Privileged Communication - Essay Example

Introduction

A privileged communication is a legal rule that provides protection to communications within specific relationships from disclosure in a court case. The only privilege stipulated in the U.S. Constitution is the privilege against self-incrimination provided in the Fifth Amendment. This privilege requires that the government should not compel an individual to provide evidence from his own mouth, but conduct independent investigation to get the evidence (Zaman, 2000). This research paper will examine four other traditional privileged communications that may not be used as evidence to incriminate the person who made the communication in court. They include: the attorney-client privilege, the husband-wife privilege, the physician-patient client, and parent-child privilege. The paper will discuss the four exemptions and explain the reasons for their existence, and agree or disagree whether each communication should continue to be granted privilege.

The Attorney-Client Privilege

The Attorney-client communication privilege involves the privilege protects communication between an attorney and his client from being used to incriminate the client in court. This exemption exists for the purpose of encouraging full and open communications between attorneys and their clients in preparations for a court case (Brown, Jr.,2006). Therefore, it promotes the general public interests regarding the administration of justice and application of the law. In the United States, several states have statutes that regulate attorney-client privilege; but other states without such statutes, and the federal government, use common law principles instead of the privilege of attorney-client communication.

There are certain requirements that must be fulfilled to enjoy the attorney-client privilege. First, the client must professional legal services from an attorney and shows an intention to establish an attorney-client relationship. Ordinary communication between a client and an attorney without the intention to seek a professional legal service does not create an attorney-client relationship for the purpose of an attorney-client communication exemption (Brown, Jr., 2006). Secondly, the communication made between a client and an attorney should be confidential. However, the court may not consider communications unprivileged due to the presence of an employee in an attorney’s office during a conference, as long as the attorney-client relationship was established.

There are certain limits to the attorney-client privilege. For instance, the attorney-client privilege does not apply when a client makes disclosures about future wrongdoing (Brown, Jr., 2006). It does not also apply to physical evidence. For court purposes, the attorney has an ethical and legal responsibility to provide physical evidence to law enforcement agencies such as the police. As a general rule, this privilege does not protect the client’s name and identity or amount of fee charged by the attorney.

The attorney-client communication should continue to be accorded privilege because it supports public interest. Denying the client this protection provides privileged information to the government rather than the client (Brown, 2006). According to Brown, the viability of the attorney-client privilege is at risk because it is undergoing erosion in the current U.S. judicial system caused by the compelled-voluntary waiver. This waiver seeks to compel the disclosure of materials held by attorney. This disclosure would surely undermine the confidentiality of information obtained through the attorney-client communication. If the attorney-client communication privilege is upheld, the public is likely to enjoy confidentiality and become confident in their attorney-client relationships; thus promoting the justice and fairness in the judicial system of the United States.

The Husband-Wife Privilege

Sometimes a case may arise in court whereby someone may be required to give a testimony involving his or her spouse. Traditionally, the United States court system does not allow a spouse to be forced to testify against the other spouse. The federal government and all states of the United States have provisions for the husband-wife privilege (marital privilege). This exemption exists so that the information obtained from private communications involving a husband and wife cannot be used as evidence against one of the spouses in court; hence providing the spouse freedom of association.

There are certain requirements that should be fulfilled so that the husband-wife privilege can be applied in court. This type of privilege applies when the marital confidential communications involve private communications between spouses. It includes only words that are intended for communication with the other spouse, and not any other person. Furthermore, the communication between the spouses should have occurred within a period in which they are legally married under state law, and they are not separated permanently.

The husband-wife privilege also requires that the communication should have occurred in confidence, without the presence of a third party, and not intended to be extended to others. Furthermore, only the content needs to be protected, not the communication process. Another important exception to the husband-wife privilege is the partnership-in-crime exception. In this case, the husband-wife privilege is not used in a situation in which the husband and wife collaborate in crime. For example, the joint-criminal-participation may include a case of both spouses jointly growing marijuana, trafficking drugs or jointly executing tax evasion.

This privilege should continue being used in court because it promotes healthy confidential communication between husband and wife, and it protects the privacy and the rights of spouses to enjoy private and confidential communications. The use of husband-wife privilege in court also protects families from disintegrating. If the husband or wife is forced to testify against the other wife, the spouses may develop hatred between each other, leading to domestic differences and family disintegration. Moreover, the marital privilege builds trust among spouses; enhancing sincerity and accurate information needed in court to administer justice.

