PRIVILEGE

privilege. 1. A special legal right, exemption, or immunity granted to a person or class of persons; an exception to a duty. • A privilege grants someone the legal freedom to do or not to do a given act. It immunizes conduct that, under ordinary circumstances, would subject the actor to liability.

absolute privilege. A privilege that immunizes an actor from suit, no matter how wrongful the action might be, and even though it is done with an improper motive. Cf. qualified privilege. [Cases: Libel and Slander 36; Torts 16. C.J.S. Libel and Slander; Injurious Falsehood§§ 58, 65, 69; Right of Privacy and Publicity §§ 20, 28, 31–33, 44; Torts § 7, 12, 14–15, 51, 64, 92–93.]

audit privilege. See AUDIT PRIVILEGE.

conditional privilege. See qualified privilege.

courtroom privilege. See judicial privilege.

deliberative-process privilege. A privilege permitting the government to withhold documents relating to policy formulation to encourage open and independent discussion among those who develop government policy. [Cases: Witnesses 216(1). C.J.S. Witnesses §§ 361–364, 366–367.]

judicial privilege. Defamation. The privilege protecting any statement made in the course of and with reference to a judicial proceeding by any judge, juror, party, witness, or advocate. — Also termed courtroom privilege. [Cases: Libel and Slander 38. C.J.S. Libel and Slander; Injurious Falsehood § 71.]

legislative privilege. Defamation. The privilege protecting (1) any statement made in a legislature by one of its members, and (2) any paper published as part of legislative business. — Also termed (in a parliamentary system) parliamentary privilege. [Cases: Libel and Slander 37. C.J.S. Libel and Slander; Injurious Falsehood § 76.]

litigation privilege. A privilege protecting the attorneys and parties in a lawsuit from defamation claims arising from statements made in the course of the suit. [Cases: Libel and Slander 38. C.J.S. Libel and Slander; Injurious Falsehood § 71.]

official privilege. The privilege immunizing from a defamation lawsuit any statement made by one state officer to another in the course of official duty. [Cases: Libel and Slander 39, 42. C.J.S. Libel and Slander; Injurious Falsehood §§ 69–70, 99–100, 103.]

privilege from arrest. An exemption from arrest, as that enjoyed by members of Congress during legislative sessions. U.S. Const. art. I, § 6, cl. 1. [Cases: Arrest 59. C.J.S. Arrest § 5.]

qualified privilege. A privilege that immunizes an actor from suit only when the privilege is properly exercised in the performance of a legal or moral duty. — Also termed conditional privilege. Cf. absolute privilege. [Cases: Libel and Slander 41; Officers and Public Employees 114; Torts 16. C.J.S. Libel and Slander; Injurious Falsehood§§ 59, 62–65, 83–87, 90; Officers and Public Employees § 247–248, 251–258; Right of Privacy and Publicity §§ 20, 28, 31–33, 44; Torts §§ 7, 12, 14–15, 51, 64, 92–93.]

“Qualified privilege … is an intermediate case between total absence of privilege and the presence of absolute privilege.” R.F.V. Heuston, Salmond on the Law of Torts 165 (17th ed. 1977).

special privilege. 1. A privilege granted to a person or class of persons to the exclusion of others and in derogation of the common right. 2. See personal privilege under PRIVILEGE(5).

testimonial privilege. A right not to testify based on a claim of privilege; a privilege that overrides a witness’s duty to disclose matters within the witness’s knowledge, whether at trial or by deposition. [Cases: Witnesses 297. C.J.S. Witnesses § 522.]

viatorial privilege (vI-<<schwa>>-tor-ee-<<schwa>>l). A privilege that overrides a person’s duty to attend court in person and to testify.

work-product privilege. See WORK-PRODUCT RULE.

2. An affirmative defense by which a defendant acknowledges at least part of the conduct complained of but asserts that the defendant’s conduct was authorized or sanctioned by law; esp., in tort law, a circumstance justifying or excusing an intentional tort. See JUSTIFICATION(2). Cf. IMMUNITY(2). [Cases: Torts 16. C.J.S. Right of Privacy and Publicity §§ 20, 28, 31–33, 44; Torts§§ 7, 12, 14–15, 51, 64, 92–93.] 3. An evidentiary rule that gives a witness the option to not disclose the fact asked for, even though it might be relevant; the right to prevent disclosure of certain information in court, esp. when the information was originally communicated in a professional or confidential relationship. • Assertion of a privilege can be overcome by proof that an otherwise privileged communication was made in the presence of a third party to whom the privilege would not apply. [Cases: Witnesses 184–223. C.J.S. Witnesses §§ 297–389.]

accountant–client privilege. The protection afforded to a client from an accountant’s unauthorized disclosure of materials submitted to or prepared by the accountant. • The privilege is not widely recognized. [Cases: Witnesses 196.2. C.J.S. Witnesses § 356.]

antimarital-facts privilege. See marital privilege (2).

attorney–client privilege. The client’s right to refuse to disclose and to prevent any other person from disclosing confidential communications between the client and the attorney. — Also termed lawyer–client privilege; client’s privilege. [Cases: Witnesses 197. C.J.S. Witnesses §§ 316–340.]

