Teachers' Manual to Green, Nesson & Murray, Problems, Cases and Materials on Evidence, 3rd Edition.

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A. Privileges in General (601)

Emphasizing the power relationships that privileges reflect is a way of moving discussion beyond the idealism of the "privilege as privacy" approach of Krattemneir and the superficial rigor of the "cost benefit" approach of Wigmore. Both approaches are largely subjective. What one person views as privacy another will often view as idiosyncrasy. Similarly, the utility calculations of the cost-benefit approach are heavily dependent on who makes them.

Put in the form of a debatable issue, the proposition for discussion is that privacy and cost-benefit analyses of privilege provide post-hoc rationalizations for rules that are better understood as consolidations of power of the privileged group. This observation can, of course, be made about any rules of law that affect power relationships. Nonetheless, the rules of privilege are particularly interesting because the connection between privilege and power is so obvious and the idealistic rationalizations for privileges are often thin. The Far er case is included to provide a point of departure for this discussion.

In Re Farber (State v. Jascalevich), 78 N.J. 259, 394 A.2d 330 (1978) (609)

The court overrides a clear-cut effort by the New Jersey legislature to create an evidentiary reporter's privilege. The logic of the opinion would seem to extend equally to any other privilege. Given the primacy the Court attaches to the right to fair trial, one might expect any other privilege to fall if in conflict. If, however, one sees the Farber case as a tussle between the power of the press and the power of the courts, or more parochially, as a struggle between the New York Times and the New Jersey courts, then the reach of the opinion is much more limited. The church, for example, does not threaten the judiciary as the press does. The courts can defer to the church by honoring a priest-penitent privilege without seeming to be dominated by the church. The Farber case, in other words, is more explicable if seen as a macho battle in which the trial court sought to force the New York Times to submit.

It is not at all clear that the court needed to order Farber to disclose who his sources were and what they said to him in order to protect the defendant's interests, or that ordering disclosure did protect the defendant's interests. The most that might have been disclosed by Farber would have been prior inconsistent statements of the prosecution witnesses. The statements (if indeed they proved to be inconsistent) would have been hearsay inadmissible for their truth. (The interviews with Farber were not made under oath in a proceeding, thus are not admissible for their truth under a rule like FRE 801(d)(1).) It is not at all clear, therefore, that it was necessary to override Farber's privilege in order to gain "the correct disposal of the litigation." In fact, Farber never complied with the order to disclose, yet the case against Jascalevich was allowed to go to the jury, and the jury acquitted.

Professor Alfred Hill, in Testimonial Privilege and Fair Trial, 80 COLUM. L. REV. 1173 (1980) (an article written largely in response to Farber) points out that courts have traditionally found ways to protect defendants without requiring a breach of privilege:

When a defendant in a criminal case has been given relief from the prejudicial operation of a privilege, the mode of relief deemed appropriate has traditionally been one of the following:

1. Dismissal of the prosecution. This is exemplified by cases involving the informers privilege. If the defendant makes an appropriate showing that disclosure of the identity of the informer is needed for his defense, the courts do not require the government to name the informer; what the courts do is put the government to the choice of naming the informer or dropping the case. This indeed is the practice with regard to governmental privileges generally.

2. Strike the testimony of the witness. If effective cross-examination of a witness is balked by an invocation of privilege, the pertinent testimony given by the witness on direct examination is ordered stricken, with a suitable admonition to the jury, if such a measure (as distinct from ordering a new trial) is deemed adequate protection for the defendant.

3. Permitting the jury to draw an inference. In theory the prejudicial effect of an assertion of privilege may be countered by permitting the jury to draw an inference that the testimony of the witness, if given, would have been favorable to the defendant on the particular issue, insofar as the circumstances of the case permit the rational drawing of such an inference. There has been limited recognition of the propriety of such a remedy in criminal cases.

So far as the writer has been able to determine, the foregoing are the only remedies traditionally accorded (the third hardly at all) to the defendant deemed entitled to relief from an otherwise applicable privilege. And it is striking that none of them involves destruction of the privilege: in all instances the courts act to protect the rights of the defendant without breach of the privilege. Moreover, such protection is normally superior to that given in the Farber case. For there, the reporter, his privilege invalidated, chose jail, as most reporters probably would. The court's action in this regard contributed not an iota to the defendant's ultimate vindication.

Professor Hill's comments further suggest that what was driving the Farber case was not so much a "logic" of privileges as a symbolic contest of institutions. That was exactly what Jascalevich's defense lawyer wanted. The result of the privilege controversy was to shift the focus away from the defendant by highlighting antipathy for the press in general and for the New York Times in particular.

Evaluation of the reporter's privilege against Wigmore's four conditions is inconclusive.

(1) The reporter's privilege satisfies Wigmore's first condition: it deals with a communication which originates in confidence.

(2) There is a dispute whether the reporter's privilege is essential to the full and satisfactory maintenance of the relation between the parties. It is standard practice in reporters' privilege cases for the press to introduce multiple affidavits from prominent reporters relating the importance of confidentiality to obtaining sensitive news. But there has been no lack of news leaks or stories attributed to confidential sources in jurisdictions without a reporter's privilege, and most of the affidavits are ad hoc, anecdotal, and impossible to confirm.

(3) The reporter's privilege may or may not deal with a relationship which "ought" to be fostered. Again the question is, who decides? The New Jersey legislature attempted to decide just this.

(4) Is the injury caused by forced disclosure greater than the benefit gained by correct disposal of the litigation? The question calls for a comparative valuation of incommensurates, and surely would receive different answers from journalists on the one hand and judges on the other.

Problem - Clergyman, Psychiatrists, Lawyers (617)

Answer and Analysis:

It is hard to imagine a court that would intrude on the confessional, although the logic of Farber would seem to carry that far. Nor is any court likely to order a priest to disclose the contents of the confessional for purposes of inspection in camera. No doubt the priest-penitent privilege would be distinguished from the reporter's privilege on the basis of its longstanding recognition (as opposed to the New Jersey reporter's privilege which the New Jersey judges regarded as having been rammed through a cowed and compliant legislature by the press lobby), and on the basis of a constitutional underpinning of the priest-penitent privilege in the Free Exercise Clause.

An interesting and realistic variation on this problem is raised by the claims of rape-crisis therapists that conversations between them and rape victims should be privileged. This, of course, raises the same serious confrontation clause problems as in Farber and the problem variation on it. See Commonwealth v. Fuller, below.

A further variation would have the therapist be a minister. Does the minister rape-crisis therapist work under a privilege but the social worker rape-crisis therapist does not? Perhaps. The judicial attitude to the priestpenitent relationship has been expansive. See proposed FRE 506(b), which would have recognized a privilege for any confidential communication to a clergyman "in his professional character as spiritual advisor. The accompanying Advisory Committee Note comments: "Many clergymen now receive training in marriage counseling and the handling of personality problems. Matters of this kind fall readily into the realm of the spirit."

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