach can justify either the present system of privileges as a whole or even any particular privilege. For the professional privileges, for example, what data would suffice to prove that the utilitarian calculus justifies the various privileges? Is it possible to obtain such data? What data justifies the nonprofessional privileges? How would a social scientist go about testing the assumptions or assertions that underlie most thinking about these privileges? If it is not possible to demonstrate under either the utilitarian or humanistic approach that the various established privileges should exist and that other asserted privileges should not, what else explains the present system of privileges?

Does an alternate thesis that privileges rest on relative power and influence exercised by certain segments of society better explain the present system of privileges? After all, we are talking about privilege.