Privilege and Procedure

United States law recognizes a collection of “privileges” that permit a person to refuse to testify about certain information during court proceedings, related discovery proceedings, and (in some case) official interrogations. Questions surrounding the existence, scope, application, and proper invocation of these privileges are complex and vary by jurisdiction, and only a retained attorney can definitively answer them in a specific factual circumstance involving the interference of a public educator, child welfare official, or law enforcement officer.

Alternative educators who are facing serious legal charges, a search or seizure, or other legal actions should in most cases seek out the customized assistance of an attorney as soon as possible before offering written or oral statements, admissions, consents of any kind, or testimony. When intervention by an attorney is not possible under exigent circumstances because of coercion or threatened coercion by government officials, an alternative educator and all family members should in most cases 1) conspicuously document a request by each family member was made for immediate access to their own attorney, 2) conspicuously document the fact that any cooperation or “consent” is involuntary, under protest, and with a reservation of all legal rights that may exist, 3) conspicuously document a personal understanding, based upon a representation made by the government official, that no other legal alternative course of action is available except immediate submission to or cooperation with the government official’s demand, 4) conspicuously document any government official denial or interference with the efforts or requests, and 5) contact an attorney as soon as possible with a complete account of the incident.

In many jurisdictions a parent may retain a private attorney to supplant a public guardian ad litem in the representation of the parent’s seized child. Under such circumstances, the private attorney’s duty of loyalty and confidentiality must be to the child even though the parent is paying the attorney’s fees. Just as private attorneys are usually preferable to public defenders in criminal cases, private attorneys are usually preferable to guardian ad litem representation in terms of defending a child’s best interest.

Alternative educators do not have an obligation to cooperate when their homes are targeted for searches or their children are targeted for seizure. In the United States, searches and seizures may only be permissibly conducted with a warrant, with genuine voluntary consent, or pursuant to some specific and narrow exigent circumstances which have been identified in United States federal court Fourth Amendment cases. Evidence collected in violation of the Fourth Amendment is usually excluded in criminal cases. Illegal searches and seizures and other violations of federal rights can also form the basis of a civil rights lawsuit under 42 U.S.C. 1983. In general, an alternative educator should expressly tell government officials that there is no consent for any search, seizure, or interrogation until the alternative educator can speak with an attorney. However, it is usually unwise to physically interfere with a government official, even if that official is conducting an illegal search or seizure. Instead, contact an attorney as soon as possible after the illegal activity.

Some privileges are protected in federal question cases (cases based upon federal law) by the United States Constitution or by federal court precedent – including attorney-client privilege, the privilege for spousal communications, the physician-patient privilege, the psychotherapist/social worker-client privilege, and the Fifth Amendment privilege against self-incrimination. In civil “diversity” cases, where a litigant from one state is suing another litigant residing in a second state using a theory based upon state statutes or state common law, Federal Rule of Evidence 501 provides that the federal court will recognize the same privileges recognized by the state providing the underlying law for deciding the case. State courts apply state law and privileges afforded by state law, along with the privilege against self-incrimination protected by the Fifth and Fourteenth Amendments to the United States Constitution.

States vary widely in the number and scope of privileges they recognize. Listed below, however, are the privileges most likely to be recognized by the law of a particular state, and a description of the general, typical scope of the common privileges. Sharing privileged information of any kind with or around third parties may waive any protection for the confidential communication. The description of privileges is for the general education of the reader, not to provide definitive guidance or legal advice.

1) Accountant-Client Privilege applies to confidential communication made to an accountant with an intent to obtain financial advice or financial services. Only a limited number of jurisdictions have such a privilege in any form, and this privilege may be further narrowed or eliminated in many jurisdictions due to the Enron/Arthur Anderson accounting scandal. Communications made to facilitate a financial crime with the help of the accountant are generally not protected. Disclosures of details concerning intra-family abuse or assault are rarely protected.

2) Attorney-Client Privilege applies to confidential communication made to an attorney with an intent to obtain legal advice or legal services. Disclosures of details concerning intra-family abuse or assault are rarely protected, and often an attorney is required to report any sign or suspicion of abuse.

A closely-related protection, the work-product rule, protects against the disclosure of documents prepared by an attorney for his own use in anticipation of litigation for a client. The work-product rule does not allow an attorney to withhold a document or other items originating from some other person (or from the client) which constitute direct evidence of a crime (e.g. a forged check handed over to an attorney by the client is not protected, but the attorney’s own notes about the forged check would be).

3) Clergy -- Penitent Privilege applies to confidential communication made to a cleric with an intent to obtain spiritual advice or clerical services. Disclosures of details concerning intra-family abuse or assault are rarely protected, and often a cleric is required to report any sign or suspicion of abuse. Some recent efforts have been made to narrow or eliminate the privilege in some jurisdictions.

4) Husband -- Wife Privilege principles vary depending upon whether the underlying matter is A) criminal or civil, B) in federal court or state court, and C) related to spousal immunity against any testimony, or is only being utilized to prevent a spouse from specifically testifying about a confidential marital communication (but not to stop spousal testimony about other facts).

First, as a matter of spousal immunity, a spouse may not be compelled to testify against the other spouse at all in a criminal matter during any time-span when the two spouses are actually married (spousal testimony may be compelled after a divorce). In a criminal matter in a federal court or a California court, a spouse may voluntarily testify against the other spouse, even over the objection of the disadvantaged spouse. In a criminal matter in most state courts, a spouse may not voluntarily testify against the other spouse if the other spouse objects.

