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Privileges - MN Bench Book - Trial Procedures & Practices for Judges
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Privileges

From MN Bench Book - Trial Procedures & Practices for Judges

Click on “TRIAL PROCEDURES & PRACTICES FOR JUDGES” above to return to main page


MARITAL PRIVILEGES M.S.A. § 595.02, subd. 1(a)
PHYSICIAN/PATIENT M.S.A. § 595.02, subd. 1(d)
MINISTER/PARISHONER M.S.A. § 595.02, subd. 1(c)
ATTORNEY/CLIENT M.S.A. § 595.02, subd. 1(b)
PARENT/MINOR M.S.A. § 595.02, subd. 1(j)
PSYCHOLOGIST/SOCIAL WORKER M.S.A. § 595.02, subd. 1(g)

Privileges grant particular individuals the right to not testify or disclose documents regarding certain matters.[1] Privileges are established by statutory law, not common law.[2] A mere assertion of the privilege is not enough.[3] The burden of proof rests on the asserting party to provide facts that establish the privilege.[4] The existence or non-existence of the asserted privilege is a preliminary matter for the trial court to decide.[5]

MARITAL PRIVILEGE

M.S.A. § 595.02, subd. 1(a)[6]

Marital partners (1) cannot testify against each other during their marriage, and (2) after the dissolution of a marriage, the ex-partners cannot testify against each other regarding interspousal communications made during the marriage.[7] The privilege does not extend to conduct not intended to communicate a message (non-assertive conduct),[8] nor to communications made prior to the marriage, or after the dissolution.[9] The privilege also does not apply in intra-familial disputes.[10] The privilege does not apply to a civil action or proceeding by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other or against a child of either or against a child under the care of either spouse. Unless the non-testifying spouse objects and absent special circumstances failure to object to the spouse testifying is a waiver of the privilege.[11]

PHYSICIAN/PATIENT

M.S.A. § 595.02, subd. 1(d)[12]

(1) Licensed physicians, (2) surgeons, (3) dentists, and (4) chiropractors cannot disclose any information[13]—or an opinion based on information[14]—which arose within the professional relationship without the patient’s consent.[15]

Confidential physician/patient communications are defined as such:[16]

  • There must be a physician-patient relationship. This means that the examination must be for the purposes of diagnosis and treatment—a medical evaluation for the purpose of obtaining trial evidence does not create a physician-patient relationship.[17]
  • The type of information acquired by the physician must be of the type contemplated by the statute. This is interpreted broadly to include not just verbal communications, but also observations, results of examinations, and any other form relevant to medical treatment. [18]
  • The information must be acquired by the physician while attending the patient. This is interpreted broadly to include personnel, such as nurses, technicians, aides, and orderlies, acting as agents of the physician,[19] but the communication must be made in confidence.[20]
  • The information must be necessary to enable the physician to act in a professional capacity. Matters not pertinent to treatment are not privileged.[21] It is construed very narrowly. In the most common application, information concerning the cause of an injury, e.g. a traffic accident, is not privileged.[22]

Waiver: Even when a privilege exists, it is easily waived, either by the patient putting the relevant medical condition at issue,[23] or simply failing to object to the proffered testimony.[24]

MINISTER/PARISHIONER

M.S.A. § 595.02, subd. 1(c)[25]

Communications made to members of the clergy or other religious ministers that are intended to be private and are confessional in nature, or concern religious or spiritual advice, aid, or comfort, are privileged.[26]

Waiver: This privilege may be waived on the consent of the person making the confession or seeking the advice.[27]

ATTORNEY/CLIENT

M.S.A. § 595.02, subd. 1(b)[28]

While much has been written about attorney-client privilege, there are several key points to bear in mind:

  • The general rule protects any confidential communications made between the client and his lawyer[29] for the purpose of legal representation.[30] A formal relationship is not necessary.[31]
  • The separate duty of attorney confidentiality is broader in Minnesota than the national norm. It applies to all information, without regard to the nature, the source, or the common awareness of the information.[32]

Waiver: the privilege can be waived expressly;[33] impliedly, when the client discusses the contents of the communication;[34] when the client attacks the professional competency of the attorney;[35] or whenever the presence of a third party destroys the confidentiality.[36]

PARENT/MINOR

M.S.A. § 595.02, subd. 1(j)[37]

Minnesota is in a minority of states[38] that finds that confidential communications made by a minor child to a parent are generally privileged.[39] The exceptions often overwhelm the rule,[40] since the privilege does not apply in:[41]

  • A civil action between the parents or between a parent and the child;
  • Proceedings to commit the child or parent;
  • Criminal action, when the parent is charged with a crime against the spouse or the child;
  • Proceedings for termination of parental rights, or other actions relating to child abuse, child neglect, abandonment or non-support by a parent.

