Privileges in Your Criminal Case

Introduction to Privileges in Your Criminal Case

privileges in your criminal caseIn proving its case against you, the prosecution will rely on evidence and the testimony of various witnesses. In a significant number of cases, the prosecution may have no direct evidence of your involvement in criminal activity at all but will proceed with its case relying solely on the testimony of witnesses. Some of these witnesses may be neutral third-parties – “innocent bystanders” who happened to be in a position to observe the criminal act but who are not related to the incident or you. In other situations, however, the only witnesses available for the prosecution to use may be witnesses who are related to you by blood, marriage, or by some special relationship. In these cases, privileges may prevent the witness from testifying against you.

Definition of “Privileges”

In this context, a “privilege” refers to the ability of the defendant to prevent and preclude a potential witness from testifying against him or her. The “privilege” to exclude these potential witnesses belongs to the defendant. In other words, a witness covered by a privilege may be prevented from testifying if the defendant so desires – even if the witness him- or herself wishes to testify. So (for example), even if a former attorney of a defendant wants to testify at the defendant’s trial about all the relevant details of the crime that the defendant shared with him, the defendant can assert a privilege and prevent the attorney from testifying.

The Four “Privileges”

Arizona law recognizes four privileges applicable in criminal cases (many states also recognize these same privileges: a few states recognize additional privileges as well):

  • The spousal privilege protects a defendant from having his or her spouse testify against him or her about any event or communication that occurs during the course of the marriage. For example, a husband who comes home and tells his wife that he just burglarized the neighbor’s home can later assert the spousal privilege (or anti-marital fact privilege, as the statute calls is) and prevent his wife or partner from testifying about this admission at the husband’s trial;  For more on the marital privilege see the statute.
  • The attorney-client privilege prevents an attorney from disclosing statements made to the attorney by the client or advice the attorney gave to the client during the course of representing the client;
  • The priest-penitent privilege would prevent a clergyman who is engaged in the course of his employment and who receives a confession from the defendant from later testifying about the substance of that confession;
  • Finally, the patient-physician privilege protects a defendant from having a doctor, surgeon, or other similar professional from testifying about statements the defendant made to him or her when the defendant was seeking out medical care and treatment from the doctor or professional.

Because these privileges belong to the defendant, it falls upon the defendant to assert them at trial. A defendant cannot simply sit back, allow the prosecution to examine the defendant’s spouse, doctor, clergyman, or attorney, and then later complain about the impropriety of the prosecution’s actions. Instead, if the defendant believes that proposed testimony would violate one of these privileges, the defendant must object and bring the matter to the attention of the court as soon as possible. A defendant who fails to do so may be deemed to have “waived” (or given up) the privilege.  See the marital privilege statute for additional information.

Defendants should note that some of these privileges pertain only to communications – not observations. For example, a person may be able to assert the patient-physician privilege to prevent his or her doctor from testifying about what the defendant told the doctor when the defendant sought treatment from him or her, but the privilege would not prevent the doctor from being examined about what the doctor saw when the defendant appeared and requested treatment.


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