Second, and as an entirely separate principle from spousal immunity, either spouse may prevent disclosure of a confidential communication made during the marriage (but not a communication uttered before marriage or after a divorce), in a civil, criminal, federal, or state case. The spousal communication privilege applies even if the spouse’s testimony about the communication would transpire after a divorce, so long as the communication itself was uttered during the marriage.

Disclosures of details concerning intra-family abuse or assault are rarely protected by any privilege, and often a spouse is required to report any sign or suspicion of child abuse by the other spouse to avoid facing criminal prosecution.

5) Journalist Privilege applies to confidential information provided to journalists from confidential sources. However, the privilege is limited in scope, exists in only about half of the states, is not recognized in federal-law cases, and can be invoked only by the journalist. The privilege typically does not protect a source who communicates with a journalist but expects source identy or off-the-record information to be kept confidential.

6) Physician-Patient Privilege applies to confidential communication made to a physician (or, sometimes, a nurse, dentist, or other medical provider) which is medical in nature and is necessary to help the physician render medical treatment or assistance to the patient disclosing the information.

Not all states recognize this privilege, and details concerning an underlying accident or incident of abuse which caused an injury are often not protected, and often a physician is required to report any sign or suspicion of abuse.

7) Privilege against self-incrimination under the Fifth Amendment of the United States Constitution applies to prevent a witness from being compelled to answer any question which would subject that witness to personal criminal incrimination or lead to evidence which would tie the witness personally to commission of a crime. However, the privilege reliably applies only to comments or testimony made after a government official has 1) denied freedom of movement in some way, particularly after an arrest, and 2) solicited the comment or testimony by asking for a response to a question. An unsolicited remark or a remark made after a Miranda warning has been given by the official (“you have the right to remain silent”) will not be protected by the privilege.

A closely-related protection arises when a person is denied freedom of movement by government officials (usually police) and then requests to speak with the person’s attorney. If such a request is made by a detained person before or after a Miranda warning, questioning must cease and the person is not obligated to answer any additional questions of any kind until the person speaks with their attorney. This protection is particularly effective during emergencies and can be invoked by both minors and adults to stop interrogation, establish communication necessary for an adequate legal defense, and retroactively exclude certain ill-gotten “evidence” obtained in defiance of the restriction.

8) Psychotherapist/Social Worker-Client Privilege applies to confidential communication made to a psychotherapist/social worker with the intent to obtain advice or services of a professional nature. Disclosures of details concerning intra-family abuse or assault are rarely protected, and often a therapist is required to report any sign or suspicion of abuse.

Note that most of the privileges listed above are expressly abrogated if the communication admits or implicates child abuse, or if the relevant professional suspects that child abuse may have occurred.

Alternative educators, who are often harassed with theories of “child abuse” or “educational neglect,” should, in absence of specific legal advice to the contrary, operate under the general assumption that their communications can be used against them in legal proceedings whenever they speak to an accountant, attorney, cleric, spouse, law-enforcement officer, social worker, therapist or educator about anything that might be even remotely related to any form of child abuse or spousal abuse. Indeed, many of those professionals may be legally required to report any such communication or incident, even if the professional does not want to submit a report or does not actually believe that any abuse truly occurred. Of course, if a neighbor or professional reports the alternative educator for suspected child abuse, the anonymous tipster typically enjoys absolute privilege and protection even if the allegation is without a reasonable basis or appears to be motivated by animus.

Considerable controversy has attended the modern laws which have trumped traditional privileges in order to compel professionals to report possible instances of abuse. On the one hand, the newer laws are motivated by discomfort with the notion that any professional would refrain from instantly intervening to stop a potential instance of child abuse. On the other hand, many critics contend that the genuine abusers will simply refrain from approaching any professional “voice of reason” whatsoever. The bypassed professionals might otherwise be in a position to help the abuser (or the rest of the family) to identify and alter the pattern of misconduct. The hidden cost, critics argue, is that more children will be abused because dysfunctional families now have nowhere to turn for practical help.

The battered woman scenario is particularly problematic. A woman who is battered by her husband or significant other, and who has children who are likewise being abused by the same person or by other violent individuals, often faces a terrible dilemma. If she approaches an attorney, cleric, relative, law-enforcement officer, therapist, or educator about her plight or the need for child services, the condition of child abuse will often be reported to child social services immediately pursuant to mandatory reporting statutes. The woman will often be subsequently deprived of custody or access to her own children. Her own requests for help may be used to deprive her of child custody, place her children in an even more dangerous foster-care environment, or to bring criminal charges against her as an accessory to the abuse. On the other hand, if the woman does not talk to anyone, the pattern of abuse may continue unabated, the children may be deprived of care they really need, and the woman may face more severe criminal punishment or deprivation of custody because she allowed the situation to continue.

Anecdotal evidence suggests that most alternative educators abhor bona fide child abusers, but favor expansive protection for traditional privileges and criminal procedure prerogatives. This preference is particularly pronounced when the alleged abuse is of a subjective “emotional,” “mental,” or “educational” nature, rather than clear physical or sexual abuse. It appears most alternative educators also feel that the same substantive standards for abuse and liability should be applied to public educators, social workers, professionals, and parents. Shield laws and sovereign immunity often operate to accommodate abuse in public schools and child welfare agencies that would not be tolerated by government officials within the ambit of alternative education.

See also Privacy for Alternative Educators.