Finally, you have your opponent's star witness on the stand. You have been waiting the entire trial for this cross-examination. You can barely wait for the judge to declare "your witness" before you dive into your brilliant questions. But you have not even progressed beyond a few questions when the witness slams the brakes on your examination by asserting a privilege.
Witness privileges are not favored by the courts and are frequently viewed as a necessary evil. In order to be recognized, a privilege must "serve public ends." ( Jaffee v. Redmond (1996) 518 U.S. 1, 11 [citations omitted].) A working knowledge of the different kinds of recognized privileges is essential to competently and ethically represent your client, and effectively litigate your case.
Federal Rule of Evidence 501
Federal Rule of Evidence (FRE) 501 states that: "[e]xcept as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law."
FRE 501 acknowledges the necessity for the continued evolution of testimonial privileges, and grants federal courts the authority to develop them. (See Trammel v. United States (1980) 445 U.S. 40, 47.) There are several common witness privileges routinely asserted in litigation. One of the most common is the attorney-client privilege.
The attorney-client privilege is the oldest privilege protecting confidential communications under common law. ( Upjohn Co. v. United States (1981) 449 U.S. 383, 389 [citing J. Wigmore, Evidence ? 2290 (McNaughton rev. 1961)].) "Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client." (Id.) The party claiming the privilege has the burden of proving its application. ( United States v. Gann (9th Cir. 1984) 732 F.2d 714, 723 [citing United States v. Landof (9th Cir. 1978) 591 F.2d 36, 38].) While the attorney-client privilege protects communications from the client to the attorney, it may not protect the facts underlying the subject matter of the case. (See In re Six Grand Jury Witnesses (2d Cir. 1992) 979 F.2d 939, 944.)
The attorney-client privilege protects confidential communications from a client to an attorney for the purpose of obtaining legal advice. ( Fisher v. United States (1975) 425 U.S. 391, 403.) A client cannot fabricate a privilege by attempting to retain a lawyer to do something that a layperson could do just as easily. (See, e.g. In re Feldberg (7th Cir. 1988) 862 F.2d 622, 626.)
California Evidence Code Section 950 defines "lawyer" for purpose of the attorney-client privilege as either a person authorized to practice law, or a person "reasonably believed" by the client to be so authorized. This is in the spirit of encouraging full disclosure by the client. (Cal Ev Code 950 Law Revision Commission Comment.)
The attorney-client privilege only protects communications that were made under circumstances that the client reasonably expects to be in confidence. In United States v. Gann (9th Cir. 1984) 732 F.2d 714, the defendant made statements to his attorney over the phone while police officers were serving a search warrant in his home. The phone conversation was being made in the presence of several of the officers, one of whom told the detective "I think he is talking to his lawyer." (Id. at 722.) The detective then waited in the room to arrest the defendant once he had finished his conversation. The court held that the statements overheard by officers were properly introduced at trial because under the conditions they were made to the attorney, they were not made in confidence. (Id. at 723.)
Tune in next month for a continued examination of the attorney-client privilege and some scenarios that may cause ethical dilemmas.
The information in this column is intended to be informational only and does not constitute legal advice. Please shepardize all case law before using.
Patrick, Esq., is a deputy district attorney in the Special Operations Division of the San Diego District Attorney's Office. She can be contacted at email@example.com.