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What Are Privileged Communications in Court? | Explore Law Firms and Legal Advice

Some conversations are protected even within courtrooms.

Privileged communications are conversations between two people within a relationship that the law protects from being disclosed on the witness stand.

Privileged communications can include things that a client tells an attorney and even extend to other relationships.

Here’s what to know about this legal term and how it impacts court proceedings.

What Are Privileged Communications in Court?

The oldest privilege in court is the attorney-client privilege.

This includes conversations between an attorney and client regarding legal advice, which cannot be disclosed without the client’s consent.

“Anything in that conversation is confidential,” says Kathryn Liss, executive director of the Schiller DuCanto & Fleck Family Law Center in Illinois, and assistant dean and director of Law Career Services at DePaul University.

This does not apply to meeting a friend who happens to be a lawyer for drinks, she notes. “You’d have to be working in your official capacity as their attorney and not as the person’s friend.”

Likewise, if you are somewhere in public, the attorney-client privilege may not apply. “If you’re at a networking event or a reception where there are other people and it’s public, then that is an exception,” Liss says.

“The attorney-client privilege has been a cornerstone in the American legal system for more than two centuries, protecting the confidentiality of communications between lawyers and their clients,” says the American Bar Association. “In the criminal justice context, the privilege is necessary to help ensure the effective assistance of counsel as guaranteed by the Sixth Amendment.”

What Is Spousal Privilege?

Other protected communications might include conversations between spouses.

“Spousal privilege is an umbrella term that is comprised of two separate rules of evidence: the spousal communication privilege and the spousal testimonial privilege,” said Lynn S. Muster, visiting professor of practice at New England Law Boston, in an email. “The spousal communication privilege provides that, in a court proceeding, a spouse may refuse to disclose, or prevent their spouse from disclosing, any confidential communications between those spouses.”

Marital privilege applies to conversations taking place during a legal marriage and in confidence between the couple.

“I explain this rule to students as follows: There is a third party in this marriage, and that third party is the court, which thinks it is the better public policy to keep conversations between spouses private and out of the courtroom, irrespective of what a particular spouse desires to do,” Muster said.

This rule may not apply, however, if the conversation doesn’t take place in a privileged setting. For example, if a husband and wife are talking in a coffee shop and someone overhears it, that third person can testify to the conversation.

“A common misconception is that the privilege applies even when the conversation has been disclosed to others, and that is simply not true,” Muster said.

Spousal testimonial privilege means a spouse can’t be made to testify against their spouse in a criminal case if they are still married. A spouse may voluntarily testify against a defendant spouse in most jurisdictions, Muster said.

What Are Other Types of Privileged Relationships?

State laws can define privileged communications in different ways.

Additional examples of privileged communications may include conversations between a doctor and patient, or clergy and a member of the congregation. These are both situations where a person may expect their words will not be shared.

When it comes to clergy, not everyone who works at a church or temple can expect to have their communications fall under this privilege. A Sunday school teacher or church receptionist, for example, are not considered clergy when it comes to privileged communications.

Also, this privilege may not cover situations in which an individual shares something that would impact public safety, such as disclosing that they are imminently planning a crime.

In Illinois, for example, Liss says, a clergy or practitioner of any religious denomination has a duty to report any incident where they believe a child might be harmed or has been harmed.

Sarah Goldberg
Sarah Goldberg

Sarah is a seasoned financial market expert with a decade of experience. She's known for her analytical skills, attention to detail, and ability to communicate complex financial concepts. She holds a Bachelor's degree in Finance, is a licensed financial advisor, and enjoys reading and traveling in her free time.

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