Our society has determined that there are interactions that happen in certain important relationships that are more important than the discovery of criminal activities (often with the exception of crimes against children). These relationships encompass marriage, religious guidance, medical care and legal advice.
We’ve made a broad decision that there are sacred confidences within a marriage that the state should not be able to force open, that providing someone with correct and appropriate medical care requires that a doctor know all the important facts and that legal professionals should know details of a person’s situation in order to properly represent them, and that in each case, what’s shared within these relationships cannot then be compelled from the participants.
In some cases, the reasons are ideological. The family, and in particular, the bond of marriage, is seen by many as a foundational element within the fabric of society, and this relationship only functions as it should where there is trust and confidence.
In other cases, the reasons are societal. A doctor may only be able to protect others within the community if the person under their care can be honest with them about the details of their medical situation. Such honesty is only possible if even criminal elements of those details are likely to be shared.
But such “privileges” need to be well understood before they are claimed as catch-alls for protecting information from law enforcement as part of a defense. These privileges have rigid limits, and are generally narrower than most people imagine.
For example, doctor-patient privilege applies only when the information shared is relevant to the medical care required. In the case of a person stating to a doctor that an injury was sustained by a tire iron while they were carjacking a vehicle, the fact that the harm was caused by a tire iron is likely privileged, since such knowledge may be required by the doctor to recommend necessary care. However, the fact that the injury was sustained in the course of a carjacking is unlikely to be needed by the doctor to apply care, and as such would not be privileged. At the same time, noting an injury as having come from a tire iron to a doctor may be privileged, but if done in the presence of a medical assistant, who does not share the same role in doctor-patient privilege, means that the information is not protected.
Developments in technology are leading to new complexities and the need to interpret in new ways the meaning of privilege. In Maryland, the idea that text messages between husband and wife are privileged has been challenged on the basis that a person may have some expectation that a notification of a message on a screen may be seen by others in addition to the recipient.
And while many people who face criminal charges may assume all interactions between themselves and their representing lawyer are protected by client-attorney privilege, there are cases being explored where information may be available to law enforcement through legal invoices, which may not be automatically privileged in the same way that discussions between the parties are.
As with all such topics, the best approach for anyone in this situation is to clarify issues of privilege with their lawyer before entering discussions relevant to their defense.