PRIVILEGED COMMUNICATIONS W. DAVID LEE Senior Resident Judge District 20B 2006 Superior Court Judges’ Conference Wrightsville Beach, NC June 15, 2006

Relational privileges exclude logically relevant evidence Assured confidentiality of disclosure trumps relevant, reliable evidence as a matter of social policy Many relational privileges are governed by statute. Other privileges, such as attorney-client, are governed principally by case law

PROCEEDINGS TO WHICH PRIVILEGES APPLY Any proceeding in which testimony can be compelled (Trial Courts; Industrial Commission) Principal exception: Child abuse cases

WHO HOLDS THE PRIVILEGE? Generally, the intended beneficiary of the privacy Physician-Patient: Patient Attorney-Client: Client Husband-Wife: Non-witness spouse* Clergymen- Communicant Communicant

* Husband-Wife Privilege: Which spouse is the holder? Person making the communication If only one spouse speaks, then that party is the holder If both speak, both would hold the privilege

Survival of the Privilege Holder of privilege becomes mentally incompetent: Guardian becomes holder Holder dies: Personal representative becomes holder Holder’s agent may be deemed the holder where explicit authorization (eg., attorney at hearing in absence of client)

Nature of the Privilege (May encompass three rights) Personal Holder has personal right to refuse to disclose the privileged information Right to Prevent Third Party Disclosure* Recipient is bound by wishes of holder (physician or attorney bound) Right to Preclude Judge and Opposing Counsel from commenting on the invocation of the privilege

*Right to Prevent Third Parties from making disclosure is complicated where the third party is an eavesdropper or interceptor. –Husband-Wife privilege: North Carolina follows traditional view that an eavesdropper or interceptor is not prevented by the holder from making the disclosure unless one spouse connived to allow the eavesdropping.

Interplay of Privilege and Exclusionary Rule Spouse reveals confidential communication from the other spouse to police. Information leads to other evidence that incriminates the other spouse (holder of the privilege) Is the incriminating evidence admissible or is it “fruit of the poisonous tree”? Admissible. See State v.Cousin, 291 N.C. 413, 230 S.E.2d 518 (1976) (Evidence derived from violation of the confidence cannot be suppressed, even though the defendant- holder of the privilege may preclude the other spouse from repeating the confidential communication on the witness stand)

In camera review Manner of determining necessity of disclosure is complicated where information is voluminous and/or problematic in its application to the facts Can judge delegate initial review to counsel as “officer of the court”?

What Information is privileged? “Communication” –May be either oral or written –Physician-patient: may extend to any information gained by examining the patient –Husband-wife: may include assertive acts, if intended as a communication and induced by the relationship

Confidential? Two-pronged test: 1.Physical privacy 2.Intent by holder to maintain secrecy See State v. McIntosh, 336 N.C. 517, 444 S.E.2d 438 (1994) (No privilege where attorney was retained in order to convey information to the police and arrange safe surrender for the client)

PHYSICIAN-PATIENT PRIVILEGE Nature of Privilege: Qualified Disclosure ordered “if necessary for proper administration of justice” In criminal cases, disclosure may be required if information is: (i) exculpatory, or (ii) material to defense or punishment

Waiver of Physician-Client Privilege (May be Express or Implied) Patient fails to object Patient calls and examines doctor Patient testifies re communication Patient’s claim places his medical condition at issue

ATTORNEY-CLIENT PRIVILEGE Elements: (1)Relationship of attorney and client (2)Communication made in confidence (3)Attorney being professionally consulted (4)In the course of giving or seeking legal advice (5)Client has not waived the privilege (subject to the general supervisory powers of the trial court)

“Protected” Relationship? Corporate employee communications with corporate counsel –Is employee a “control group” employee? –Is employee divulging information gained in the course of performing employment duties? (Majority rule adopted in Upjohn Co. v. United States, 449 U.S.383, 101 S. Ct. 677, 66 L. Ed.2d 584 (1981))

Is the client’s communication with an expert hired by his attorney protected by the attorney-client privilege? If the attorney needs an evaluation of the client’s communication with the expert (as where attorney sends defendant to a psychiatrist for evaluation, requiring expertise/analysis of which the attorney is not capable, then the privilege exists and client’s communications are protected by the attorney-client privilege “at least until the expert is placed on the witness stand.” State v. Ballard, 333 N.C. 515, 428 S.E.2d 178 (1993)

Attorney-Client Privilege Exceptions Joint consultation with attorney –Privilege may not be claimed as between the clients in the event of a dispute Holder seeks advice from attorney to facilitate the commission of a future crime or fraud –No privilege

HUSBAND-WIFE PRIVILEGE Civil actions: N.C.G.S. sec Criminal actions: N.C.G.S. sec Husband and Wife are competent witnesses under both statutes, but may not be compellable to testify in certain criminal actions Privilege protecting from disclosure of confidential marital communications applicable under both statutes

Privileges Not Recognized in North Carolina Accountant-Client Judge Napping during Presentation at Summer Conference