Privilege Marks Status

Crime is bad. So prosecuting criminals is good. Prosecution requires evidence, mainly testimony. So we force witnesses to testify in court, without compensation. Testifying in court might be quite inconvenient for a witness, might subject him or her to retaliation, and might damage her relationships. Yet still we require it. Except:

A privilege is … rules excluding evidence that would be adverse to a fundamental principle or relationship if it were disclosed. The most common form is … attorney-client privilege. … The rationale is that clients ought to be able to communicate freely with their lawyers, in order to facilitate the proper functioning of the legal system. Other common forms include privilege against self-incrimination, without prejudice privilege (protecting communications made in the course of negotiations to settle a legal dispute), public interest privilege (formerly Crown privilege, protecting documents for which secrecy is necessary for the proper functioning of government), marital privilege, medical professional privilege, and clergy-penitent privilege. (more)

Reporters’ privilege … is the … right many jurisdictions by statutory law or judicial decision have given to journalists in protecting their confidential sources from discovery. (more)

The right to remain silent is … the right of … the defendant to refuse to comment or provide an answer when questioned. … Adverse comments or inferences cannot be made by the judge or jury regarding the refusal by a defendant to answer questions before or during a … legal proceeding. (more)

OK, if we want plea bargaining, we must privilege what is said in negotiations – who would negotiate otherwise? And I could understand an “important secret” privilege, for when the social costs of revealing a secret outweigh a crime’s harm. But it is hard to believe social harm is that large in typical privilege applications, or much larger than for unprivileged relations. (And no harm calculations are given for us to examine.)

For example, students would surely feel more comfortable talking to teachers who could never testify against them. But that hardly seems reason to prevent teachers from testifying against students. Friends and lovers prevented from testifying against each another should also feel closer. In fact, most any relation could gain by eliminating the threat of future legal testimony. But surely this isn’t reason to stop such testimony.

Eliminating privileges should increase the cost of being a criminal, and discourage more crime.  So why don’t we do that?  If legal privilege isn’t about crime or social harm from secrets exposed, what is it about?

Many people are horrified to learn of how ancient societies formally divided folks into classes, and limited what classes could wear. But we aren’t so different. I suspect most legal priviledge serves the same function as the common requirement for folks to dress “respectfully” in court – it raises the status of some relative to others. To mark our respect for married folk, lawyers, doctors, priests, reporters, and citizens in general, we give them special privileges, even if that costs us more crime.

Added 11Feb:  There is also a research privilege!

Certificates of Confidentiality are issued by the National Institutes of Health (NIH). … They allow the investigator and others who have access to research records to refuse to disclose identifying information on research participants in any civil, criminal, administrative, legislative, or other proceeding, whether at the federal, state, or local level. (more; HT Alex T.)

Really? We make it harder to catch criminals because otherwise researchers might find it harder to recruit criminals into their studies?

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  • Diana

    I’m a lawyer. Let me explain: attorney client privilege is not to keep secrets from being exposed, it is to persuade people not to lie to their attorneys.

    The mechanism that keeps secrets from being exposed is the court’s ability to order all documents, testimony etc. to be produced ONLY pursuant to an disclosure and protective order, i.e. they are produced only to the other parties to the litigation who have already agreed to keep them secret. Since all the other parties to the litigation are trying to get theirs (i.e. they want to get paid in some fashion, guaranteeing an incentive to keep the information they receive under wraps) or attorneys whose reputation rests on the ability to keep their clients’ secrets, does the convention of nondisclosure and protective orders keep crime and social harm from being exposed? Oh yeah.
    So you’re close, but you’re not quite there.

    Also people dress for court because court is theater. The people running the place know they’re running a show, and they dress for it — judges in this country wear robes, and in England they wear wigs. You don’t take millions of dollars from someone, or their kids, or their liberty, dressed for the golf outing you may well be going to right after this – you show respect, and you dress the party. There is nowhere on this planet where a good suit counts for more than in court.

    • What is the social value in preventing clients from lying to their lawyers? It is mainly the guilty who might lie, not the innocent, and such lies would make it harder to their lawyer to defend them well.

      Andy who exactly are we all showing respect to? Surely not the ordinary people who would prefer to dress in their ordinary way. So it seems it is the lawyers and judges to which the rest of us must kowtow.

