Also known as: witness privilege · privileges of witnesses · witness's privilege · testimonial privilege
Written by attorneys · grounded in primary & secondary sources — see below
A right allowing a witness to refuse to answer questions or produce evidence when doing so would violate a recognized privilege such as the marital communications privilege or the privilege against self-incrimination. The right is governed by common-law principles as interpreted by federal courts in light of reason and experience.
Laura managed worker housing on Owen's farm and overheard his private kitchen-table admissions about paying workers off the books. When subpoenaed in his federal prosecution, Laura wishes to avoid testifying about those admissions. Owen invokes the marital communications privilege to block disclosure of the confidential statements made during the marriage.
Prism Analytics's general counsel interviewed the chairman and several division heads about possible tax violations. The government later sought those interview notes through an IRS summons. The company asserts the attorney-client privilege of its witnesses to shield the confidential communications from disclosure.
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Carla learned of Daniel's tip-skimming scheme through both on-site observations and private balcony conversations. Subpoenaed in his federal trial, Carla states she is willing to testify about the observations. Daniel objects, but the witness spouse alone controls whether to invoke the testimonial privilege.
A journalist received confidential information from a source about criminal activity and published an article. A grand jury subpoenaed the reporter to identify the source. The reporter's claim of privilege to refuse disclosure was rejected absent a compelling governmental interest showing otherwise.
Police relied on a confidential informant to obtain a search warrant leading to Patrick Phan's arrest. At a suppression hearing, defense counsel seeks the informant's identity. The government asserts the privilege of a witness to protect the informant's identity from compelled disclosure.
Officers seized evidence from Penelope Price's home without a valid warrant. At trial the government offers the evidence through a witness who observed the items. The defense seeks to exclude the testimony derived from the unlawful search under applicable constitutional rules.
The witness spouse alone holds the privilege against adverse spousal testimony. The defendant spouse cannot prevent a willing witness spouse from testifying, though either spouse may still assert the separate marital communications privilege to block disclosure of confidential statements.
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No. A witness who testifies about substantive matters does not thereby waive the privilege with respect to questions that relate only to the witness's character for truthfulness. The witness may still refuse to answer such questions if the answers could tend to incriminate.
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Communications between spouses are presumed confidential when made privately during the marriage with no third parties present. The government bears the burden of overcoming that presumption rather than requiring the asserting spouse to prove confidentiality.
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No. The defendant spouse may block only testimony about confidential marital communications. The witness spouse controls the testimonial privilege and may voluntarily testify about non-confidential observations even over the defendant's objection.
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…summonses issued under 26 U. S. C. § 7602." Id. , at 1228, n. 13. II Federal Rule of Evidence 501 provides that "the privilege of a witness . . . shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in light of reason and experience." The attorney-client privilege…