Chapter 6
Judicial Notice and
Privileges of Witnesses
1
SCIENTIFIC AND TECHNOLOGICAL
FACTS RECOGNIZED BY JUDICIAL
NOTICE
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Judicial notice can be taken of a court ruling
that a scientific technique was reliable.
An Ohio court of appeals held in the 1973
case of State v. Brock that “courts may take
judicial notice of any scientific fact which may
be ascertained by reference to a standard
dictionary or is of such general knowledge
that it is known by any judicial officer”
2
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Courts must be cautious when taking
judicial notice as often a particular fact
may not be of general knowledge and
that a source for the accurate
determination of the fact may not be
easily found (see State v. Gagnon, N.H.,
2007).
3
Frye & Daubert Rules
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Today, the Frye Rule is used in many
states.
This rule essentially says that if the
science is generally accepted by the
scientific community, the procedure
is admissible.
The Daubert Rule is more restrictive
and is the “Federal” standard
although some states do use it
instead of Frye.
4
THE PRIVILEGE AGAINST SELFINCRIMINATION

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The Fifth Amendment privilege against selfincrimination is the only privilege that has
been incorporated into the U.S. Constitution
and the constitutions of many states.
The U.S. Constitution requires “that the
government seeking to punish an individual
produce the evidence against him by its own
independent labor rather than by the cruel,
simple expedient of compelling it from his
own mouth.”
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AREAS WHERE THE FIFTH AMENDMENT
PRIVILEGE AGAINST SELFINCRIMINATION DOES NOT APPLY
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The Fifth Amendment privilege against selfincrimination applies only to evidence of a
communicative or testimonial nature.
It does not apply when only physical evidence is
sought and obtained.
The privilege against self-incrimination does not apply
in the following circumstances:
 The withdrawal of blood and the use of the blood as
evidence to show that the defendant was driving a
vehicle while intoxicated
 The use of a handwriting exemplar or sample
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AREAS WHERE THE FIFTH AMENDMENT PRIVILEGE
AGAINST SELF-INCRIMINATION DOES NOT APPLY
(Cont.)
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Compelling the accused to exhibit his person for
observation, as in a lineup or showup.
To make a voice exemplar or sample.
For identification purposes, to put on a stocking
mask at trial and permit a witness to testify as to
similarity to the masked robber, or to dye his/her
hair to the color it was at the time of the offense.
A witness could testify that the defendant was
compelled to put on a shirt and it fit him.
Where immunity has been granted and the person
is compelled to testify or agrees to testify as part of
a plea agreement.
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AREAS WHERE THE FIFTH AMENDMENT PRIVILEGE
AGAINST SELF-INCRIMINATION DOES NOT APPLY
(Cont.)
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Where the incrimination is of others and is not selfincrimination.
Where the public interest in protecting children from
abuse outweighs Fifth Amendment privilege.
U.S. Military personnel and law enforcement officers
are obligated to report illegal conduct of their fellow
officers and military associates accept when the
military service person or law enforcement officer had
also been a party to the crime.
Where there has been a voluntary, intelligent waiver
of the privilege.
8
Fifth Amendment Problems

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The privilege against self-incrimination has
always applied to criminal cases.
This is controversial, as the witness may
also be subject to civil liability if answering
questions.
In addition, not invoking this privilege in
state court could lead to prosecution in
federal court and vice versa.
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Another complication occurs in regard to foreign
jurisdiction.
The Supreme Court held in U.S. v. Balsys (1998)
that there was no way to know if a foreign
country would force the witness to testify.
Therefore, invoking the Fifth would not
necessarily protect the witness, but could harm
the U.S. government.
So, a witness in this situation could be
compelled to testify.
10
RECENT EXAMPLES WHERE THE FIFTH
AMENDMENT PRIVILEGE AGAINST SELFINCRIMINATION DOES APPLY

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Where the witness insists she is innocent of any crime
To refuse to answer specific questions on a tax return
(but not to refuse to file a return altogether)
When a person is questioned by a probation officer,
so long as the officer makes it clear that answers to
the questions are mandatory, not optional
Where a defendant remains silent under questioning,
the prosecution is prohibited from introducing
evidence of that silence at trial
11
THE ATTORNEY-CLIENT PRIVILEGE
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The purpose of the attorney-client privilege is
to encourage full and frank communication
between attorneys and their clients and
thereby promote broader public interests in
the observance of law and administration of
justice
Many states have statutes regulating the
attorney-client privilege
Other states and the federal government use
the principles of common law
12
REQUIREMENTS OF THE ATTORNEYCLIENT PRIVILEGE
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The client must seek the professional legal
services of an attorney and have the intention
of establishing an attorney-client relationship.
It is generally held that the privilege applies
only to confidential communications made
within the attorney-client relationship.
The necessary presence of the attorney’s
secretary, law clerk, or other employee during
a conference in the attorney’s office would
not cause a court to hold that the
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communications were not privileged.
LIMITS OF THE ATTORNEY-CLIENT
PRIVILEGE
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There are limits to the attorney-client privilege
and it does not apply to the following:
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Disclosures about future wrongdoing
Physical evidence—most courts hold that an attorney
has a legal and ethical obligation to deliver physical
evidence of a crime to the police
The general rule is that the attorney-client
privilege does not protect the name and
identity of a client or the amount of the
attorney fee.
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Losing the Attorney-Client Privilege
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This privilege often involves documents or
other written materials.
The management of these materials by
the attorney or client can result in a
waiver of the privilege.
See U.S. v. Ary and In re Grand Jury
(Attorney-Client Privilege) D.C. Cir., 2008
in the text.
15
Losing the Attorney-Client Privilege,
cont’d

