Privileged communications

Witnesses

Individuals who provide evidence in legal proceedings before a tribunal. Persons who give testimony under oath in court, concerning what they have seen, heard, or otherwise observed.

Legal proceedings, especially trials, depend on witnesses to present factual evidence to the fact finder, which may be a judge or a jury. Typically each party in a dispute has its own set of witnesses. All witnesses, however, must submit to cross-examination, which means being questioned by the opposing party.

Attendance

Individuals who are called as witnesses have a public obligation to attend the court or legislative tribunal to which they are summoned and to give testimony. Constitutional and statutory provisions provide that the parties to a civil lawsuit have a right to compel essential witnesses to appear. This is done through the service of legal process called a subpoena, which is issued by the court. The state is also entitled to compulsory process in any proceeding in which it has an interest, either civil or criminal. An individual accused of a crime has the right to compulsory process in order to obtain witnesses on his behalf. However, the right to compel witnesses does not ensure the actual attendance of the witnesses.

An individual who receives a subpoena is bound to obey it and appear in court. Once a witness appears in court, he may be forced to attend court until dismissed by the court or by the party who summoned him. A person who fails to appear and testify subject to a subpoena can be punished for Contempt. In addition, the failure to appear may result in the potential witness being liable to the individual who summoned him for any damages that result from his nonappearance. Damages that result from a postponement of the trial because of the failure of a witness to attend can also be assessed. However, if it is determined that the testimony of the defaulting witness was not crucial, the individual who summoned the witness has no right to recover damages.

A witness who is not able to appear at trial may give testimony beforehand and have it recorded on videotape. The witness is examined and cross-examined by the parties and the tape is then shown at trial.

In a criminal trial, a witness whose testimony is crucial to either the defense or prosecution is called a material witness. In most states, a material witness may be required to post a bond guaranteeing his appearance. In cases where a bond cannot be issued, a material witness may be confined by the police until he testifies.

Right to Compensation

Compensation for witnesses is governed by statute and is not designed to reward them for testifying. Its purpose is merely to pay their expenses while they are away from home or work. A witness must be in attendance in the court to be entitled to compensation, even in cases where he is not called upon to testify or proves to be incompetent to serve as a witness.

Witnesses who are subpoenaed are usually entitled to travel expenses. Compensation for voluntary attendance depends upon state law. Some statutes provide that a witness who attends voluntarily without being subpoenaed is entitled to a daily allowance and mileage, while other state laws provide only a daily allowance, or no compensation at all.

Competency

The general rule is that a person is competent to testify if he is able to perceive, remember, and communicate, and believes that he is morally obligated to tell the truth. Legislatures have the authority to set a standard of competency for witnesses in all cases. In the case of young children, the court must assess whether the child is competent to testify.

Expert Witnesses

An expert witness is a person who, by reason of education or specialized experience, is allowed to testify at a trial not just about the facts of the case but also about the professional conclusions he draws from the facts. Medical, scientific, and technical experts are commonly used, but other types of experts can be used. For example, in an employment discrimination case, an economist might serve as an expert witness, providing professional testimony about discriminatory wage patterns in the affected industry. Experts witnesses generally charge a fee for their services.

Relationship to a Party

Generally a witness is not disqualified merely because he is related to one of the parties by blood or marriage. Such a relationship only affects the credibility, not the competency, of the witness.

At Common Law, husbands and wives were considered to be incompetent as witnesses for or against each other in civil or criminal proceedings. This consideration was based on the legal presumption that the testifying spouse was too strongly interested in the outcome of the proceedings to testify truthfully. Most states have modified the common law rule so that either spouse can testify for or against the other in civil cases. In criminal cases, one spouse can ordinarily offer testimony in favor of the other. A spouse can voluntarily testify against the other in federal prosecutions. In addition, a spouse who is a victim of the other spouse's criminal act may testify.

