How Many Privileges Are There?
Most of the Federal Rules of Evidence were drafted by an Advisory Committee of lawyers and academics. The notable exception is Rule 501, which governs privilege in federal court.
What is a privilege? As used today, a privilege is a legal right to refuse to disclose certain evidence to a judge or jury. A privilege is an exception to the general rule that “the public has a right to every man’s evidence.” Dean Wigmore referred to all modern privileges as “testimonial privileges” or “privilege proper” to distinguish them from viatorial privileges. [1] What’s a viatorial privilege? The right not to bother showing up to testify at all.
Unlike the other rules of evidence, Rule 501 was actually drafted by the United States Congress itself. Why did Congress draft its own rule of evidence? A combination of overreach and Watergate.
The Advisory Committee originally prepared thirteen proposed rules concerning privilege, numbered 501 – 513. [2] These rules identified specific privileges, made clear that no other ones were allowed, and explained how the privileges were to be applied at trial. Not all of the proposed rules were a model of clarity, but they did reduce a law library’s worth of privilege holdings and evidence treatises down to a short set of rules.
But these proposals landed in a Congress dealing with unprecedented invocations of executive privilege by the Nixon administration. The draft rules also rejected state law privileges even in diversity cases and eliminated certain broadly accepted privileges like spousal communication privilege. As a consequence, the draft privilege rules were extremely contentious – according to one witness over half of the complaints received concerning the proposed Rules of Evidence concerned privilege. [3] This was a bit of a disaster and Congress almost scrapped the entire Rules of Evidence project because of it. [4]
But instead, Congress elected to discard the Advisory Committee privilege recommendations and draft Rule 501 – which reads less like a Rule of Evidence and more a vague gesture in the direction of a law library:
The common law — as interpreted by United States courts in the light of reason and experience — governs a claim of privilege unless any of the following provides otherwise:
the United States Constitution;
a federal statute; or
rules prescribed by the Supreme Court.
But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.
Thus, a noble effort to name and number the privileges failed.
So, in the wreckage of that failure, how many privileges are there today? It’s hard to say with certainty, but potentially enough to fill up that law library. What follows are the privileges you are most likely to come across.
In addition to federal privileges emerging from “the light of reason and experience,” every state recognizes at least some privileges of their own, which apply in state proceedings and federal diversity cases. But the states vary tremendously in the number, scope, and clarity of recognized privileges. Some states, like Texas, essentially adopted the rejected Advisory Committee proposals.[5] Others, like California, have broader statutory rules. [6] But for many states, the privileges can only be discerned by reference to caselaw and a hodge-podge of ad-hoc statutory additions and subtractions. What’s out there tends to fall into four broad categories.
1. The Nine Major Privileges
The draft federal rules of evidence recognized nine privileges emerging from the common law. While the rules themselves were rejected, various formulations of these privileges are frequently upheld by courts.
Required Reports
Lawyer-Client Privilege
Patient’s Privilege
Family Privilege
Penitent Privilege
Voter Privilege
Trade Secret Privilege
Governmental Privileges
Identity of Informer Privilege
In addition, the draft rules recognized attorney work product protection, which operates much like a “privilege” but may or may not be technically a “privilege” depending on whom you ask. [7]
A few notes on the list above. The somewhat nebulous term “Required Reports” applies to mandatory disclosures made to the government pursuant to statute. You can find traces of this privilege in odd statutory privileges like Auto Accident Report Privilege (recognized to a limited extent in Florida), [8] Unemployment Compensation Information Privilege (recognized in Ohio)[9] and Veterans Affairs Quality Assurance Information Privilege (covering certain submissions to the VA).
What the draft rules called “Family Privilege” is normally known as spousal testimonial privilege. It prohibited married folks from testifying against each other in criminal cases. This is much narrower than the spousal communication privilege recognized in many states today.
The Governmental Privileges encompassed not merely “state secrets,” which are largely protected today, but also a broader category of “official information” that many in Congress balked at giving carte blanche protection. However, a version of this broader privilege is recognized in some states, such as California, and traces of it show up in “self-critical analysis” privilege that is sometimes invoked (with varying degrees of success) to shield things like internal police reports. [10]
2. Other Major Privileges
One controversy concerning the draft privilege rules was that they omitted other common privileges, which exist in some form or fashion in many (but not all) states. In addition, there are critical constitutional privileges not specifically incorporated into the evidentiary rules. The most common of these other major privileges are:
Fifth Amendment Privilege
Executive Privilege
Journalist’s Privilege
Accountant-Client Privilege
Parent-Child Privilege
Spousal Communication Privilege
Social Worker / Caseworker / Counselor / Therapist Privilege
With the exception of fifth amendment [11] and executive privileges, the contours of these privileges are highly venue and claim specific. For example, the journalist’s privilege was rejected by the United States Supreme Court in 1972 [12] but has subsequently been adopted (to differing degrees) by statute in almost every state. [13]
And while the general concept that communications by victims of a crime to specialists assisting those victims should be privileged has widespread acceptance, the particular individuals covered by the privilege vary wildly. For example, California privileges communications with Psychotherapists, Sexual Assault Counselors, Domestic Violence Counselors, and Human Trafficking Caseworkers. In contrast, Texas only privileges communications with doctors, professionals “licensed in the diagnosis, evaluation, or treatment of any mental or emotional disorder,” and persons involved in “treatment or examination of drug abusers.”
