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Until Death Do Us Part: Privileged Communications at Trial






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Dec 7, 2018

Until Death Do Us Part: Privileged Communications at Trial

All the crime shows today repeat the same words when arresting someone for a crime: “You have the right to remain silent, anything you say can and will be used against you in a court of law.” What crime shows don’t often tell you is there are some conversations that are protected by the Rules of Evidence. Conversations between you and these specialized people can be excluded from trial if they are deemed “privileged communication.” If conditions are right, confidential conversations with attorneys, health care professionals, spouses, and clergy can be excluded from trial.

The first privileged communication in the Maine Rules of Evidence is with an attorney. Lawyers are bound by ethical rules to keep communication confidential. Attorneys must keep confidential communication a secret until both the attorney and the client are deceased. The courts support this by allowing people to claim this privilege to prevent an attorney to testify about a pending matter the attorney represents the client on. This is done to ensure that a client can be completely open and honest with his or her attorney, and know that those conversations are private. However, if another person is in the room that is not hired to assist in the case, then the confidentiality is broken. Also, there are some exceptions to this rule, depending on the nature of the conversation. Conversations with attorneys to plan crimes or fraud, conversations about a breach of duty to a client or attorney, statements with joint clients about common interests, and other types of communication with a lawyer may not be protected under the attorney-client privilege. If you are charged with a crime, most conversations with the attorney will be protected. An experienced attorney will warn you if you start talking about things that may not be protected. The attorney-client privilege is a time-honored form of confidential communication, and more often than not these conversations will not be admissible in trial.

Maine allows communications between patients and health care professionals to be privileged communication. Like lawyers, health care professionals (doctors, nurses, counselors, etc.) have laws and ethical standards to keep communications confidential. Also like lawyers, this is done to best help take care of a patient without a fear of legal issues. This privilege protects communications between a patient and health care professional that relate to diagnosing and treating physical, mental and emotional illnesses. One of the trickiest parts of this privilege is figuring out who is a health care professional under the legal definitions. An experienced attorney will know to compare the credentials of the health care professional with the rules to determine if these conversations are privileged communication. Exceptions to this rule include determinations that someone needs to be hospitalized, evaluations done by court order, if someone uses a health condition as a defense, or if the patient is deceased and there is an issue relating to their health. While medical communication is usually confidential, it is important to know who is communicating and what is said to determine whether the health care professional privilege applies.

Another very commonly known privilege in Maine is the spousal privilege. A married person has the right to prevent their spouse from testifying about a confidential communication. This type of communication must be made solely between them, and not intended for others to know. This privilege does not apply if you are charged with a crime committed against your spouse, a child of either spouse, a person residing in either spouse’s house, or a third party if the crime against them is alleged to happen while committing a crime against anyone else listed above. Also, this privilege does not apply when the two spouses are opposing each other in civil proceedings. These include divorce, custody battles, protection from abuse matters, or other civil suits. The conversations between spouses can be the most intimate and private, and are therefore privileged, but only under certain circumstances.

Another privileged form of communication in Maine is called the Religious Privilege. A person can refuse to allow a member of the clergy to disclose a confidential communication between the two, if the clergy member was acting as a spiritual advisor at the time. There are no listed exceptions to this rule, but the definitions are precise. An experienced attorney will know these definitions, and will be able to determine whether any communications with a clergy member apply. This rule does not single out any particular religion, only that the person must be a spiritual advisor ordained or credited by a religious organization. A person’s spiritual needs are incredibly important, which is why the court allows confidential communications with clergy to be classified as privileged.

There are other types of privilege in addition to these four (voting record, trade secrets, etc.), but oftentimes these are the most disputed and most common. If you are facing criminal charges and are worried about who can testify about a conversation with you, contact the attorneys of MCD Group for an immediate consultation.



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