In the
law of evidence, a privilege is a rule of evidence that allows the holder of the privilege to refuse to disclose information or provide evidence about a certain subject or to bar such evidence from being disclosed or used in a judicial or other proceeding.
There are many such privileges recognised by the judicial system, some stemming from the
common law
Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...
and others from
statute law
A statute is a law or formal written enactment of a legislature. Statutes typically declare, command or prohibit something. Statutes are distinguished from court law and unwritten law (also known as common law) in that they are the expressed wil ...
. Each privilege has its own rules, which often vary between jurisdictions.
Types
One well-known privilege is the
solicitor–client privilege, referred to as the
attorney–client privilege
Attorney–client privilege or lawyer–client privilege is the common law doctrine of legal professional privilege in the United States. Attorney–client privilege is " client's right to refuse to disclose and to prevent any other person fro ...
in the
United States
The United States of America (USA), also known as the United States (U.S.) or America, is a country primarily located in North America. It is a federal republic of 50 U.S. state, states and a federal capital district, Washington, D.C. The 48 ...
and as the
legal professional privilege
In common law jurisdictions and some civil law jurisdictions, legal professional privilege protects all communications between a professional legal adviser (a solicitor, barrister or attorney) and his or her clients from being disclosed without ...
in
Australia
Australia, officially the Commonwealth of Australia, is a country comprising mainland Australia, the mainland of the Australia (continent), Australian continent, the island of Tasmania and list of islands of Australia, numerous smaller isl ...
. This protects confidential communications between a client and his or her legal adviser for the dominant purpose of legal advice. The rationale is that clients ought to be able to communicate freely with their lawyers, in order to facilitate the proper functioning of the legal system.
Other common forms include privilege against compelled
self-incrimination (in other proceedings),
without prejudice privilege (protecting communications made in the course of negotiations to settle a legal dispute),
public interest privilege (formerly Crown privilege, protecting documents for which secrecy is necessary for the proper functioning of government),
spousal (marital) privilege,
medical professional privilege, and
clergy–penitent privilege.
In the US, several states have enacted the ''Uniform Mediation Act'' (UMA) which specifies a
mediator's privilege with regard to state procedures. In the UK, "mediation privilege" is generally protected, although in the case of Ruttle Plant Hire v
DEFRA (2007), an
action brought to seek to set aside a
settlement agreement on the grounds that it was entered into under
economic duress, there was a call for the mediator to give evidence on her recollection of the mediation process.
In the United Kingdom, the
Rehabilitation of Offenders Act 1974 provides that evidence relating to spent convictions (those in respect of which the Act says the convicted person is rehabilitated, generally older and less serious ones) is inadmissible and provides privilege against answering questions relating to such convictions; although some exceptions apply, in particular in criminal proceedings.
Effect
The effect of the privilege is usually a right on the part of a party or witness to a case, allowing them to refuse to produce evidence in the form of documents or testimony from the person entitled to the privilege. For example, a person can generally prevent their attorney from testifying about the legal relationship between attorney and client, even if the attorney were willing to do so. In this case, the privilege belongs to the client and not the attorney.
In a few instances, such as the marital privilege, the privilege is a right held by the potential witness. Thus, if a wife wishes to testify against her husband, she may do so even if he opposes this testimony; however, the wife has the privilege of refusing to testify even if the husband wishes her to do so.
On the other hand, the person entitled to a privilege is at liberty to
waive the privilege.
Examples of privileged information
*
Accountant–client privilege
*
Attorney–client privilege
Attorney–client privilege or lawyer–client privilege is the common law doctrine of legal professional privilege in the United States. Attorney–client privilege is " client's right to refuse to disclose and to prevent any other person fro ...
*
Banker–client privilege
*
Priest–penitent privilege
*
Physician-patient privilege
*
Psychotherapist–patient privilege
*
Reporter's privilege
Reporter's privilege in the United States (also journalist's privilege, newsman's privilege, or press privilege), is a "reporter's protection under constitutional or statutory law, from being compelled to testify about confidential information or ...
*
State secrets privilege
**
Classified Information Procedures Act
See also
*
Admissible evidence
Admissible evidence, in a court of law, is any Testimony, testimonial, Documentary evidence, documentary, or tangible evidence (law), evidence that may be introduced to a Trier of fact, factfinder—usually a judge or jury—to establish or to ...
*
Deliberative process privilege
Deliberative process privilege is the common-law principle that the internal processes of the executive branch of a government are immune from normal disclosure or discovery in civil litigations, Freedom of Information Act requests, etc.
The th ...
*
Privilege log
*
Public-interest immunity
Public interest immunity (PII), previously known as Crown privilege, is a principle of English law, English common law under which the English courts can grant a court order allowing one litigant to refrain from Discovery (law), disclosing evidence ...
*
Reporters' privilege
*
Right to silence
*
Shield law
*
Silent witness rule
*
Subpoena duces tecum
References
External links
Coburn–Ensign Privilege Claims
{{Authority control