What are the Different Types of Legal Privilege?
The principal types of legal privilege are attorney-client, clergy-communicant, marital confidences, therapist-patient, and the privilege against self-incrimination. These privileges are available in the US and other common law countries. With the exception of the privilege against self-incrimination, privileged statements are those made within a special relationship of trust, which the law protects from disclosure.
The attorney-client privilege dates to the 1500’s and was the first legal privilege recognized under English common law. For the privilege to be invoked, the client’s statements must have been made to the attorney for obtaining legal advice. The statements must also have been made while an attorney-client relationship existed.
The privilege does not apply to someone seeking advice on how to commit a crime. It can also be waived, as the privilege belongs to the client and not to the attorney. It may be waived if the client discloses the confidential information to a third party. It is also waved if the client accuses the attorney of wrongdoing or negligence. Privileged information may then be disclosed if necessary for the attorney to explain or defend against the allegations.
Marital confidences are also a legal privilege. Sometimes called the marital communications privilege, it applies to both civil and criminal cases. Under the privilege, one spouse cannot be compelled to give harmful testimony against the other concerning confidences exchanged during marriage. The confidences are not protected if made prior to the marriage or disclosed to a third party. However, the privilege does survive the dissolution of a marriage if the statements were made while the parties were still married.
All US jurisdictions recognize the legal privilege of confessions or confidential communications made to a clergy member. As long as the statements made by the communicant are intended to be private and are made for the purpose of spiritual guidance, they are protected. The privilege is not only the communicant’s, but can be invoked by the clergyman as well. Even statements made in a group discussion may be protected if it was conducted by a clergyman, and the statements were for obtaining spiritual guidance.
In the US, the therapist-patient privilege was largely developed through state legislatures. It was later adopted by the Supreme Court and extended to licensed social workers acting as counselors. The privilege is grounded in the patient’s need for trust when disclosing private fears and embarrassing personal information. The privilege does not apply to threats to harm other people, and the therapist must inform the patient of this fact.
The legal privilege against self-incrimination is deeply rooted in criminal law and protected under the Fifth Amendment of the US constitution. It prohibits the government from compelling a defendant to give damaging or incriminating testimony against herself. The privilege is absolute and can only be waived by the defendant, who need not offer any testimony at her trial. The privilege can also be asserted in civil cases, but only if the witness’s testimony could in fact subject her to criminal charges.
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