The privilege may be waived by either the parent or the child.[42]

PSYCHOLOGIST/SOCIAL WORKER/COUNSELOR

M.S.A. § 595.02, subd. 1(g) Minnesota also extends statutory privilege to the range of mental health professionals,[43] chemical dependency counselors,[44] sexual assault counselors,[45] and social workers,[46] so long as the information arises within a professional capacity and is necessary to enable the professional to act in that capacity.[47] Statute provides several major exceptions, which apply to cases of neglect or physical or sexual abuse of a minor.[48]




References:

  1. Black's Law Dictionary (8th ed. 2004), privilege: testimonial privilege. A right not to testify based on a claim of privilege; a privilege that overrides a witness's duty to disclose matters within the witness's knowledge, whether at trial or by deposition.
  2. “…The Supreme Court, however, shall not have the power to promulgate rules of evidence which conflict, modify, or supersede the following statutes:…(a) statutes which relate to the competency of witnesses to testify, found in sections 595.02 to 595.025…” M.S.A. § 480.0591, subd. 6; see also State v. Staat, 291 Minn. 394, 396-97, 192 N.W.2d 192 (1971): “At common law, confidential communications between physician and patient, like confidential communications generally, were not legally privileged”; the only exception is the marital privilege. See State v. Gianakos, 644 N.W.2d 409, 416 (Minn.2002): “Despite the statutory nature of the marital privilege, its roots are in the common law, and Supreme Court retains inherent power to adopt standards by judicial opinion relating to the admissibility of evidence in the interest of justice.”
  3. “…a mere assertion that a communication is confidential and privileged is not enough. A proper showing must be made because the objective of a rule of privilege is to suppress evidence which otherwise may be not only admissible but crucial to a claim or defense. Thus, rules of privilege are applied more deliberately than other evidentiary rules which exclude available evidence that is unreliable, misleading, or prejudicial...” State v. Lender, 266 Minn. 561, 564, 124 N.W.2d 355 (1963).
  4. “Unless a document discloses on its face that it is privileged, a mere assertion that a communication is confidential and privileged is not enough.” State v. Lender, 266 Minn. 561, 564, 124 N.W.2d 355 (1963); see also King v. Commissioner of Public Safety, 366 N.W.2d 613, 615 (Minn.App.,1985): “The burden rests upon the claimant of the privilege to establish all facts necessary to invoke it.” Citing State v. Anderson, 247 Minn. 469, 477, 78 N.W.2d 320, 326 (1956).
  5. State v. Lender, 266 Minn. 561, 564, 124 N.W.2d 355 (1963).
  6. M.S.A. § 595.02, subd. 1(a): “A husband cannot be examined for or against his wife without her consent, nor a wife for or against her husband without his consent, nor can either, during the marriage or afterwards, without the consent of the other, be examined as to any communication made by one to the other during the marriage. This exception does not apply to…[any form of intra-family dispute]”
  7. State v. Gianakos, 644 N.W.2d 409, 416 (Minn.2002).
  8. Wife of murder defendant could testify, without violating spousal testimony statute, as to husband's nonassertive conduct which was not directed to her, including defendant's concealing shotgun in jacket, displaying victim's keys and instant cash card and revealing unexpected cash, unloading victim's belongings from victim's truck, entering building to which victim had keys, and walking in woods near location where body was discovered. State v. Hannuksela, 452 N.W.2d 668 (Minn.1990); see also In re Petition for Disciplinary Action Against Westby, 639 N.W.2d 358, 366 (Minn.2002): “The term "communication," as used in statute governing marital privilege, applies only to assertive conduct, including written or spoken words, acts, and gestures which were intended by one spouse to convey a meaning or message to the other, and thus, it is permissible for one spouse to testify as to the other spouse's nonassertive conduct that is not directed to the first spouse.”
  9. State v. Thompson, 413 N.W.2d 889, 890 (Minn.App.1987).
  10. “This exception does not apply to a civil action or proceeding by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other or against a child of either or against a child under the care of either spouse, nor to a criminal action or proceeding in which one is charged with homicide or an attempt to commit homicide and the date of the marriage of the defendant is subsequent to the date of the offense, nor to an action or proceeding for nonsupport, neglect, dependency, or termination of parental rights.” M.S.A. § 595.02, subd. 1(a).
  11. State v. K. R. Jones, ( Minn. S. Ct A07-457 2008)
  12. M.S.A. § 595.02, subd. 1(d): “A licensed physician or surgeon, dentist, or chiropractor shall not, without the consent of the patient, be allowed to disclose any information or any opinion based thereon which the professional acquired…”
  13. M.S.A. § 595.02, subd. 1(d).
  14. M.S.A. § 595.02, subd. 1(d).
  15. “[A] physician cannot disclose without patient's consent information acquired in his professional capacity necessary to enable him to act in that capacity.” Polin v. St. Paul Union Depot Co., 1924, 159 Minn. 410, 412, 199 N.W. 87 (1924).
  16. State v. Staat, 291 Minn. 394, 398, 192 N.W.2d 192, 196 (1971).
