Objection: Privilege

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Background

This objection applies when the opponent asks a questions the answer to which is protected by a common law or statutory “privilege”. Put simply, that term means that the witness (or someone else) has a legal privilege (or right) not to answer the questions (or to forbid someone else from answering it). What does and does not qualify as a privilege is almost always grounded in the public policy that people should feel free and unconstrained in certain communications or activities. For example, the most powerful privilege is usually considered to be the attorney-client privilege. If clients have to fear that their lawyers can be made to testify against them, the clients would be foolish to speak openly and candidly to their own lawyers, and the administration of justice would suffer. Thus, it is very rare that people cnl be forced to answer questions about communications between a lawyer and a client. Like with all privileges though, the attorney-client privilege has exceptions. For example, an attorney may break the privilege to prevent a substantial (usually defined as imminent, physical, harm). This would apply if a client believably tells a lawyer he is planning to kill someone. (Conversely, a lawyer could never report a client’s communications concerning a crime the client has already committed.) Other exceptions to the attorney-client privilege exist, and must be researched thoroughly. Importantly, the attorney-client privilege does not apply if the communication from client to lawyer in front of someone else who is not covered by the privilege. For example, a lawyer can have his secretary, private investigator, or law clerk in a meeting with a client without destroying the attorney-client privilege because these people are members of the “defense team”. However, the presence of a client’s wife, mother, or friend in a meeting could destroy the privilege because the discussion would no longer be a private communication. The wife, mother, friend, and maybe even the lawyer could be forced to testify about the client’s statements at such a meeting. Below are some other examples of privileges and the policy reasons for them:

Examples of Privileges

Spousal Privilege

A spouse may refuse to testify against his or her current spouse about any matter (usually with a few exceptions, such as the abuse of the witness spouse by the defendant spouse). However, this privilege belongs only to the witness, and not a defendant or party to a case. For example, a person’s husband can refuse to testify against his current wife, but the wife in such a case cannot prevent the husband’s testimony if he wishes to testify.

Spousal Communications

A spouse may refuse, and a spouse who is a party may prevent, a spouse from testifying about any communication made between spouses while married. This differs from the general spousal privilege in that (1) it only protects private communications (and not, for example, eyewitness testimony); (2) both spouses may enforce the privilege; and (3) it applies only to communications made during a marriage.

Both spousal privileges are designed to foster trust in marriages, and do so in different ways. Number one operates to prevent the tension on a marriage from the one spouse being forced to be a witness against the other. Thus, it does not apply to people who have already divorced. Number two operates to allow spouses to feel comfortable that their spouse will never be able to reveal their private communications – even if the two grow apart, divorce, and come to hate each other. Thus, this privilege applies even when the marriage has dissolved, as long as the communication at issue was made during the marriage.

Doctor-Patient Privilege

Generally, a doctor cannot be forced to testify (or allowed to testify over a patient’s objection) about private communications during the course of treatment. This privilege does not apply to any statement made to a doctor anytime, but only those in the course of treatment. The policy behind this rule is to foster trust from patient to doctor so that the doctor may treat people based on truthful information.


See Common Objections at Trial