Privileged communications, evidence, reform
The privileged communications rules may prevent a party to litigation from bringing into evidence matters he wishes to bring. His inability to do so may lead to a result less favourable to him than that which he would have obtained had a claim of privilege not barred his way. This different result may not only put him in a worse position than he would otherwise have been in, but may have harmful consequences for others as well, consequences which may be too subtle even to detect at the time the privilege is exercised. How likely is it that the privileged communications rules will lead to such unfortunate consequences? In this connection, three mitigating factors may be mentioned: first, the privileged communication would have been of insufficient weight to affect the result in some of the cases in which privilege keeps it out; secondly, the party against whom a claim operates may have other admissible evidence which will prove the point he has been foreclosed from making by the claim of privilege; thirdly, if compelled to testify regarding a confidential communication, an unwilling witness may perjure himself and, if his evidence is believed, the party extracting it may actually have worsened his position rather than bettered it by attempting to exploit the absence of a privilege for the communication.
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Leslie Katz, “Privileged Communications: A Proposal for Reform”, Comments, (1973-1974) 1:3 DLJ 597.