  17. “Where a medical examination is for some reason other than diagnosis and treatment, we have held the privilege does not obtain.” State v. Emerson, 266 Minn. 217, 224, 123 N.W.2d 382, 387 (1963); see also State v. Dodis, 314 N.W.2d 233, 239–40 (Minn. 1982) (concluding that there was no constitutional or statutory privilege precluding the state from calling as a witness a psychiatrist retained by the defense for a competency hearing).
  18. See State v. Staat, 291 Minn. 394, 400, 192 N.W.2d 192, 197 (1971) (holding that the statute's broad language encompasses physical articles found on or near the patient, verbal communications, and any other knowledge obtained by the physician through his observation and examination).
  19. “The physician-patient privilege extends by implication to nurses or attendants who are employees or acting under the direction of the physician examining or treating the patients.” State v. Staat, 291 Minn. 394, 400-01, 192 N.W.2d 192 (1971), citing Ostrowski v. Mockridge, 242 Minn. 265, 65 N.W.2d 185, 190–91 (1954).
  20. Presence of a third party during consultation or treatment renders statements a patient makes to a physician nonprivileged if the third party is not a necessary and customary participant in the consultation or treatment. State v. Gillespie, 710 N.W.2d 289 (Minn.App.2006), review denied.
  21. See Blue Cross and Blue Shield v. Larson, 472 N.W.2d 885, 886 (Minn.App.1991) (concluding that patient identification and appointment information was not absolutely privileged).
  22. See King v. Commissioner of Public Safety, 366 N.W.2d 613, 615 (Minn.App.1985) (ruling that information concerning a traffic accident and intoxication was not privileged under the statute).
  23. “Under Minnesota law, when a patient places his or her medical condition at issue, the physician-patient privilege is waived to a limited extent regarding the testimony of every person who has examined or may thereafter examine the patient or person under patient's control with respect to the same condition…” In re Baycol Products Litigation, 219 F.R.D. 468, 470 (D.C.Minn.2003).
  24. Privilege existing between physician and patient may be expressly waived by patient or may be impliedly waived by him by failing to object to proffered testimony. Tweith v. Duluth, M. & I.R. Ry. Co., 66 F.Supp. 427, 431 (D.C.Minn.1946).
  25. M.S.A. § 595.02, subd. 1(c): “A member of the clergy or other minister of any religion shall not, without the consent of the party making the confession, be allowed to disclose a confession made to the member of the clergy or other minister in a professional character, in the course of discipline enjoined by the rules or practice of the religious body to which the member of the clergy or other minister belongs; nor shall a member of the clergy or other minister of any religion be examined as to any communication made to the member of the clergy or other minister by any person seeking religious or spiritual advice, aid, or comfort or advice given thereon in the course of the member of the clergy's or other minister's professional character, without the consent of the person.”
  26. Statute providing for testimonial privilege with respect to communications with clergy member or minister does not require that conversations with minister be in nature of confession; privilege requires either penitential confession or conversation for purpose of seeking religious or spiritual advice, aid or comfort. State v. Orfi, 511 N.W.2d 464 (Minn.App.1994), review denied.
  27. M.S.A. § 595.02, subd. 1(c).
  28. M.S.A. § 595.02, subd. 1(b): “An attorney cannot, without the consent of the attorney's client, be examined as to any communication made by the client to the attorney or the attorney's advice given thereon in the course of professional duty; nor can any employee of the attorney be examined as to the communication or advice, without the client's consent.”
  29. (1) between the client or the clients' representative and the lawyer or the lawyers' representative; (2) between the lawyer and the lawyers' representative; (3) between the client or the lawyer and a lawyer representing another in a matter of common interest; (4) between representatives of the client or between the client and the client's representative; (5) between lawyers representing the same client. See United States v. Horvath731 F.2d 557 (8th Cir.1984).
  30. Communications made for ordinary business purposes are not privileged; a short-hand test is whether the lawyer’s status as a lawyer was relevant or involved. See United States v. Horvath, 731 F.2d 557 (8th Cir.1984).
  31. Brown v. St. Paul C. R. Co., 241 Minn. 15, 62 N.W.2d 688 (1954) (initial consultation that did not lead to the client hiring the attorney was still privileged); see also Togstad v. Vesely, 291 N.W.2d 686 (Minn. 1980) (malpractice case demonstrating how casually the attorney-client relationship may be established).
  32. Minn. R. Prof. Cond. 1.6(d). “Confidence” refers to information protected by the attorney-client privilege under applicable law, and “secret” refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.
  33. M.S.A. § 595.02, subd. 1(b).
  34. “[T]he client impliedly waives the privilege where he himself discusses the contents of a professional communication…” State ex rel. Schuler v. Tahash, 278 Minn. 302, 308, 154 N.W.2d 200 (1967); see also State v. Tall, 43 Minn. 273, 45 N.W. 449 (1890) (stating that witness can waive attorney-client privilege by testifying to privileged communications).