      • Client Priviledge

        The dress code thing is an archaic remnant. It might even be looking out for defendants since in a jury trial they would be at a significant disadvantage without a shiny costume. Of course it would be ridiculous to pretend this would only happen in a jury trial and that judges are above such things.

        The attorney client priviledge actually lowers attorney status; if we had a society without it, attorneys who were themselves defendants would be at a significant advantage in cases as compared with non-legal-experts who were defendants in cases represented by a lawyer subject to compulsion.

      • Patrick

        Actually, it’s the jury that criminal defendants (and prosecutors) are dressing up for.

      • So you two are saying “you must respect” rules are really about paternalism, helping the poor ignorant folks who don’t realize it helps to try to impress your audiences? Gee, how very thoughtful of us.

      • Patrick

        I don’t see how it can be a paternalistic rule when it’s actually not a rule but a norm. There is no official dress code in most courtrooms, although a judge would likely not be amused by a lawyer strolling in wearing board shorts. There is no paternalistic rule to help ignorant folks who don’t realize it helps to try to impress your audience. As a descriptive matter, defendants dress up because they DO know it helps to try to impress their audience. Meanwhile, many lawyers actually dress DOWN for jury trials for the same reason.

      • Patrick, it apparently is a rule in Keene New Hampshire, where a man was jailed for wearing a hat in court.

    • richard silliker

      and i thought justice was blind. boy do i feel silly

  • Cyan

    The dead-man statute example isn’t on point. Your quoted text is about civil ligitation, not prosecution, and describes a prohibition on interested parties, not a case of privileged communication.

  • My off the cuff is that the spouse and clergy privilege are there to protect people who, many would regard as morally obligated to lie.

    Since, pergery is a crime then a priest and possibly a spouse must choose between being immoral or being a criminal

  • What is the social value in preventing clients from lying to their lawyers? It is mainly the guilty who might lie, not the innocent, and such lies would make it harder to their lawyer to defend them well.

    If people lie to their lawyers, the facts presented in cases will be more distorted than they already are, which will tend to produce worse legal outcomes. The effectiveness of the legal system depends on facts being presented accurately.

    Is this post supposed to be only about criminal cases? You talk about “crime,” “prosecuting criminals,” and “the guilty,” but evidentiary privileges apply in civil cases too.

  • Adverse comments or inferences cannot be made by the judge or jury regarding the refusal by a defendant to answer questions before or during a … legal proceeding.

    Before this rule existed, juries would be overly swayed by a prosecutor arguing that the defendant must be guilty because he would have testified otherwise. The inference is rational, but it shouldn’t have overwhelming importance.

  • Benjamin Barton (himself a law prof) argues that attorneys have more privilege than doctors because judges sympathize with attorneys.

    • JAMayes

      Almost certainly true. One of the clearest example I can think of is covenants not to compete. They’re not enforceable as to lawyers law because judges decided it was too important that a client be able to have the lawyer of his choosing. Want the heart surgeon or anesthetist of your choosing? Better hope they didn’t sign a restrictive covenant.

  • Karl, why should we go along with and assist their unreasonable moral “obligations”? Surely, for example, we wouldn’t go along with and assist folks thinking they had a moral obligation to kill folks who blaspheme their God. And why not exempt friends or co-workers on the same grounds?

    jaltoch, surely the facts now presented in cases are distorted as far as possible in order to get guilty defendants off. How could making defendant lawyers less informed allow them to achieve this goal more effectively? And how do we know juries are overly swayed by refusals to testify?

    • JL

      We can’t exempt friends, because then everybody is a friend and we will have no witnesses.

      And we exempt spouses and clergy, because we don’t want to fill our jails with clergy and spouses.

      Would you honestly want to jail the spouse who lied to protect her husband, and put their kids in an orphanage?

      Or consider the pastors who works with troubled inner city youth.
      They keep many kids off the street, but they also hear a lot of confessions.
      If they rat out the confessors, then their ministry will be severely compromised: the youth will see them as part of “the system” and keep away.
      So they won’t testify.

      Would you honestly want to put these pastors in jail?

  • JL

    Some of these exceptions will be more defensible than others, but I think medical and marital are surely watertight:

    -Even guilty criminals should be able to have access to medical care. We don’t want the fear of getting caught prevent this.

    -A spouse will probably lie to defend a guilty partner (who wants their spouse to go to jail?). If we would require spouses to testify under oath, then we would also need to prosecute them when they lie.

    And attorney-client privilege might not make much sense in a black-white world, where each crime is a murder.