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The crime-fraud exception was upheld in
In re Grand Jury Subpoena (2nd Cir.,
2006), even though the attorney was
unaware that the client was seeking
advice about committing a crime.
The court held that it was the client’s
intent.
16
THE HUSBAND-WIFE PRIVILEGE
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A spouse can not be forced to testify against the
other spouse.
All states and the federal government use the
husband-wife privilege (also known as the marital
privilege).
The requirements that must exist to use the
privilege in federal courts are:
 The marital confidential communications
privilege prohibits testimony regarding
private intra-spousal communications and
extends only to words or acts that are
intended as a communication to the other
spouse.
17
THE HUSBAND-WIFE PRIVILEGE
(Cont.)
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The communication must also occur during a time
when the marriage is valid under state law and the
couple is not permanently separated.
The communication must be made in confidence.
In other words, it cannot be made in the presence
of a third party and the communicating spouse
cannot intend for it to be passed on to others.
18
Husband-Wife Privilege (cont.)

However, only the contents of the
conversation are protected, not the fact
that the communication occurred.
19
PARTNERSHIP-IN-CRIME EXCEPTION
TO THE HUSBAND-WIFE PRIVILEGE
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The husband-wife privilege does not extend to
situations where the wife and the husband are
committing a crime together.
Examples of the partnership-in-crime exception
(also known as the joint-criminal-participation) to the
husband-wife privilege are:
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Both the wife and husband were involved in growing
marijuana
Where both spouses were involved in trafficking cocaine
When the husband ran off with his secretary and the angry
wife provided the Internal Revenue Service with
information of criminal tax evasion
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WHEN ONE SPOUSE COMMITS CRIMES AGAINST
THE OTHER SPOUSE OR CHILDREN
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Spouses can testify in criminal courts and
divorce courts of beating and other violence
either against the spouse or children.
Some states limit this exception to personal
violence committed against the victim spouse.
At least one state (Kentucky) held that the
exception of violence is applied to persons
outside the immediate family of the accused.
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THE PHYSICIAN-PATIENT PRIVILEGE
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The physician-patient privilege did not exist at
common law and therefore exists only in states that
have created such a privilege by statutes.
It is considered to be a very limited privilege
subjected to the interpretation of the statutes of each
state.
It is for the protection of the patient, not the
physician.
It may be waived by the patient or a representative
of the patient.
Whether the privilege exists after the death of the
patient would depend upon the laws and court
rulings of the state.
22
THE REQUIREMENT OF THE
PHYSICIAN-PATIENT RELATIONSHIP
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For the privilege to exist, the patient must
have consulted the physician for treatment or
diagnosis for possible treatment.
If the physician calls in other medical doctors
to aid in the treatment or diagnosis, any
disclosures made to any of the physicians are
also privileged.
It does not apply when a suspect or a
defendant is being examined at the request of
a court, a law enforcement agency, or a
prosecutor.
23
Physician-Patient Relationship,
cont.

