Other Privileged Relationships

Next, we will explore some other privileges for which most jurisdictions provide. Note that the privileges below are often discussed in relation to evidentiary problems in litigation, and not solely in the context of a professional responsibility dilemma. 

Physician-Patient Privilege

Though not adopted in all jurisdictions, the physician-patient privilege is still prevalent among most states. Generally, it holds that a physician (and sometimes a dentist or nurse) is prevented from disclosing in judicial proceedings information from a patient seeking medical treatment. See MacLeod v. Vest Transp. Co., 235 F. Supp. 369 (N.D. Miss. 1964). As with the attorney-client privilege, the holder is the patient or the client. The information must have been disclosed to enable the doctor to provide treatment, and must have been acquired while the physician was in the course of treating the patient. The privilege does not apply to information obtained by the physician about the patient in an alternative fashion.

If the patient discloses information not related to medical treatment, such as the story of how the patient got into a car accident, then the information will not be privileged and the physician might be called upon to testify to what the patient disclosed. 

EXAMPLE: Carson suffers a compound leg fracture in an auto accident. He apparently ran a red light. When he’s wheeled into the hospital emergency room, he tells his doctor, “Doc, I did it – I ran a red light – it was all my fault – I deserve this.” Carson will not be entitled to assert the physician-patient privilege to protect against the doctor’s compelled testimony, since the admission of fault did not pertain to his medical diagnosis or treatment. 

There are a large number of exceptions to the physician-patient privilege, rendering it rather weak in practice. See In re Rezulin Products Liability Litigation, 178 F. Supp. 2d 412 (S.D.N.Y. 2001). For one, whenever a patient’s physical condition is an issue in a case, a physician may be called to testify about what the patient said while seeking treatment. Thus, in cases in which a plaintiff is suing for personal injuries, and in which the extent of those injuries is an issue, the physician-patient privilege will not be applicable with regard to statements made to the doctor about the patient's physical condition.

Just as with the attorney-client privilege, if the doctor’s assistance is sought or obtained to further a crime or fraud, the privilege will not attach. If there is a suit between a physician and a patient, be it for malpractice or for collecting a fee, the privilege does not apply. A patient may also make an agreement to waive the privilege. 

Psychotherapist/Social Worker – Client Privilege

The federal courts and almost all the states in the Union recognize a privilege for confidential information disclosed to psychotherapists or social workers by their clients. As with the other privileges, the goal is to encourage individuals to seek treatment or advice from therapists. For the most part, the privilege functions just like the attorney-client privilege. See Oleszko v. State Comp. Ins. Fund, 243 F.3d 1154 (9th Cir. 2001).

EXAMPLE: John J. Jingleheimer’s adversary wants to interrogate Jingleheimer’s psychologist, Sherry Pheling, regarding Jingleheimer’s mental state at the time of his decision to break his employment contract as a parole officer with the Bureau of Prisons. Jingleheimer made confidential disclosures to Pheling, expecting those confidences to be kept under wraps. The law will function to protect those disclosures from discovery – especially in light of the fact that an interrogation of Pheling would likely serve little evidentiary value. 

Husband-Wife Privileges - Spousal Immunity 

The goal of the spousal immunity rule is to protect the marital relationship from the intrusion of the state seeking to prosecute criminals. Note that for the spousal immunity rule to apply, there first must be an existing, valid marriage.

Many jurisdictions have enacted this husband-wife privilege, which permits a married criminal defendant to prevent his spouse from testifying against him. See A.B. v. United States, 24 F. Supp. 2d 488 (D. Md. 1998). The statutes hold that the prosecution may not call, as a witness, a married person whose spouse is the criminal defendant, to testify against the defendant spouse in any criminal proceeding. The same rule goes for a grand jury proceeding -- the spouse of an accused may not be called as a witness against the accused. (At a grand jury proceeding, a jury hears testimony and decides whether or not the prosecution has enough evidence to convict an accused, in which case the jury will vote to “indict” the accused based on the prosecution’s charges). 

