Privilege (evidence)

Under common law, privilege is a term describing a number of rules excluding evidence that would be adverse to a fundamental principle or relationship if it were disclosed. [Butterworths Concise Australian Legal Dictionary]

The most common form is solicitor-client privilege (attorney-client privilege under US law and client legal privilege in Australia). This protects confidential communications between a client and his legal adviser for the dominant purpose of legal advice. [Esso Australia Resources Limited v The Commissioners of Taxation (1999) 201 CLR 49;168 ALR 123] 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 (in other proceedings), without prejudice privilege (protecting communications made in the course of negotiations to settle a legal dispute), public interest privilege (formerly Crown privilege, protecting documents necessary for the proper functioning of government), marital privilege, medical professional privilege, and priest-penitent privilege.

The effect of the privilege is usually a right on the part of a party to a case, allowing them to prevent evidence from being introduced in the form of testimony from the person to whom the privilege runs. For example, a person can generally prevent his attorney from testifying about their legal relationship, even if the attorney were willing to do so. In a few instances, such as the marital privilege, the privilege is a right held by the potential witness. Thus, if a wife wishes to testify against her husband, she may do so even if he opposes this testimony; however, the wife has the privilege of refusing to testify even if the husband wishes her to do so.

Notes

ee also

*Accountant-client privilege
*Reporters' Privilege
*Shield law
*State Secrets Privilege
*Public Interest Immunity
*Admissible evidence
*Right to silence