Parent-Child Privilege

Most courts in the United States have not recognized the parent-child privilege. There are only two courts that have recognized this type of privilege – one federal trial and one state appellate court. When applied, this privilege prevents the use of testimony involve parent-child communication in a court case (Farber, 2006). One of the reasons for the existence of this exemption is that it upholds societal values and familial privacy.

This type of privilege should continue in the American courts because it promotes effective administration of justice on families and governments. As a necessary form of societal value, parents usually promote strong parent-child relationships by spending time with their children and engaging in constant communications with them (Farber, 2006). If such communications were used as basis for providing testimony in court, families would break the close relationships they have with their children (Farber, 2006). As a result, children will not grow with good morals, and they may end up committing more crime and increasing the number of court cases. The court should not be an agent of poor parenting by preventing open communications between parents and their children.

Parent-child privileges prevent the government from forcing children to testify against their parents. If the children were to be allowed to testify against their parents, they would lose trust from their parents. In this regard, parents would not speak openly to their children about crucial issues that affect their lives (Farber, 2006). Such communication breakdowns cause families to crumble and societies in general to dysfunction, leading to decaying morals in society. Consequentially, court cases will be handling a lot of civil and criminal cases.

Farber (2010) suggests that parents contribute the largest part of a child’s socialization. If the child’s interaction with his or her parents is good, he or she will become a socially responsible person in future. If the parent-child relationship is weak due to poor communication, the child may develop deviant and socially irresponsible behaviors. Any legal system that fails to give parent-child relationship undermines the trust and confidence needed for the parent-child relationship (Zaman, 2000). If the parent is forced to testify against the child, the child may think that the parent is favoring the government to him or her, so he or she loses trust on the parent.

Currently, the information shared between a parent and a child in the United States is not protected from government intervention. For instance, parental presence and participation in the U.S. juvenile system are common. Parents are encouraged to advice their children and participate in juvenile case proceedings (Farber, 2006). Before police interrogation, parents advise their children whether to speak or not. In this case, the parents’ communication may be used to support the prosecution team; hence the child loses confidence and trust on his or her parents.

Parent-child communication privilege is an important way to improve the child’s behavior. The parents’ involvement in the decision making and actions of the child plays an important role in the child’s behavior. Therefore, the parent-child communication should be protected so that the child can learn positively from the parent and improve his or her behavior. The best way to change a child’s behavior is not imprisonment, but rehabilitation and counseling (Farber, 2006). If the parent is allowed to communicate with the child freely during the rehabilitation and counseling process, the child will be more willing to change than when the communication was interfered with by the government.

Parents play a crucial role in minimizing youth crime, punishing the youth, and rehabilitating them. They are the best people to guide the youth towards responsible citizenship (Farber, 2006). Therefore, parent-child communication should be protected to promote a strong parent-child relationship, family trust and confidence, reduced crime, and improved behavior among the youth.

The Physician-Patient Privilege

The physician-patient privilege exists only in states where it is provided by statutes because it did not exist at common law. Although this law is very limited, it plays a crucial role in physician-patient relationships. It exists to protect the interests of the patient in a legal case, not the physician. Therefore, it may be relinquished only by the patient or his representative. Different states interpret their statutes regarding the physician-patient privilege in different ways. After the death of the patient, the use of the privilege in court proceedings will depend on the court rulings and laws applicable to in the state.

For a physician-patient privilege to be used in court, the patient must have consulted the physician to receive treatment or diagnosis. If the patient consults a physician and the physician refers him or her to another physician, any communication made to any of the physician will also be protected under the physician-patient privilege (Mosk and Ginsburg, 2001). However, this privilege does not apply when a court, a prosecutor, or a law enforcement agency gives an order for the examination of a suspect or a defendant.

In State v. Poetschke, Appelant Denise M. Poetschke was charged of third degree driving while impaired (DWI). Poetschke was involved in an accident in 2006. The Police Officer responsible for the case noticed that her eyes were bloodshot and watery at the time of the accident. He carried out a breath test which the appellant failed. The appellant was injured and needed medical attention. The Police followed her to the hospital where he would take a blood sample for more investigation. However, the sample was not possible to extract because the patient’s veins had collapsed. Without the blood test, the Police Officer noted that the case would not continue.

