Massachusetts Evidentiary Privileges


This book describes in detail the Massachusetts law of evidentiary privileges, as well as related disqualifications and protections. It also sketches out the federal law of evidentiary privileges, with emphasis on cases from the First Circuit Court of Appeals and the U.S. District Court for the District of Massachusetts, to point up differences and similarities with Massachusetts law.

An evidentiary privilege entitles the privilege holder to withhold competent evidence and, in some circumstances, to prevent others from revealing such evidence. The privilege is granted when the protected interest is considered important enough to outweigh the concern with determining the truth. The privilege holder need not be a party to the proceeding in question. Unlike a disqualification, a privilege can be waived.

Privileges are often intended to preserve confidential relationships. These may be personal, such as the relationship between spouses and, to a more limited extent, parent and child. But interpersonal intimacies are not the main focus of privilege law. More often, privileges are rooted in professional relationships and support institutional interests in encouraging laypeople to communicate in confidence with professionals. For example, the attorney-client privilege and the mediator's privilege support the legal profession and the legal system. The many privileges protecting a patient's relationship with a counselor, such as a psychotherapist or a social worker, protect those who provide psychological counseling. The religious privilege for communications with members of the clergy supports religious institutions. The limited privilege for people who do research for publication protects the press and the universities. The informer privilege furthers law enforcement interests. Resolving questions about the scope of these privileges often raises the question whether to conceive the privilege as encouraging specific confidential communications or instead as protecting a relationship from government intrusion.

Other privileges exist quite independently of confidential communications and originate in the value society places on safeguarding certain zones of privacy and autonomy. These include the privileges for political votes and for trade secrets, but the most important example is the privilege against self-incrimination, which restricts the government's ability to compel confessions from private citizens.

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