Privileges: Spousal, Attorney-Client, and Priest-Penitent

Even relevant, highly reliable evidence may not be the proper subject of either discovery or proof, because it is protected by a privilege. Some privileges have been recognized by the federal courts as being constitutionally mandated. Some, such as the tax practitioner privilege of I.R.C. § 7525, are statutory. Otherwise, when federal substantive law applies, Fed. R. Evid. 501 provides that privileges will be governed by the "principles of the common law" as interpreted by the federal courts "in the light of reason and experience." Privileges fall into two categories: those that protect only confidential communications made within the context of a particular type of relationship and those that protect even non-confidential information. Among the first are the attorney-client privilege and the husband-wife confidential communications privilege. Among the second are the husband-wife "spousal immunity" or "anti-marital facts" privilege and the privilege against self-incrimination. Generally, privileges have been recognized in order to encourage certain types of communications or relationships, the importance of which is considered greater in the aggregate for the promotion of justice, public health, and social stability than is the cost of excluding important evidence in particular cases. For example, the attorney-client privilege is believed to enable full and frank discussions between attorney and client, which will enhance the likelihood that the client receives adequate representation; the psychotherapist-patient privilege is believed to encourage mentally ill persons to seek psychiatric care; the husband-wife privileges are believed to shore up the institution of marriage.