“There are a number of ways to organize the essential elements of the attorney–client privilege to provide for an orderly analysis. One of the most popular is Wigmore’s schema: ‘(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose (4) made in confidence (5) by the client (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the privilege be waived.’ Though this organization has its virtues, there is some question as to whether it completely states the modern privilege.” 24 Charles Alan Wright & Kenneth W. Graham Jr., Federal Practice and Procedure § 5473, at 103–04 (1986) (quoting 8 John Henry Wigmore, Evidence § 2292, at 554 (John T. McNaughton rev., 1961)).

“At the present time it seems most realistic to portray the attorney–client privilege as supported in part by its traditional utilitarian justification, and in part by the integral role it is perceived to play in the adversary system itself. Our system of litigation casts the lawyer in the role of fighter for the party whom he represents. A strong tradition of loyalty attaches to the relationship of attorney and client, and this tradition would be outraged by routine examination of the lawyer as to the client’s confidential disclosures regarding professional business. To the extent that the evidentiary privilege, then, is integrally related to an entire code of professional conduct, it is futile to envision drastic curtailment of the privilege without substantial modification of the underlying ethical system to which the privilege is merely ancillary.” John W. Strong, McCormick on Evidence § 87, at 121–22 (4th ed. 1992).

clergyman–penitent privilege. See priest–penitent privilege.

client’s privilege. See attorney–client privilege.

doctor–patient privilege. The right to exclude from discovery and evidence in a legal proceeding any confidential communication that a patient makes to a physician for the purpose of diagnosis or treatment, unless the patient consents to the disclosure. — Also termed patient–physician privilege; physician–patient privilege; physician–client privilege. [Cases: Witnesses 207. C.J.S. Witnesses §§ 341–355.]

editorial privilege. See journalist’s privilege (2).

executive privilege. A privilege, based on the constitutional doctrine of separation of powers, that exempts the executive branch of the federal government from usual disclosure requirements when the matter to be disclosed involves national security or foreign policy. Cf. executive immunity under IMMUNITY(1). [Cases: Witnesses 216. C.J.S. Witnesses §§ 361–364.]

husband–wife privilege. See marital privilege.

informant’s privilege. The qualified privilege that a government can invoke to prevent disclosure of the identity and communications of its informants. • In exercising its power to formulate evidentiary rules for federal criminal cases, the U.S. Supreme Court has consistently declined to hold that the government must disclose the identity of informants in a preliminary hearing or in a criminal trial. McCray v. Illinois, 386 U.S. 300, 312, 87 S.Ct. 1056, 1063 (1967). A party can, however, usu. overcome the privilege by demonstrating that the need for the information outweighs the public interest in maintaining the privilege. — Also termed informer’s privilege. [Cases: Criminal Law 627.6; Witnesses 216(4). C.J.S. Criminal Law § 495; Witnesses § 365.]

joint-defense privilege. The rule that a defendant can assert the attorney–client privilege to protect a confidential communication made to a codefendant’s lawyer if the communication was related to the defense of both defendants. — Also termed common-interest doctrine. [Cases: Witnesses 199(2). C.J.S. Witnesses § 325.]

journalist’s privilege. 1. A reporter’s protection, under constitutional or statutory law, from being compelled to testify about confidential information or sources. — Also termed reporter’s privilege; newsman’s privilege. See SHIELD LAW(1). [Cases: Witnesses 196.1. C.J.S. Witnesses § 358.] 2. A publisher’s protection against defamation lawsuits when the publication makes fair comment on the actions of public officials in matters of public concern. — Also termed editorial privilege. See FAIR COMMENT. [Cases: Libel and Slander 49. C.J.S. Libel and Slander; Injurious Falsehood §§ 98, 102–104.]

lawyer–client privilege. See attorney–client privilege.

marital privilege. 1. The privilege allowing a spouse not to testify, and to prevent another person from testifying, about confidential communications between the spouses during the marriage. — Also termed marital-communications privilege. [Cases: Witnesses 187. C.J.S. Witnesses §§ 299–315.] 2. The privilege allowing a spouse not to testify in a criminal case as an adverse witness against the other spouse, regardless of the subject matter of the testimony. — Also termed (in sense 2) privilege against adverse spousal testimony; antimarital-facts privilege. [Cases: Witnesses 51. C.J.S. Witnesses §§ 147, 159, 163–164, 171, 173.] 3. The privilege immunizing from a defamation lawsuit any statement made between husband and wife. — Also termed (in all senses) spousal privilege; husband–wife privilege.

national-security privilege. See state-secrets privilege.

newsman’s privilege. See journalist’s privilege (1).

