Checking Your Privilege, Part 1: What is a Privilege?

Recently the ABA Journal, and just about every other news outlet that follows the swampish shit-show that is D.C., reported on the fact that Paul Manafort’s lawyer was compelled to testify regarding the work they did for their client. For laymen, this doesn’t mean much. I mean, a lawyer was used to commit a crime, and therefore it’s fine for the lawyer to be compelled to testify. Shit, it isn’t even that surprising for lawyers either, is it?

So, for the next two days I’m gonna talk a little about evidentiary privileges: What they are, how to assert them, how to be careful with them, and finally, a couple of common privileges you should look out for in your case.

So let’s get started, eh?

What’s a “Privilege”?

It’s something you have inherently at birth if you’re born into a certain socioeconomic class or ethnic group.

Oh, you mean in a legal context?

It’s something that prevents the things you’ve said or done from coming into evidence or being disclosed in discovery. You have privileges in a lot of shit, like the Fifth Amendment right that gets invoked in television shows and shit. That’s really just a privilege that you can exercise against self-incrimination. But there are privileges that you have in shit you tell other people, too, and that’s the type of shit we’re going to talk about today and tomorrow: the privileges that you have based on the person you’re working with, and how to exercise them.

Here’s how privileges work in general: The law recognizes there are certain types of people you should be able to talk to without fear of your conversations becoming public knowledge or being used against you. The most well-known one is the one that Manafort’s lawyer was instructed to break, the Attorney-Client Privilege, but there’s also the Accountant-Client Privilege, the Priest-Penitent Privilege, the Spousal Privilege. All of these privileges are built around that one concept, though: people should be able to talk freely to certain types of folks without the fear that their statements will come back to haunt them in court.

So I Can Tell My Wife About My Drug Empire?

I mean, I wouldn’t suggest it Mr. Escobar.

You need to understand, lawyers and muggles alike, that privileges aren’t always able to be asserted by the person that’s being accused. Only the person who holds the privilege can assert it.

Much like beauty, the right to keep your ass out of jail is in the eye of the beholder.

Some privileges, like the attorney-client privilege and the priest-penitent privilege, rest within the domain of the accused. That means the person who has the absolute power to assert the privilege and keep everything they said as secret as an offshore bank account is the guy who did the talking. The attorney can’t waive it, and the priest can’t waive it. Only the client has the right to go to the court and tell it that the privilege is waived.

Other privileges, though, like a Testimonial Spousal Privilege, rest with the person who received the information. So if you tell your wife about your massive meth operation in an RV in the desert, your spouse can certainly choose to testify against your ass if they want to.

But it’s not even that easy, especially if they aren’t testifying about something that happened but rather something you said. Notice I said “testimonial privilege” in the last paragraph? That’s because there are two types of spousal privileges (we’ll talk about that tomorrow). One type keeps your spouse from testifying against you if they don’t want to. The other type, the “Spousal Communications Privilege,” is more limited and is held by both spouses.

But the takeaway you really should get here is that a privilege can only be asserted by the person that holds the privilege, and nobody else. If your client isn’t the holder of the privilege, your client can’t assert the privilege.

What’s This Shit About Asserting Privileges?

Oh, cool, yeah, I should explain that.

Remember that time I talked about how you have to clearly state that you’re asserting your right to remain silent and not incriminate yourself? That’s an assertion of a privilege. The Fifth Amendment is a privilege you have against incriminating yourself.

Like the Fifth Amendment, you have to positively assert the privilege that you’re seeking to claim. Otherwise, you’ve just waived the privilege, and yes, you have to look out for that shit because you can’t really selectively assert a privilege. That means you can’t let the opposing party call the priest and let them ask about some privileged stuff, but then object when they start asking about other privileged stuff.

So, you know, if your guy holds the privilege and doesn’t assert it, you’re fucked. You have to object to assert the privilege. Period.

So Object To The Priest, Problem Solved.

Well…no.

Alright, there are plenty of valid reasons that a witness whose testimony may be privileged in part can be called. Say, for instance, your client is accused of leaving the church, driving across town, and killing someone. The priest may be able to testify as to when he saw your client leave the church, their manner in the church, things they said “outside of the seal of the confessional,” and shit like that. There are perfectly valid reasons why someone who may have privileged testimony would be called to the stand and allowed to testify.

However, once on the stand you need to stay as vigilant as a cat watching a laser pointer. By and large, most lawyers (and especially most prosecutors) are sneaky little bitches. We get the witness on the stand, there’s nothing preventing us from asking about privileged information, especially if you don’t pop out of your seat and object to the question. If we ask “What did he confess to the next week before communion?” and you don’t pop out of your seat to assert the privilege, you just let the fucking priest answer the question, you’ve waived the fucking privilege and now the priest is open game on most, if not all, questions we want to ask.

By the way, this goes the same for witnesses you call.

Privileged People Open Doors

A lot of times you’ll want to call a privileged person for the same reason the prosecution/plaintiff will want to: they have information that’ll help your case. However, you need to be really goddamn aware that once you call the privileged person, your questions cannot touch on any privileged information. If you call the wife, who has asserted the spousal communications privilege, to the stand and ask her about conversations with her husband, you’ve just spread your legs open really wide and invited the opposing counsel to kick you squarely in the balls.

We call this “opening the door,” and it’s when you ask a poorly thought out question, like the neophyte dumb shit you are, that lets otherwise inadmissible or forbidden lines of questioning into the record. If the wife testifies about one conversation she had with her husband in private, for example, now the prosecution/plaintiff can ask about all the conversations, and when you jump up like the target in a whack-a-mole game to object the opposing counsel will spread their hands wide, look innocent, and say “Your honor, they opened the door.”

So if you’re calling a witness who has privileged information you need to go over their testimony ad nauseum and carefully craft your direct examination to keep the witness the fuck away from the privileged information. Then stand ready to object your ass off and back the objections up with law.

Oh, Not All Privileges Apply.

Last note today, is that some privileges are exclusively criminal privileges. There are certain privileges out there that the majority of courts only allow in criminal prosecutions, and don’t allow in civil matters. So you need to actually check the law in your jurisdiction before asserting that the wife’s communications are privileged in a civil matter, especially if that testimony can be severely detrimental to your case.

Next time?

Next time we’ll talk about specific privileges you should be on the lookout for and some broad exceptions that always make privileges inapplicable. Until then, peace out.

I got shit to do.

-BB

Author: BoozyBarrister

From a riverboat to a law office, the BoozyBarrister is a civil litigator with a bad attitude.