Spousal immunity in the federal courts differs from the rules in some states. In federal courts, a spouse is allowed to testify against the other in a criminal case, with or without the consent of the criminal defendant-spouse. The witness may not be compelled to testify, however. The federal courts’ rationale is that if a spouse is willing to testify against a spouse, the marital relationship is probably not worthy of protection. Here’s an example of a federal spousal immunity rule:

EXAMPLE: The United States Attorney’s Office for the Southern District of New York prosecutes Mellie Mobster for racketeering and murder. The lead prosecutor hears that Mellie’s wife is on the outs with the defendant, and requests that the defendant’s wife testify to Mellie’s criminal exploits on behalf of the prosecution. Mellie’s wife agrees. The federal laws do not entitle Mellie to invoke the spousal immunity principle, so Mellie’s wife may testify. However, if Mellie’s wife changes her mind, the government may not compel her to testify against her husband. 

In some states, however, the privilege belongs to the party-spouse, or the criminal defendant. The witness-spouse’s testimony may not be compelled by the state, and the defendant-party-spouse may assert the privilege and prevent his spouse from testifying. Here’s an example of a state spousal immunity rule:

EXAMPLE: The District Attorney in Baltimore, Maryland is prosecuting Kal Ripptskin for assaulting an old friend with a corked baseball bat. Mrs. Ripptskin prepares to testify against Kal, because she feels what he did was terribly wrong and that even though he is her husband, justice must be done for the good of the state, the country, the hemisphere, Earth, the solar system, the galaxy, and the universe at large. In these jurisdictions, Kal, as the party-spouse to the criminal proceeding, is entitled to invoke the spousal immunity principle and prevent Mrs. Ripptskin from testifying against him. 

Note that spousal immunity only survives if the marriage survives. The privilege ends upon divorce or annulment, as the purpose of the rule in the first place is to keep a marriage together. 

Husband-Wife Privileges - Confidential Marital Communications Privilege

Whether a case is civil or criminal, either spouse holds a privilege to refuse disclosure of a confidential communication made between the spouses while they remained husband and wife. Both spouses hold the privilege, and it does not matter which one is party to a case. Either spouse may refuse to allow the other to testify as to a confidential communication, or refuse to personally disclose the contents of the confidential communication between the spouses during the marriage. The law aims to promote communication and trust between husbands and wives. 

Both spouses hold the privilege. Either spouse has the right to refuse disclosure of the confidential marital communications, or to prevent another person from disclosing the communications. However, this privilege only protects against the disclosure of marital confidences in testimony, not against cooperation with law enforcement officials by one spouse against the other or against one spouse turning over evidence against the other spouse. See United States v. Giavasis, 805 F.2d 1037 (6th Cir. 1986).

For the privilege to attach, the communication must have been made during a valid marriage. Unlike the spousal immunity rule, divorce does not terminate the privilege retroactively – even if a husband and wife divorce, their confidential communications made during the course of the marriage will still enjoy protection from disclosure. Divorce, however, will terminate the privilege when it comes to future communications between the former husband and wife.

EXAMPLE: Jackie and Gillian divorce. Jackie may still invoke the confidential marital communications privilege when it comes to Gillian’s threatened disclosure of private things Jackie said to Gillian during their marriage. However, if Jackie and Gillian continue to have discussions, because they are divorced, none of their discussions following divorce may enjoy protection from disclosure based on the confidential marital communications privilege. 

In addition, the communication between husband and wife must be made in reliance upon the intimate nature of the marital relationship. Communications involving business discussions, any abusive language, and misconduct toward another spouse will not enjoy protection – the whole point of the privilege is to promote intimate conversation between spouses, and as such, there is no policy reason to protect these communications. 

Communications made in the presence of a stranger who is known to the parties will not be privileged, as they lose their confidential status. The privilege does not apply to any actions between the spouses or in cases where a crime was committed against a testifying spouse. Also, cases involving either spouse’s children do not allow for the invocation of the confidential marital communications privilege.