Federal Rules of Evidence/Privileges

Article V of the Federal Rules of Evidence deals with privileges. It consists of one rule.

Rule 501. General Rule

Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.

Privilege is an important evidentiary rule, and there was a movement to codify key privileges in the Federal Rules of Evidence. But this movement did not succeed, and today's rules do not expressly state which privileges are recognized and which are not. The privileges themselves remain common law—traditional rules which are periodically redefined by the courts.

The privileges that may be invoked in federal court include:

Attorney-client privilege

Covers all communications between an attorney, their client, and any other associates within the scope of the attorney's representation of the client. The client waives the privilege if they disclose the privileged information to a third party. There are several exceptions: the attorney may break privilege to prevent the client's commission of a dangerous criminal offense, and should break privilege when he or she knows that the client is lying to the court. The attorney can also use privileged information to rectify any fraudulent or criminal behavior perpetrated by the client with the attorney's unknowing assistance. Attorney-client privilege can also be broken when there is an issue of the attorney breaking his or her duty to the client (malpractice) or of the client breaking his or her duty to the attorney (failure to pay fees). See Proposed Rule 503, which was rejected by Congress but contains good guidelines to the scope of the attorney-client privilege.

Spousal privilege

Confidential communications between spouses within the martial context are subject to spousal privilege.

Priest-penitent privilege

Under common law, a penitent may keep their disclosures to their priest under privilege. (The privilege belongs to the priest under Catholic canon law, and may only be broken with a dispensation from the cardinal, which can only be obtained with the permission of the Pope.)