    But consider unjust laws (e.g. current drug laws, treason laws protecting the British monarch before independence).
    Surely you would grant attorney-client privilege in these cases?

    But obviously laws aren’t classified into just and unjust laws.
    It’s just better to allow attorney-client in all cases.

  • Fnord

    Note that, for most cases types of privilege, non-disclosure is not optional. It’s not just that they can’t be compelled to disclose, they cannot disclose period. Unlike the relationships between friends or teacher/student, a lawyer, therapist, or physician is forbidden from sharing privileged details on pain of losing a (legal enforced) professional license. So a facile comparison is a little deceptive.

    You have something of a point about other kinds of privilege; certainly spousal privilege is not like that. Certainly that has some status connotations: a married couple is generally more respected than unmarried lovers, but it’s not exactly a special privileged class.

  • Oligopsony

    We have good reason to suspect that spouses and clergy will lie even if we coerce them otherwise. Further, you can’t just declare yourself a spouse or cleric; the state needs to recognize you as such. Since coercing people is expensive, not engaging in otiose coercion is good. If someone came up with the concept of confession today everyone would laugh, but there’s a pre-existing institution that the state doesn’t feel it has the power or willingness to break.

    Reporters (and researchers with confidentiality agreements, and so on – unless they don’t, do they?) have confidentiality because sometimes we want secrets getting out, even if the perpetrator doesn’t get caught, and those are the professions we charge with discovering such things.

    In no case that I can think of is the state interest in confidentiality based on fostering closeness between parties. Honesty, yes, but only honesty so that third parties can eventually find out. This doesn’t mean that status might not play a role – perhaps there are other groups that have a stronger claim to the above reasons than spouses/clergy or reporters/lawyers – just that there are clear non-status reasons for their exemption that don’t apply to friends, lovers, or teachers.

  • Just some prosecutor

    I see your point about doctors, lawyers and clergy. I doubt privileges concerning these professions would have developed if they weren’t high status.

    But isn’t the fact that we extend a privilege against self-incrimination to criminal defendants evidence against the theory? Defendants are not some special elevated class, quite the opposite.

    • Alan

      Privilege against being a witness against oneself? Isn’t there some document that designates this as a right rather than a privilege? And aren’t defendants in criminal cases presumed innocent–a special category–until proven guilty beyond a reasonable doubt?

  • JAMayes

    I’m a lawyer. First, there is no medical professional privilege in the United States. So, if this is about status, we’re collectively dumping on doctors. Not likely. Also, most people outside of the profession are ignorant of these rules,

    The attorney-client privilege is not really valuable to society, but it is very useful for lawyers. It would be difficult to “prepare” a witness for testimony effectively if the opposing counsel could just ask them what his lawyer told him. Many have criticized the privilege, including Thomas Jefferson, but lawyers are (and historically have been) the ones who generally write the laws in this area and the ones interpret them. Judges are generally lawyers. And lawyers are a very powerful interest group. Thus, the atty-clt privilege is not about status, it’s just something useful for a powerful interest group.

    The spousal privilege and the clergy privilege are both remnants from centuries-old English law. They were both based on religious beliefs (i.e., the husband and wife became “one flesh,” and speaking to “the lord” rather than a priest). Once those exceptions were in, there really isn’t any interet group motivated enough to repeal them, because it’s difficult to know how often, if ever, they result in a guilty person going free. And I doubt that it happens very often.

    The journalistic privilege is quite a recent policy invention, and it was lobbied for by the media because it is useful for them. They want sources to talk and to leak information without fear of exposure. The media is a very powerful interest group. Again, this is not about a collective status judgment.

    As for your counter examples. It’s hard to imagine that a teacher-student privilege would really be very useful to teachers, and to my knowledge, they’ve never lobbied for one. Teachers are quite a powerful interest group though, and I’ll bet if they ever pushed for it, they would get it. They just don’t have any reason to make the push.

  • noematic

    I’m a lawyer too, civil not criminal.

    Attorney-client privilege accrues primarily to the benefit of the client not the lawyer, in that it binds the lawyer from doing and saying certain things in relation to the client’s interests (and an unblemished client is a rare creature). It facilitates settlement/ resolution efficiencies being pursued and gained at an earlier time than would otherwise be possible. There’s usually a cost benefit to the client in this regard. There is no particular cost to the lawyer but the lawyer most benefits in terms of convenience.