A search warrant was issued to check the medical records of the appellant in the hospital, which showed that her alcohol concentration was high. Therefore, she was found guilty as charged by the district court. Poetschke appealed the case, arguing that the use of her medical records violated her physician-patient privilege (Forster, 2006). The Court of Appeal of Minnesota reversed the district court’s decision because the appellant had not waived her physician-patient privilege and the implied-consent statute does not overcome the physician-patient privilege.

The physician-patient privilege should not be used in court because it allows patients to act against the law and go without punishment. The physical condition of a patient should not protect the patient from crimes (Regan & Wright, 2006). The physicians and hospitals should use information from communications between physicians and patients as long as a search warrant is provided. This information will help the courts to obtain the relevant evidence needed to achieve justice in the legal system.

Conclusion

Several privileged communications in the United States should continue being used in courts, but others should not be used to achieve true justice. The attorney-client relationship should be used to promote confidence in attorney-client relationships. Husband wife privilege and parent-pupil privileges should also be applied in courts to improve family relationships, improve behaviors, and reduce crimes in the United States. However, the physician-client privilege should not be used in courts because it allows patients to get away with crime due to lack of sufficient evidence.

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According to Brown, the viability of the attorney-client privilege is at risk because it is undergoing erosion in the current U.S. judicial system caused by the compelled-voluntary waiver. This waiver seeks to compel the disclosure of materials held by attorney. This disclosure would surely undermine the confidentiality of information obtained through the attorney-client communication. If the attorney-client communication privilege is upheld, the public is likely to enjoy confidentiality and become confident in their attorney-client relationships; thus promoting the justice and fairness in the judicial system of the United States.

The Husband-Wife Privilege

Sometimes a case may arise in court whereby someone may be required to give a testimony involving his or her spouse. Traditionally, the United States court system does not allow a spouse to be forced to testify against the other spouse. The federal government and all states of the United States have provisions for the husband-wife privilege (marital privilege). This exemption exists so that the information obtained from private communications involving a husband and wife cannot be used as evidence against one of the spouses in court; hence providing the spouse freedom of association.

There are certain requirements that should be fulfilled so that the husband-wife privilege can be applied in court. This type of privilege applies when the marital confidential communications involve private communications between spouses. It includes only words that are intended for communication with the other spouse, and not any other person. Furthermore, the communication between the spouses should have occurred within a period in which they are legally married under state law, and they are not separated permanently.

The husband-wife privilege also requires that the communication should have occurred in confidence, without the presence of a third party, and not intended to be extended to others. Furthermore, only the content needs to be protected, not the communication process. Another important exception to the husband-wife privilege is the partnership-in-crime exception. In this case, the husband-wife privilege is not used in a situation in which the husband and wife collaborate in crime. For example, the joint-criminal-participation may include a case of both spouses jointly growing marijuana, trafficking drugs or jointly executing tax evasion.

This privilege should continue being used in court because it promotes healthy confidential communication between husband and wife, and it protects the privacy and the rights of spouses to enjoy private and confidential communications. The use of husband-wife privilege in court also protects families from disintegrating. If the husband or wife is forced to testify against the other wife, the spouses may develop hatred between each other, leading to domestic differences and family disintegration. Moreover, the marital privilege builds trust among spouses; enhancing sincerity and accurate information needed in court to administer justice.

Parent-Child Privilege

Most courts in the United States have not recognized the parent-child privilege. There are only two courts that have recognized this type of privilege – one federal trial and one state appellate court. When applied, this privilege prevents the use of testimony involve parent-child communication in a court case (Farber, 2006). One of the reasons for the existence of this exemption is that it upholds societal values and familial privacy.

This type of privilege should continue in the American courts because it promotes effective administration of justice on families and governments. As a necessary form of societal value, parents usually promote strong parent-child relationships by spending time with their children and engaging in constant communications with them (Farber, 2006). If such communications were used as basis for providing testimony in court, families would break the close relationships they have with their children (Farber, 2006). Read More