Read State v. Poetschke (Minn. App.,
2008) in text for the driving under the
influence decision that impacts the
physician-patient privilege.
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THE PSYCHOTHERAPIST-PATIENT
PRIVILEGE
No psychotherapist-patient privilege existed in
common law; many states have created this
privilege by statute.
The patient would have to seek treatment or
diagnosis of a licensed psychotherapist for
treatment of mental or emotional conditions,
including drug addiction.
The conditions and limitations of this privilege
are similar to the physician-patient privilege.
The privilege is not available where the
patient is charged with child sexual abuse.
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THE “DANGEROUS PATIENT” EXCEPTION
TO THE PSYCHOTHERAPIST-PATIENT
PRIVILEGE
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In 1976 with the case of TARASOFF v. Regents of
the University of California, states began
adopting a “duty to protect” rule.
Once a psychotherapist discovers that a patient poses
a serious threat to a third person, the psychotherapist
must exercise reasonable efforts to protect that
person.
California has, as part of its evidence code, adopted an
exception to the psychotherapist-patient privilege that
communications by a dangerous patient are not
privileged.
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THE SEXUAL ASSAULT COUNSELORS’
PRIVILEGE AND PRIVILEGES COVERING
OTHER COUNSELORS
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States often have statutes protecting private
communications of persons receiving
counseling.
There is an absolute privilege protecting
not only testimony but also the production of
documents from the sexual assault counselor,
covering the history of persons protected by
the privilege.
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THE CLERGY-PENITENT PRIVILEGE
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About two-thirds of the states have statutes defining
the clergy-penitent privilege, with a few other states
recognizing the privilege by court decisions.
A clergyperson would not have to be engaged full
time in the profession, but the definitions are not so
broad to include all self-denominated “ministers.”
The privilege establishes a legal protection against
being forced to testify on a witness stand about
confidential disclosures made to them.
28
THE PRIVILEGE NOT TO REVEAL THE
SOURCE OF INFORMATION
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The newsperson usually contends that the news
reporter’s privilege, based on the First
Amendment, provides a privilege against such
disclosure. In 2007, the house of representatives
passed a “media shield” law.
The U.S. Supreme Court has held it did not.
There was no generally recognized privilege at
common law, but most states have enacted such a
privilege by statute.
Unless a state has a statute of this type, news
reporters have no general First Amendment privilege
and right not to reveal sources of news articles when
ordered by a court.
29
THE PARENT-CHILD PRIVILEGE
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The 7th Circuit Court of Appeals reviewed these cases
and found that only one federal trial and only one
state appellate court have recognized some type of
parent-child privilege.
Most courts have refused to recognize this privilege.
When recognized, the privileges apply only to prevent
the use of testimony in a judicial proceeding.
30
THE GOVERNMENT’S PRIVILEGE NOT
TO REVEAL GOVERNMENT SECRETS
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The privilege concerning the identity of informants
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To encourage people to provide information, governments
must be able to assure those people providing the
information that their identity will not be disclosed
The common law has always recognized the informant’s
privilege as an essential aid to law enforcement
Many states have enacted statutes defining the privilege,
while other states and the federal government use the
privilege in its common law form
The limits to the informant’s privilege
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THE GOVERNMENT’S PRIVILEGE NOT TO REVEAL
GOVERNMENT SECRETS (Cont.)
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The informant’s privilege is not an absolute
privilege and must give way when there is a
compelling need to protect the rights of the
accused.
If the informant was at the scene of the crime
or participated in the crime, courts hold that
the informant’s identity must be disclosed to
the defense lawyer.
When drugs are found and the defendants
charged, they may demand the name of the
informant to judge the accuracy of the search
warrant.
32
Informant’s Identity

If the identity of an informant is ordered
by a court, the following options are
available:
 Drop the criminal charge against the
defendant, which means that the
defense has won their case because
this is what the defense lawyer seeks
 Disclose the identity of the informant;
if this is practical and goes to trial, the
informant can possibly be a witness 33
THE GOVERNMENT’S PRIVILEGE NOT TO REVEAL
GOVERNMENT SECRETS (Cont.)
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The government’s privilege not to disclose
military of diplomatic secrets vital to national
security
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The U.S. Congress enacted the Classified
Information Procedures Act which recognizes the
power of the executive branch of the federal
government to determine whether classified
information should be disclosed in criminal or civil
trials
The President’s privilege of confidentiality
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THE GOVERNMENT’S PRIVILEGE NOT TO REVEAL
GOVERNMENT SECRETS (Cont.)

Confidential communications between the president
and the President’s immediate advisors:
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The President and those who assist him must be free
to explore alternatives in the process of shaping
policies and making decisions, and to do so in a way
many would be willing to express except privately
These are the considerations justifying a
presumptive privilege for presidential
communications
The privilege is fundamental to the operation of
government and inextricably rooted in the
separation of powers under the Constitution
The court held that the privilege is a qualified
privilege and would give way should a party to a
legal action show a great need for relevant evidence
that is protected by the privilege
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THE GOVERNMENT’S PRIVILEGE NOT TO REVEAL
GOVERNMENT SECRETS (Cont.)
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The secrecy of grand jury proceedings as a privilege
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The Federal Rules of Criminal Procedure forbid disclosure
of “matters occurring before a grand jury” and
provide that violations can be punished as contempt
of court (Rule 6[e]).
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According to the grand jury secrecy requirements, those
serving on a grand jury cannot disclose proceedings
and deliberations by that body.
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Some of the reasons given for the historic use of secrecy
are:
 To encourage and protect the independence and
freedom of deliberations of grand juries
 To protect the reputations of people who are not
indicted for criminal offenses but were considered
36
THE GOVERNMENT’S PRIVILEGE NOT TO REVEAL
GOVERNMENT SECRETS (Cont.)
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To prevent people who are to be indicted from
fleeing because they had information of the
coming criminal charges
To encourage witnesses to testify freely
To encourage members of the grand jury to
deliberate freely, knowing that what was said
will not be made public
37