MASSBAR
The National Trial Lawyers

Privileges

Privileges and Disqualifications

Witnesses in criminal cases are often reluctant to testify in court against defendants. However, unless a witness has a privilege to refuse to testify, the Commonwealth can compel that witness’ testimony. Below are some of the most common privileges asserted by potential witnesses to avoid testifying against criminal defendants in Massachusetts.

Fifth Amendment Privilege

Oftentimes a witness says he will “take the fifth” and refuse to testify. The Fifth Amendment to the United States Constitution does not apply to witnesses who simply don’t want to testify. The privilege applies only to those witnesses whose testimony might be self-incriminating. The Fifth Amendment states the government cannot force a witness to testify about facts that might incriminate him in a crime. Suppose there is a bar fight between two men. One of the men (soon to be the defendant) punches the other man (the victim) repeatedly in the face. The victim tries to defend himself by pushing the defendant away from him. The victim has a Fifth Amendment privilege because if he testified he pushed the defendant – even in self-defense – the Commonwealth could charge him with an assault and battery against the defendant. Most alleged victims in domestic violence cases have Fifth Amendment privileges because most women who are beaten fight back to some extent. Prosecutors often claim these women don’t have true Fifth Amendment privileges because “the Commonwealth obviously won’t charge a battered woman with a crime for defending herself.” These statements demonstrate a misunderstanding of the Fifth Amendment. The question is not whether it is likely the witness will be charged with a crime, but rather whether it is possible the witness will be charged with a crime.

If a witness might have a Fifth Amendment privilege, the defense attorney will ask the judge to appoint an independent attorney to advise the witness of her rights. If the witness is protected by the Fifth Amendment, she then has a choice to make – she can assert her privilege and refuse to testify, or she can waive the privilege and testify even if she might incriminate herself. Issues related to Fifth Amendment privileges are litigated every day in Massachusetts courtrooms.

Marital Privilege

Under most circumstances, a witness who is married to the defendant can refuse to testify against him in a criminal trial. The defendant and the witness need to be married at the time of the trial and many judges require the non-testifying spouse to produce a copy of the marriage certificate to prove she is married to the defendant. The privilege is held by the witness, which means if a wife chooses to waive her privilege and testify against her husband, she is permitted to do so. The privilege does not apply to grand jury proceedings (which means a prosecutor can force one spouse to testify against another spouse before the grand jury), or criminal cases where the defendant is charged with child abuse.

Parent-Child Disqualification

A parent is not permitted to testify against his or her minor child, and a minor child is not permitted to testify against a parent in Massachusetts at trial or in front of the grand jury unless the alleged victim of the crime is a family member or lives in the same household.

Attorney-Client Privilege

A client has a privilege to prevent his attorney from disclosing confidential communications that were exchanged during the course of the attorney’s representation of the client. The privilege survives the client’s death, which means the client’s estate may still assert the privilege even after the client dies. The privilege is inapplicable if the client was seeking the services of the attorney to commit some sort of crime.

Psychotherapist-Patient Privilege

A patient has a privilege to prevent his psychotherapist from disclosing communications exchanged during the diagnosis or treatment of the patient’s mental health condition. This privilege applies to one-on-one counselling, marriage counselling, and family therapy. If the psychotherapist believes the patient needs hospitalization for his mental illness, or if the patient is threatening dangerous activity against himself or another person, the privilege does not apply. This type of privilege also applies to social workers.

Interestingly, there is no doctor-patient privilege in Massachusetts, although physicians have a duty to keep their patients’ medical information private (unless a patient consents to disclosure, or disclosure is necessary to address a serious danger to a patient or someone else). A doctor can be sued for damages for unlawfully disclosing private medical information about a patient.

Clergy-Penitent Privilege

A person who makes a confession to a priest or other religious leader or seeks religious advice has a privilege to prevent the clergyman from disclosing the communication. However, members of the clergy are required to report all cases of child abuse.

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