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Privileges that block others from testifying against you

The Miranda Rights are quiet explicit in acknowledging that the criminal defendant cannot be placed in a situation where he can incriminate himself by speaking without prior warning. But this is no means the only protection given to a defendant by law. The law has in force several privileges that prevent third parties from testifying against the defendant.

The general privileges that a defendant would enjoy

The court of law is an arena where many witnesses will be paraded, and their testimonials cross examined by the defense and the prosecution. The privilege (mooted by the defendant) creates an exception to that rule, denying a witness the opportunity to appear in court and use testimony that could hurt the defendant. The privilege is not a constitutionally guaranteed right, but it enables the defendant to raise an objection where he senses that a testimony cannot be permitted as it hinges on communications that were privy to confidentiality clauses. There are many different categories under which privileges are allowed by state and federal law.

These are the well-known privileges a defendant would enjoy:

Attorney-Client Privilege (also known as lawyer confidentiality)

This is easily one of the oldest privileges in Anglo American law and it recognizes the fact that whatever is shared between client and lawyer remains within the four walls of the lawyer’s office and will not be shared with any other person, at any time whatsoever. This is a protection given to the defendant for reposing his faith in the attorney and for sharing what could be termed as extremely confidential information. Moreover, the information may have a direct bearing to the case and the arguments made on behalf of the defendant in court. Without a privilege clause a client would be hesitant and fearful of speaking truthfully to his lawyer.

Physician-Patient Privilege (also known as medical confidentiality)

This is a privilege that extends to all communications, oral and written, exchanged between the patient and his attending physician that cater to a whole range of services that may have been provided to the defendant who was a patient undergoing medical care at the material time. By practice some jurisdictions extend the privilege in all cases – whether criminal or civil, but the federal laws accounting for evidence do not formally recognize this privilege. In some instances the Physician-Patient Privilege extends to and covers the practicing psychiatrist also, and such a practitioner is prevented from revealing confessions that the client could have made during therapy. In most states these privileges are not inviolable or absolute and getting a physician to reveal details might be more beneficial than keeping the communications tightly wrapped in privilege.

The Client Clergy Privilege (also known as pastoral confidentiality)

This is a privilege that is recognized under the federal rules of evidence, and is enjoyed by both the clergyperson and the defendant who shares intimate and confidential communications through confessional statements. Citing this, the defendant can ensure that a confession made to a priest cannot be tabled in court.

Spousal Privileges (also called the husband wife privilege)

It is critical to preserve and protect the confidentiality enjoyed between spouses as it would create a contentious situation destroying the very institution of marriage if one spouse were to be compelled to testify against his or her partner. For this reason this is a privilege which is recognized by both the federal and state laws of evidence. The problem arises when the need for recording testimony far outweighs the need to adhere to spousal privilege.

To address such a conflicting situation many states recognize the following sub privileges within the husband wife relationship:

• Spousal Testimonial Privilege (or marital privilege)

In such a scenario the husband wife pairing is viewed as a single unshakable legal entity, and one partner cannot be compelled to give testimony against the interests of the other partner in any criminal trial or if they are part of a grand jury proceeding. The privilege can be invoked by any partner provide that partner is still in the marital relationship at the material time, and this privilege has recognition in almost all states. This begs the question, what happens to the privilege if one spouse is accused of committing a crime against his partner? The answer is that such a situation creates an exception to spousal privilege. The same privilege also can’t be invoked if one of the partners is accused of human trafficking. The spousal privilege also does not preclude partners from speaking about matters pertaining to a time period before their marriage.

• Marital Communications Privilege

This is a privilege that bars either husband or wife from communicating personal and confidential details exchanged between the partners when they were married, and it is a privilege that extends beyond the marriage and applies equally to both criminal and civil cases. Any partner can invoke this privilege to prevent the other from breaching spousal confidentiality.

The consequences of waiving privileges

Defendants and defense lawyers need to be alert and extra vigilant to see to it that their privileges do not lapse uncontested. In fact they should be more assertive in moving privileges to prevent unwarranted testimonials from weakening their case. Privileges get waived automatically if the defendant fails to appeal or object to any testimony that is sourced from privileged information. The motion can work in reverse too. The defendant will lose a privilege if he knowingly or unknowingly shares information that is wrapped in confidentiality.

At inception nearly all such privileges were designed to preserve and protect the confidentiality attached to client-professional relationships. The privilege is almost universally recognized as being in the domain of the accused, but privileges can also create huddles in presenting evidence when the wheels of justice are to move. Therefore, every effort is made to ensure that a wider view of privileges is taken to restrict their area of operation within the narrowest of bandwidths.

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