LoE Project Privileged Communications - Research Paper Example

LoE Project Privileged Communications The paper describes the importance of Law of Evidence (LoE) in legal proceedings in accordance with which, fair and effective decision can be made in relation to criminal cases. In this respect, LoE signifies those facts or evidences that are important for revealing the truth of legal cases and therefore ensures the appropriate and fair conduct of legal proceedings. Additionally, there are certain privileges that are offered to individuals in order to maintain confidentiality of the information communicated amid two individuals in pursuit to protect their personal as well as social interests. Table of Contents Abstract 2 Table of Contents 3 Introduction 4 Discussion 4 Conclusion 9 References 10 Introduction Law of Evidence (LoE) implies the rules along with the regulations that are used in legal proceedings in order to segregate the ‘proof of facts’. The rules signify the evidences that will or will not be considered as proof of facts in the legal decisions. LoE also implies the weightage that are to be provided to the fact as evidence. It also aids in ascertaining evidence based on quantum, sort of proof and quality that will be relevant in the legal proceeding. Provisions of LoE include a key notion to be effective, which can be identified as privileged communication, signifying the legal right offered to an individual. Accordingly, assuring this legal right individuals are restrained from their liability of providing testimony on matters of legal issues in courts that might affect his or her personal along with social interests. Additionally, privileged communication aids in safeguarding personal relationship, legal rights along with social interests that might be attached with a legal issue (The Law Commission, 1994). In this regard, the research paper emphasizes the various rules associated with privileged communications. The paper will also discuss the public policy that is associated with different privileges. Discussion In legal proceeding, LoE plays an effective role in providing proof of fact that is relevant in revealing the truth of any legal issue. Evidences are considered as important for making legal decisions in relation to legal cases in a truthful and fair manner, preserving adequate degree of clarity in the judgement process. Moreover, LoE assists in reflecting the evidence of proof depicting contains of a legal case in a truthful way for effective decision-making, which can be explained with reference to the notion of privileged communication. In definitive terms, privileged communication is determined as the right that is legally recognised and on the basis of which, individuals are provided with the opportunity of communicating information in relation to a legal issue and expect that such fact might be kept confidential. This right assists individuals in maintaining confidentiality of certain facts in order to protect their relationship in the social context. In this regard, privileged communication aids in protecting the social interest of individuals from disclosing complete facts in relevance to the case in hand. According to the privileged communication rule, individuals are offered with the opportunity of refusing to disclose certain information or informant identify on the grounds of protecting the social relationship. Contextually, the rationale in relation to privileged communication implies that individuals possess confidential relations on the ground of public policy. In accordance with this public policy, individuals might not be compelled or in certain instances might not allow other individuals to infringe the confidence that has been reposed. Subsequently, privileged communication is not regarded as substantive law but rather as an evidence rule that might not affect the competency of witnesses but renders the responsibility of testifying not to reveal certain facts under the privilege rule (Ingram, 2011). In accordance, the various evidentiary rules that are to be considered in the privileged communication rule are provided hereunder. All privileged communication are hearsay Statement must be relevant Statements are admitted into evidence only if covered by an exception to the Hearsay Rule If the privileged communication is in writing: Must authentic the document Must satisfy rules on admiring contents of documents Source: (Hails, 2011) The aforementioned evidentiary rules must be considered in privileged communication with the aim of ensuring that legal proceedings are conducted in a legitimate as well as fair manner. In privileged communication, there is only one exception and that applies in situation where a judge signifies that a privilege of trail witness is not applicable or incorrectly ruled and subsequently, the witness is required to testify. Under similar circumstances, such privilege is not identified as waived. It is worth mentioning in his context that there are certain relationships where the rule of privileged communication is applicable, which include attorney-client relationship, physician-patient relationship, husband-wife relationship and clergy-penitent relationship. Additionally, there are certain requirements on the basis of which, privileged communication is applicable in all situations. First, the exchange of communication should be among two people having recognised relationship under the law Second, there should an exchange of communication due to the confidential nature of relationship that exists amid two individuals under the law Third, the exchange of communication is regarded as beneficial towards the societal interest by revealing it rather than keeping it as secret (Mosk & Ginsburg, 2013; Ingram, 2011) To gain a better insight to the subject matter, the