    Absent attorney-client privilege and ‘without prejudice’ communications, may civil matters that might otherwise be settled on a commercial basis in confidential negotiations, would go to court, which is slow, public and expensive. There is a cost to the litigant and the public if the courts are slow, public and expensive, no particular cost to the lawyer (an obvious benefit would be further fees).

    So really, the privilege itself is to the benefit of the client, not the lawyer. The lawyer benefits in convenience from the privilege but I doubt this is a status raiser.

    • JAMayes

      I don’t follow how atty-clt aids early settlement. Atty-clt is separate from the settlement discussion privilege, which as you note and as Robin noted has a clear societal benefit.

      The client ultimately makes the call whether to settle. True, A lawyer’s advice about case value will be worse with less information, but if the client knows the hidden information, he can adjust the EV of continuing the suit appropriately. I don’t see atty-clt privilege as a significant factor in the timing of settlements. Clients usually lie to you about what they’re willing to pay/accept anyway.

      Also, atty-clt privilege directly benefits lawyers’ pocketbooks by allowing businesses to cloak business discussions in secrecy by invting the lawyers to the party (think Tobacco). Sure, the utility and secrecy benefit the clients too, but the clients aren’t the ones who advocated and lobbied for the rule. And it sure wasn’t “the public” who demanded an atty-clt privilege in order to reduce civil litigation and the resulting strain on the court system.

      • Nathan_M

        The client ultimately makes the call whether to settle. True, A lawyer’s advice about case value will be worse with less information, but if the client knows the hidden information, he can adjust the EV of continuing the suit appropriately. I don’t see atty-clt privilege as a significant factor in the timing of settlements.

        This might be true for some very sophisticated clients, but in general it is not true. Clients generally are not very capable of predicting what courts will do and are usually not capable of calculating the EV of a lawsuit.

        At least in my experience, in many cases one or both of the parties has an entirely unrealistic view of what the likely outcome is. If the case is to settle, their lawyer has convince them of the actual value of the case. This would not be possible without privilege.

        Clients usually lie to you about what they’re willing to pay/accept anyway.

        Do you ask clients this? I never would, until during negotiations when it is time to either settle a matter or not. I thought this was by far the most common practice.

      • noematic

        You can’t properly advise your clients as to liability, prospects and likely settlement amount until you have sufficient information. In most cases, clients have some information that is against the interests – to advise them, you need to know this; they need to know they can tell you without it being an issue. The earlier you know, the earlier you can commence settlement negotiations or establish another settlement strategy. Even lawyers can’t always predict outcomes accurately – especially at hearing. Clients, sophisticated or otherwise, are less able to do so and have a limited understanding of the nuances of court behavior (eg discount on costs incurred, how ‘activist’ certain judges may be).

        Clients change their willingness to pay as the situation changes – surely this is no revelation. I’d be more concerned if they refused to do so at all.

        Robin, the cost of your preference re: guilty clients would exact a substantial time cost on all accused/ litigants and a substantial monetary cost on the taxpayer. I’m not convinced this is worth it.

  • Douglas Knight

    In colonial New England, defendants testified not under oath, as they were considered more likely than other witnesses to lie and society did not want to make them choose between earthly punishment and eternal damnation. The situation with clergy was probably also originally motivated by sincere religious beliefs.

    It seems quite plausible to me that other professional privileges are an attempt to raise professional status by being more like clergy. Thus I endorse Robin’s last paragraph and comparison to sumptuary laws. I think discussing social costs is distracting; in particular, I think Noematic’s analysis is completely correct, yet I do not think it so relevant.

    Incidentally, it seems to me that the social benefit of reporters’ privilege is huge, because I disagree with Robin’s first sentence “Crime is bad.” Reporters are an important source of information to assess which crimes are actually bad.

  • Charlie O

    At a local school, an assistant principal was arrested because she failed to report child abuse to authorities. They printed the law in the paper and it said “No person may claim privileged communications as a basis for his or her refusal or failure to report suspected child abuse” (emphasis added).

    Is it teachers/principal or children who are low status in this instance? Either way, I think it is good that a school official cannot claim privilege.

  • Charlie O

    Here is the link to the article:

  • All, I doubt there’d be be many spouses or clergy jailed for refusing to testify. First, few actually have criminal relations, second many would be deterred from hearing about or relating to criminals, and third prosecutors have discresion on when to press charges.