parliamentary privilege. 1. See legislative privilege under PRIVILEGE(1). 2. PRIVILEGE(5).

patient–physician privilege. See doctor–patient privilege.

peer-review privilege. A privilege that protects from disclosure the proceedings and reports of a medical facility’s peer-review committee, which reviews and oversees the patient care and medical services provided by the staff. [Cases: Witnesses 184(1). C.J.S. Witnesses § 297.]

physician–client privilege. See doctor–patient privilege.

political-vote privilege. A privilege to protect from compulsory disclosure a vote cast in an election by secret ballot.

priest–penitent privilege. The privilege barring a clergy member from testifying about a confessor’s communications. — Also termed clergyman–penitent privilege. [Cases: Witnesses 215. C.J.S. Witnesses §§ 359–360.]

privacy privilege. A defendant’s right not to disclose private information unless the plaintiff can show that (1) the information is directly relevant to the case, and (2) the plaintiff’s need for the information outweighs the defendant’s need for nondisclosure. • This privilege is recognized in California but in few other jurisdictions.

privilege against adverse spousal testimony. See marital privilege (2).

privilege against self-incrimination. Criminal law. 1. RIGHT AGAINST SELF-INCRIMINATION. 2. A criminal defendant’s right not to be asked any questions by the judge or prosecution unless the defendant chooses to testify. — Also termed right not to be questioned.

“According to the rule, neither the judge nor the prosecution is entitled at any stage to question the accused unless he chooses to give evidence…. This rule may be called the accused’s right not to be questioned; in America it is termed the privilege against self-incrimination. The latter expression is more apt as the name for another rule, the privilege of any witness to refuse to answer an incriminating question; this is different from the rule under discussion, which, applying only to persons accused of crime, prevents the question from being asked. The person charged with crime has not merely the liberty to refuse to answer a question incriminating himself; he is freed even from the embarrassment of being asked the question.” Glanville Williams, The Proof of Guilt 37–38 (3d ed. 1963).

psychotherapist–patient privilege. A privilege that a person can invoke to prevent the disclosure of a confidential communication made in the course of diagnosis or treatment of a mental or emotional condition by or at the direction of a psychotherapist. • The privilege can be overcome under certain conditions, as when the examination is ordered by a court. — Also termed psychotherapist–client privilege. [Cases: Witnesses 214.5. C.J.S. Witnesses §§ 342, 349.]

reporter’s privilege. See journalist’s privilege (1).

self-critical-analysis privilege. A privilege protecting individuals and entities from divulging the results of candid assessments of their compliance with laws and regulations, to the extent that the assessments are internal, the results were intended from the outset to be confidential, and the information is of a type that would be curtailed if it were forced to be disclosed. • This privilege is founded on the public policy that it is beneficial to permit individuals and entities to confidentially evaluate their compliance with the law, so that they will monitor and improve their compliance with it. — Also termed self-policing privilege; self-evaluation privilege. [Cases: Witnesses 184(1). C.J.S. Witnesses § 297.]

spousal privilege. See marital privilege.

state-secrets privilege. A privilege that the government may invoke against the discovery of a material that, if divulged, could compromise national security. — Also termed national-security privilege. [Cases: Witnesses 216(1). C.J.S. Witnesses §§ 361–364, 366–367.]

tax-return privilege. A privilege to refuse to divulge the contents of a tax return or certain related documents. • The privilege is founded on the public policy of encouraging honest tax returns.

4. Civil law. A creditor’s right, arising from the nature of the debt, to priority over the debtor’s other creditors. 5. Parliamentary law. The status of a motion as outranking other business because of its relationship to the meeting’s or a member’s rights. — Also termed parliamentary privilege. See question of privilege under QUESTION(3).

general privilege. A privilege that concerns the deliberative assembly as a body, rather than any particular member or members. — Also termed privilege of the assembly; privilege of the house. Cf. personal privilege.

parliamentary privilege. 1. A privilege under parliamentary law. 2. See legislative privilege under PRIVILEGE(1).

personal privilege. A privilege that concerns an individual member or members (e.g., a member’s reputation or physical ability to hear the proceedings) rather than the deliberative assembly generally. — Also termed special privilege. See procedural point under POINT. Cf. general privilege.

privilege of the assembly. See general privilege.

privilege of the floor. Parliamentary law. (usu. pl.) The right of entering, passing through, and sitting on the floor during a meeting. See FLOOR(1).

“The expression ‘privileges of the floor,’ sometimes used in legislative bodies or conventions, has nothing to do with having the floor, but means merely that a person is permitted to enter the hall. It carries no right to speak or any other right of membership, except as may be determined by rules or action of the body.” Henry M. Robert, Robert’s Rules of Order Newly Revised§ 3, at 28 n. (10th ed. 2000).

privilege of the house. See general privilege.

special privilege. See personal privilege.

[Blacks Law 8th]