public policy in relation to various privileges is discussed hereunder. Attorney-Client Privilege The attorney-client privilege is an oldest privileged communication, also identified as a statute in common law. The privilege is applicable on the basis of certain requirements stating that the privilege holder is a client, the communication is made to a court member or a lawyer, the communication comprises facts and the privilege has been provided on client’s claim. The objective of the privilege is to ensure that there is effective communication of facts in relation to a specific case for effective legal proceedings. Likewise, according to the privilege, the communication made among attorney and client is protected from the disclosure of such communication along with protecting the client from being compelled to disclose such communication during legal proceeding. The rule in relation to the privilege implies that “client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client” (Poppe et al., n.d.). The privilege is applicable only in case of exchange of information that is related to legal services. In criminal case, there is an exception to the privilege where the opinion of the attorney is to protect an individual from committing crime and from escaping punishment (Hails, 2011). Husband-Wife Privilege Husband-wife privilege is applicable to the spouse for not disclosing any information during testification. In this regard, there are two privileges offered to the spouse, signifying that they must not disclose confidential communication exchanged at the time of marriage. Additionally, confidential communication must not be disclosed in the court at the time of testification. Valid marriage is considered as an important factor for providing the privilege to spouse. The marriage must be recognised under common law and the privileged is applicable to parties are covered under common-law marriage. In this regard, both the husband and wife are provided with the privilege. However, there are certain exceptions that are regarded mostly in criminal cases, which include criminal offences committed by one spouse against another or to either spouse’s children. Additionally, the exception is applicable when a spouse fails in providing adequate assistance to the other spouse or children and in case of bigamy (Hails, 2011). Physician-Patient Privilege According to the physician-patient privilege, the information in relation to the patients is disclosed fully so that the physician is able to provide adequate care along with treatment on the basis of patients’ conditions. In this context, the information in relation to the patients’ conditions and information should be kept confidential by the physician with the aim of protecting the privacy interests of patients. In this regard, the information that is obtained from the patient by physicians for diagnosis along with treatment is to be kept confidential in accordance with this privilege. The privilege is mainly offered to the patients emphasising the basis requirement of the privilege wherein the physician is required to possess appropriate license to conduct the medical practices. There are certain exceptions on the basis of which, the privilege can be waived in cases where medical advices are sought for concealing criminal offence and for planning crime and information obtained by physician in order to report to authorities. The privilege also assists the patients in protecting their personal as well as social interests from unprotected confidential medical information delivered by physicians to the public (Hails, 2011). Clergy-Penitent Privilege Clergy-penitent privilege implies the right towards privileged communication based on which a penitent might prevent clergy from revealing information that disclosed by a penitent. The privilege aids in keeping spiritual guidance communication confidential among penitent and clergy. In this regard, both the clergy along with the penitent are provided with the privilege. In this privilege, there is no exception but clergy is required to report in case of child abuse (Hails, 2011). Conclusion It can be comprehended from the foregoing discussion that LoE plays an effective role in assuring the legal proceedings are conducted in a fair manner with appropriate evidences principally because it assists in ascertaining the quantum along with quality of evidence that will be suitable for conducting legal proceedings effectively. Contextually, privileged communication is an important aspect of LoE, which augments clarity and fairness in assuring legal rights to individuals in restricting another individual from revealing confidential information in order to safeguard their personal and social interest. According to the public policy, individuals are not compelled to or restrict another individual to disclose confidential communication. There are different privileges majorly including attorney-client privilege, physician-patient privilege, husband-wife privilege and clergy-penitent privilege that are offered in order to protect the personal as well as social relationship of the witnesses. References Hails, J. (2011). Criminal Evidence. United States of America: Cengage Learning. Ingram, J. L. (2011). Criminal Evidence. United States of America: Elsevier. Mosk, R. M., & Ginsburg, T. (2013). Evidentiary Privileges in International Arbitration. International and Comparative Law Quarterly, 5(2), 345-385. Poppe, J., Popov, C. V., & Tankersley, A. (n.d.). An overview of the attorney-client privilege and common privilege issues. Retrieved from http://www.velaw.com/uploadedFiles/VEsite/Resources/PoppePopovTankersleyAttorneyClientPrivilegeCommonPrivilegeIssues.pdf The Law Commission. (1994). Evidence Law: Privilege. Preliminary Paper No 23, 1-270. Read More