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Testimonial Privileges

When a witness is called to testify in a criminal trial they may be able to assert a testimonial privilege that may prevent them from testifying about a certain fact or event. The law regarding testimonial privileges varies between federal and state court. In federal court no specific privileges are recognized except that between an attorney and a client, a husband and a wife, and psychotherapist or social worker and a client.

General Information about Testimonial Privileges

The person who holds the testimonial privilege may only assert the privilege. The privilege is personal. In order for a communication to be privileged it must be shown that the communication was private or made in confidence. If the witness seeking to assert the privilege fails to timely assert it, the privilege is deemed waived.

Attorney-Client Privilege

The attorney-client privilege is the most popular and well-known privilege that one may assert. All confidential communications made during a professional meeting between an attorney and a client are deemed privileged. There are several requirements that must be met before one may be able to assert this privilege. First, an attorney-client relationship must actually exist. Any communications made before the relationship existed are not privileged. Second, the privilege must be confidential. The communication is still confidential if representatives of the attorney or the client were present. Last, the client holds the privilege. The client may waive the privilege but the attorney may not.

The attorney-client privilege does not apply when:

  • The attorney’s services were sought to aid in the planning or commission of crime or fraud.
  • The communication is relevant to an issue of a breach of a duty in a dispute between an attorney and a client.

Physician-Patient Privilege

This privilege belongs to the patient. The patient may claim or waive the privilege. This privilege exists when:

  • A professional physician-patient relationship exists.
  • The information is acquired during the course of the treatment.
  • The information is necessary for treatment.

The privilege does not apply when:

  • The patient puts her physical condition in issue.
  • Treatment was sought to aid in wrongdoing.
  • The patient agreed waived the privilege.
  • Some courts do not recognize this privilege.

Psychotherapist or Social Worker-Client Privilege

The psychotherapist or social worker privilege is a federally recognized privilege. Any communications made to a psychotherapist or social worker are deemed confidential. The client may assert the privilege.

Husband-Wife Privilege

There are two types of privileges involving marital couples. One privilege is spousal immunity and the other privilege is confidential marital communications. Spousal immunity is applicable for a married person who is called to testify in their spouse’s criminal trial. The married person may not be compelled to testify in any criminal proceeding against their spouse. In federal court, the privilege belongs to the witness spouse and in most state courts the privilege belongs to the defendant spouse.

The privilege for confidential communications is applicable to confidential communications made between a husband and wife during the course of their marriage. An actual marital relationship must exist at the time the communication was made in order for the privilege to apply.

Privilege Against Self-Incrimination

In accordance with the Fifth Amendment to the United States Constitution, a defendant or witness cannot be compelled to testify in a manner that would incriminate her. The defendant of witness may refuse to testify.