October 18, 2021
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The Legal Doctrine of Privilege

It’s hard to read the news these days without finding at least one story in which Donald Trump or one of his pure-hearted freedom fighters isn’t claiming privilege in order to avoid testifying. One would think that rather than hiding behind a technicality, they would be racing to lay out their evidence of innocence, but that’s being cynical, isn't it?

It’s always risky to discuss any legal doctrine in a few short paragraphs, particularly rules of evidence. and especially the thorny rules of privilege. That said, let’s give it a shot.

All rules of evidence are about balancing fairness-- fairness both to the accused and to the rest of us. If our society is to be open and trustworthy, dirty secrets should have no place to hide. But at the same time, in the interests of open and fearless communication, certain types of speech and evidence are exempted from compulsory disclosure in the courts, and that is at the heart of the law of privilege.

One of the oldest forms of privilege was spousal privilege, that is, a spouse could not testify against the other spouse. In its quaintest form, the doctrine flowed from the religious notion of the unity of personality of husband and wife-- “they shall be one flesh”-- so that having a wife testify against her husband was impossible because it was tantamount to self-incrimination. The law has been significantly whittled down, although it is still important enough to show up on law school exams.

At the risk of over-simplification, it should be remembered that privilege generally belongs to the witness. Thus, while a wife may not be compelled to testify against her husband, she is normally at liberty to do so if she wishes. Similarly, solicitor-client privilege belongs to the client, not the lawyer, so that a client is normally free, but not compellable, to testify as to private communications in the lawyer’s office.

Another form of privilege grows out of the notion that society needs to allow and protect full and frank discussion in certain settings, particularly legal and legislative bodies. This explains why we hear of members of parliament saying outrageous things about other members, with the maligned member opposite inviting them to repeat the language outside the chamber, where the privilege doesn’t exist, and is therefore actionable. "Let's take it outside" is heard in Parliament, not just in taverns, although with a different remedy in mind.

In presidential systems of government, the doctrine of executive privilege has grown up and was given certainty in the US Supreme Court decision of United States v Nixon which confirmed the general rule, but then went on to find that Tricky Dick’s secret recordings fell outside the protection and had to be turned over to Congress. Of some interest is that the unanimous decision included three justices appointed by Nixon.

At the heart of the doctrine of executive privilege seems to be whether the language or activity should be protected so as to encourage frankness behind the closed doors of office in the furtherance of governing the nation, or whether the language or activity has no such protection because it was primarily in the personal or political interests of the speaker and not of the public. Hence, Nixon’s nefarious politically-motivated recordings attracted no privilege.

The next few months will probably see considerable public focus on the law of executive privilege and we will see if the US Supreme Court stands on principle or politics. I, for one, expect that they will uphold the law as it stands.

(For those wanting a more complete discussion of the rules of evidence in Canada, an excellent and very readable paper is one written by Shapiro and Silver, here.)

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