In some situations, your conversations will be considered confidential. This means that you can’t be compelled to disclose what was said during the conversation in court.

The law protects communication, either oral or written, between:

  • Spouses
  • An attorney and client
  • A doctor and patient
  • A religious advisor and advisee (or priest-penitent)

When Is Spousal Communication Privileged?

The law protects the substance of the communication between spouses in different ways. First, communication between spouses is considered privileged and so courts cannot compel the disclosure of spousal conversations made in privacy. Second, spouses can be considered incompetent to testify for or against the other spouse in a trial. Also, a spouse called as a witness against the other spouse may refuse to testify. In some cases, a spouse may prevent the other spouse from testifying against him/her. In states which recognize same-sex marriage, the privilege will apply to married same-sex couples.

When Is Attorney-Client Communication Privileged?

The attorney-client privilege is one of the stronger privileges. Generally, a client has a privilege to refuse to disclose and to prevent the attorney from disclosing confidential communications made for the purpose of obtaining legal services to the client. This includes the attorney’s notes and legal strategies.

The privilege extends to those who aid the attorney in helping the client. Associate attorneys, partners, secretaries, paralegals, and translators cannot be compelled to testify against the client they represent. This privilege does not include communications made to further crime or fraud.

When Is Doctor-Patient Communication Privileged?

Doctors cannot disclose patient information, including medical history and conditions. This includes the doctor’s observations and opinions. This privilege extends to psychotherapists who treat a patient’s mental conditions.

When Is Priest-Penitent Communication Privileged?

Also known as the clergy-penitent privilege, this privilege covers communications made in confidence by a person seeking spiritual advice from a member of the clergy. The penitent must reasonably believe that the communication with the priest is confidential. Unlike the other privileges, this privilege can extend to group counseling sessions, depending on the jurisdiction. Although the name of the privilege refers to a priest or clergy member, the privilege includes all religious advisors, including ministers, rabbis, sensei, imams, and lamas, among others.

When Are Confidential Communications Not Privileged?

Conversations are not considered privileged if someone overhears the private conversation. For example, the doctor-patient privilege doesn’t apply if made in the presence of a nurse.

The spousal privilege doesn’t apply if the conversation takes place in the presence of another relative, like a child (although some courts make an exception for very small children). In addition, spousal communication made within any jail or law enforcement building, even if you’re inside a private room, is not privileged. Marital communication is not privileged in suits between spouses, or when there is violent crime between husband and wife.

Can the Confidential Communication Be Waived?

Yes, although the person who controls the waiver will defer from privilege to privilege. In the professional privileges, the client/patient/penitent is typically the party with the power to waive the privilege.

With spousal privileges, it depends on where privilege is being asserted. In criminal cases, the witness spouse is typically the one with the power to waive the privilege (although there are some exceptions). In civil cases, both spouses must agree to waive the privilege.

Seeking Legal Help

If you are involved in a legal issue involving a conversation that you believe may be privileged, you should speak with an experienced criminal attorney to ensure that your rights are protected.