  35. "[T]he client impliedly waives the privilege where… he makes an attack upon the professional competence of his counsel.” State ex rel. Schuler v. Tahash, 278 Minn. 302, 308, 154 N.W.2d 200 (1967); see also State v. Walen, 563 N.W.2d 742, 753 (Minn.1997): “[W]e hold that a defendant who claims ineffective assistance of counsel necessarily waives the attorney-client privilege as to all communications relevant to that issue.”
  36. “Where attorney and client chose public place in which to discuss matters pertaining to their professional relationship and a third person overheard conversation without resorting to surreptitious methods, attorney and client were deemed to have waived privilege, and testimony of third person as to her version of conversation was admissible.” Schwartz v. Wenger, 1963, 267 Minn. 40, 42, 124 N.W.2d 489 (1963).
  37. M.S.A. § 595.02, subd. 1(j): “A parent or the parent's minor child may not be examined as to any communication made in confidence by the minor to the minor's parent. A communication is confidential if made out of the presence of persons not members of the child's immediate family living in the same household…”
  38. “[A] majority of courts have declined to recognized a parent-child testimonial privilege, generally reasoning that its benefits to the family and society would not warrant the serious limitation on truth seeking that would result and that the creation of new testimonial privileges is a matter best left to the legislature.” 62 A.L.R.5th 629.
  39. M.S.A. § 595.02, subd. 1(j).
  40. This is demonstrated by the absence of any case law involving child-parent communications not falling within one of the listed exceptions. The only case in Minnesota is State v. Stevens, 580 N.W.2d 75 (Minn.App.1998), where the court found that a parent or the parent's minor child may not be examined as to any communication made in confidence by the minor to the minor's parent. In that case, however, the court subsequently found that the challenged communication was not privileged. “Appellant relies on the legislative history of Minn. Stat. § 595.02, subd. 1(j), to support his contention that the parent-child privilege was created to permit and encourage children to confide in their parents and seek their advice in times of trouble. While this may be the policy behind the statute, the content of appellant's note in this case indicates that he was telling his mother what he testified to on the stand; he was not seeking her advice and counsel.” Id. at 79.
  41. M.S.A. § 595.02, subd. 1(j).
  42. M.S.A. § 595.02, subd. 1(j): “…This exception may be waived by express consent to disclosure by a parent entitled to claim the privilege or by the child who made the communication or by failure of the child or parent to object when the contents of a communication are demanded…”
  43. M.S.A. § 595.02, subd. 1(g): “A…psychologist, consulting psychologist, or licensed social worker engaged in a psychological…assessment or treatment of an individual at the individual's request shall not, without the consent of the professional's client, be allowed to disclose any information or opinion based thereon which the professional has acquired in attending the client in a professional capacity, and which was necessary to enable the professional to act in that capacity…”
  44. M.S.A. § 595.02, subd.(j): “Licensed chemical dependency counselors shall not disclose information or an opinion based on the information which they acquire from persons consulting them in their professional capacities, and which was necessary to enable them to act in that capacity…”
  45. M.S.A. § 595.02, subd.(k): “Sexual assault counselors may not be compelled to testify about any opinion or information received from or about the victim without the consent of the victim. However, a counselor may be compelled to identify or disclose information in investigations or proceedings related to neglect or termination of parental rights…"Sexual assault counselor" for the purpose of this section means a person who has undergone at least 40 hours of crisis counseling training and works under the direction of a supervisor in a crisis center, whose primary purpose is to render advice, counseling, or assistance to victims of sexual assault.”
  46. M.S.A. § 595.02, subd.(g): “A…licensed social worker engaged in a…social assessment or treatment of an individual at the individual's request shall not, without the consent of the professional's client, be allowed to disclose any information or opinion based thereon which the professional has acquired in attending the client in a professional capacity, and which was necessary to enable the professional to act in that capacity.”
  47. Unlike the physician’s privilege, neither statute nor case law provides a test for determining these elements. However, all of these categories are widely analogized to the physician’s privilege, and the same test is appropriate, namely, the client must be seeking professional aid, and the information must be necessary for dispensing the requested aid. See State v. Staat, 291 Minn. 394, 398, 192 N.W.2d 192, 196 (1971).
  48. M.S.A. § 595.02, subd.2(a): The exceptions relating to physicians, surgeons, registered nurses, psychologists, and social workers “[S]hall not apply to any testimony, records, or other evidence relating to the abuse or neglect of a minor in any proceeding…arising out of the neglect or physical or sexual abuse of a minor…”