Privileged Communications

As a matter of public policy, certain relationships are held to be confidential and certain communications are privileged against disclosure by a witness. A witness cannot refuse to testify about a matter disclosed in a private conversation in confidence and in reliance upon the witness's promise of secrecy unless the law recognizes it as a confidential communication. Certain communications arising between an attorney and client, a Husband and Wife, priest and penintent, and a physician and patient are privileged against disclosure by a witness.

An individual who refuses to either provide testimony or to answer proper questions when examined before a court is liable for contempt. A mere evasive or noncommittal answer does not, however, constitute a refusal to answer that is punishable by contempt, at least when the court does not direct the witness to be more specific in his answers. A witness cannot be penalized for refusing to answer questions when the answers would violate his Privilege against Self-Incrimination under the Fifth Amendment to the U.S. Constitution.

Credibility

A credible witness is an individual whose statements are reasonable and believable. Courts are reluctant to impute perjury (lying under oath) to an apparently credible witness because a witness is, in general, presumed to speak the truth.

Anything that may shed light on the accuracy, truthfulness, and sincerity of a witness can be brought out by the parties in a case. In particular, a party has the right in either a civil or criminal case to introduce evidence attacking the credibility of a witness for his adversary. The term to impeach a witness means to question the individual's truthfulness by offering evidence that tends to show that the witness should not be believed. In addition, a party has the right to confront witnesses and to cross-examine witnesses who testify in a criminal case. Ultimately, however, the fact finder must decide how much credit should be given to a witness's testimony.

Cross-references

Attorney-Client Privilege; Hearsay; Husband and Wife; Marital Communications Privilege; Privileged Communication; Scientific Evidence; Sexual Abuse "Child Testimony in Day Care Center Sexual Abuse Cases" (In Focus); Shield Laws.

PRIVILEGED COMMUNICATIONS. Those statements made by a client to his counsel or attorney, or solicitor, in confidence, relating to some cause Or action then pending or in contemplation.
     2. Such communications cannot be disclosed without the consent of the client. 6 M. & W. 587; 8 Dow]. 774; 2 Yo. & C. 82; 1 Dowl. N. S. 651; 9 Mees. & W. 508. See Confidential communication.

References in classic literature ?
Under her son's roof--after the death of his wife--she reigned a supreme power; priding herself alike on her close attention to her domestic duties, and on her privileged communications with angels and spirits.
LoCicero, Amster, Rothstein & Ebenstein, discusses the latest developments in the 2013 USPTO Rules of Professional Conduct, proposed new rules relating to privileged communications, and the prosecution conflict issues raised in Maling v.
Despite allegations from The Intercept and other parties, we have seen no evidence to date of any attorney-client privileged communications that were recorded in error.
Kate Brown signed into Oregon law a bill that extends privileged communications - such as between lawyers and clients or husbands and wives - to rape victims and their counselors.
The second inquiry, which the Court expressly reserved in Zolin, pertains to what level of proof is required not for in camera review of privileged communications, but to defeat the privilege altogether.
14) The General also noted the considerable procedures in place aimed at handling and protecting privileged communications inadvertently gathered by the NSA.
The defendant did not testify at trial, and, on appeal, he contended that his testimony would not have disclosed even the existence of privileged communications and he would not have asserted he had relied on counsel.
7525(a)(1), communications between a taxpayer and a federally authorized tax practitioner for the purpose of obtaining tax advice generally are accorded the same protection in noncriminal proceedings as communications between a taxpayer and an attorney, to the extent that they would be privileged communications between the taxpayer and the attorney.
Black's Law Dictionary defines privileged communications as "those statements made by certain +persons within a protected relationship .
Other topics include interviewing juveniles; contact, seizure, and arrest; and privileged communications.
EAPs who contact clients in several states require a review of each state's laws: licensing and regulations, confidentiality, privileged communications, discipline, and recordkeeping; the law in each state regarding teleservices; and if a license is required, how to apply for one based on reciprocity with the provider's home state.
The Model Rules do not allow a lawyer to escape responsibility for the improper destruction of a client record or the disclosure of privileged communications simply by placing the blame on a more junior lawyer.