3. Additional Privileges That Sometimes Apply
In addition to the common state law privileges, there are other, more uncommon privileges that appear in a minority of states or arise under other federal statutes or treaties.
Arbitration / Mediation Privilege
Bank Examiner-Bank Privilege
Consular Officer Privilege
Medical Peer Review Privilege
Self-Critical Analysis Privilege
Adoption Record Privilege
On a conceptual level, these privileges arise in situations where there is both a strong policy interest in candor and a real threat of litigation.
4. Additional Privileges That Generally Do Not Work (But You Can Try!)
Finally, in addition to the major and minor privileges that are recognized in at least some jurisdictions, there are privileges that have been repeatedly, but largely unsuccessfully, asserted. Many have some intellectual purchase, either because they are recognized in foreign countries or because they resemble other privileges.
Banker-Client Privilege
Social Science Research Privilege
Union-Union Member Privilege
Academic Tenure Privilege
What can we take away from this? Obviously, privilege law is a bit of a mess. It was enough of a mess in 1970 that the Advisory Committee tried unsuccessfully to start over from scratch. And fifty years of development has led to more, not fewer, differences between the privileges recognized in courts across America.
But the practical upside is that you need to know your jurisdiction and consider all of the consequences of a choice of law. When you find yourself trying claims under the laws of an unfamiliar state, that does not mean simply reviewing the relevant elements of the claim. It also means considering the dog’s breakfast of privileges that come attached to that law.
[1] See John Henry Wigmore, Select Cases on the Law of Evidence, p. 822 [1913].
[2] Notes of Committee on the Judiciary, House Report No. 93–650.
[3] Edward J. Imwinkelried, Draft Article V of the Federal Rules of Evidence on Privileges, One of the Most Influential Pieces of Legislation Never Enacted: The Strength of the Ingroup Loyalty of the Federal Judiciary, 58 Ala. L. Rev. 41, 51 (2006) (“The very first witness in the Senate hearings was Representative Hungate. On the one hand, he informed the Senate Committee that ‘50 percent of the complaints in our committee related to the section on privileges.’”).
[4] Kenneth S. Broun, Giving Codification a Second Chance—Testimonial Privileges and the Federal Rules of Evidence, 53 Hastings L.J. 769, 769 (2002) (“The testimonial privilege rules in the Proposed Rules of Evidence almost doomed the total project. The presence of those rules became a rallying point for general opposition to the entire proposal .”).
[5] See Tex. Rules. Evid. §§ 501-513.
[6] See Cal. Evid. Code §§ 900 – 1070.
[7] See e.g., Blattman v. Scaramellino, 891 F.3d 1, 3 (1st Cir. 2018) (“For precision, we will use the term ‘work-product protection,’ because although some writers refer to a work-product ‘privilege,’ the protection encompasses both a limited immunity from discovery and a qualified evidentiary privilege”).
[8] See Florida Statute § 316.066(4).
[9] See Ohio Rev. Code § 4141.211.
[10] See, generally, Josh Jones, Behind the Shield? Law Enforcement Agencies and the Self-Critical Analysis Privilege, 60 Wash. & Lee L. Rev. 1609 (2003)
[11] While often touted as a cornerstone of a free society, the history of the fifth amendment is anything but clear. Professor Langbein dates its origins to work of defense counsel in the late 18th and early 19th centuries. See John Langbein, The Historical Origins of the Privilege Against Self-Incrimination at Common Law, 92 Mich. L. Rev. 1047, 1048 (1994). The motivations for this privilege and the path it took to the Bill of Rights is a complex and tangled story. See R. H. Helmholz, et al. The Privilege Against Self Incrimination: Its Origins and Development (U.Chicago Press 1997).
[12 Branzburg v. Hayes, 408 U.S. 665 (1972).
[13] The Reporters Committee for Freedom of the Press publishes a survey of the journalist shield laws in each state and each Circuit. See https://www.rcfp.org/reporters-privilege/