    JL, yes, I do want the rest in jail, and I don’t want criminals and their supporters to have as easy access to medicine.

    Fnord, I don’t see why requiring folks to not testify makes the situation better.

    Oligop and Douglas, I don’t think we believe that any act in which a reporter shows interest should not be considered a crime. We still mostly want such acts discouraged.

    Just some, people seem proud to live in a society where all citizens have such a privilege.

    JAMayes, many US states have med privileges. Groups can’t lobby for and maintain privileges over a long run unless the wider public accepts them as deserving of such things.

    noematic, I don’t want guilty clients to gain such advantages. Innocent clients lose less without attorney privilege. Also, a privilege that benefits clients also benefits their attorneys, as clients are willing to pay more for such a relation.

    • JAMayes

      The states I’m licensed in do not have it and neither does federal law. Some probably have the privilege, but I’d wager that there is no correlation between this area of law and the relative status of doctors in states with or without the privilege.

      ” Groups can’t lobby for and maintain privileges over a long run unless the wider public accepts them as deserving of such things.”

      Of course they can. I doubt the wider public believes that insurance companies “deserve” an exemption from antitrust laws and all other federal laws of general application. But I’d be shocked if the wider public even knows about it, or the majority of privileges handed out to interest groups.

    • “JL, yes, I do want the rest in jail, and I don’t want criminals and their supporters to have as easy access to medicine.”

      Because crime is “bad’! Never mind that the majority of crimes these days are victimless. (And don’t bother making this position consistent with other Hansonite views, such as that of rules tending to over-strictness.)

      Would Hanson stoop to saying in response, “We should eliminate victimless crimes, rather than consider them in evaluating the rights of ‘criminals.'” He would then stir doubts about whether he know’s what planet he’s on.

  • Fnord

    You claim that we provide lawyer/client privilege but not student/teacher or friend/friend privilege not because confidentiality is especially in lawyer/client relationships but because lawyers are a high status special class. But there is other evidence that we consider confidentiality especially important in lawyer/client relationships: namely, that lawyers are forbidden from sharing that information in any context, not just legal proceedings. Note that clients can waive privilege, while lawyers can’t. Are you going to call clients higher status than lawyers?

    Whether lawyer/client privilege is a good idea is tangential.

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  • Jordan

    This article needs a re-write. I read the entire thing four times and all of the comments once and I still can’t figure out what his point is.

    Near as I can tell, he’s attacking the idea of specific-case privilege with a first principle that they all exist for a single, simple reason which is founded more in generalized psychology and sociology than in narrow utility to legal procedures and disputes. Given this assumption, I suppose the most sensical thing you could come up with would be to Q.E.D. “X is not about Y”, but it’s rather circular.

    That is assuming, of course, that I understand the point at all, which, as mentioned previously, I significantly doubt.

  • Ian Maxwell

    I think the pattern isn’t status, but “socially useful work that can’t really be done without privilege.”

    Physicians can’t do their work without privileged communication, because their clients may withhold information relevant to their treatment.

    Attorneys can’t do their work without privileged communication, because their employees may withhold information relevant to their legal situation.

    Confessors can’t do their work without privileged communication, because their clients may withhold information relevant to the stte of their souls.

    I myself am a teacher, and to be honest I don’t see what information a student might hide from me for fear of prosecution, that would be relevant to his education.

    Caveat 1: I’m not sure where spousal privilege fits into this.

    Caveat 2: One could argue that the work of priests isn’t actually socially useful. Since most Americans think it is, however, the privilege stands. (I wouldn’t actually want to see it disappear, because the outcome would not be “some priests testify” but “some priests are punished for refusing to testify.” To my knowledge there is not a single recorded incident of a priest violating the seal of the confessional, even on pain of execution.)

  • This post reads like a flunked Wasson puzzle: Hanson doesn’t even think to ask about whether roles higher in status than those of priests, doctors, and lawyers are given comparable privileges? Merely to ask the question refutes Hanson’s thesis. Why no senatorial privilege? Why no such privileges for billionaires? Why none for famous professors at elite universities? As with the Wasson puzzles, this question is 50% of what you need to ask to vindicate such an extraordinary thesis; the questions remain unasked, necessarily unanswered.

  • Hernan

    Her? When did you start doing this? To me this is a sign of writing I can’t take seriously. No matter what the subject matter, the writer really just wants to fuck around with the language for the sake of feminist politics.

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