Definition
A privilege is a legal right, exemption, or immunity that excuses a person from an obligation that would otherwise apply — most commonly, the obligation to disclose information, testify, or be subjected to legal process. The term operates across several distinct legal contexts:
1. Evidentiary privilege. A rule of evidence that permits a person to refuse to disclose — and in many formulations, to prevent others from disclosing — confidential communications made within a protected relationship. The classic examples are attorney-client privilege, the spousal privileges, the physician-patient privilege, and the clergy-penitent privilege. The purpose is to encourage full and frank communication within relationships society has deemed worth protecting, even at some cost to truth-seeking.
2. Absolute and qualified privilege in defamation. A defense that shields a speaker or publisher from civil liability for defamatory statements. An absolute privilege applies regardless of the speaker's motive or knowledge of falsity; qualified (or conditional) privilege protects statements made in good faith on occasions of recognized social utility, such as employment references or reports to law enforcement, but may be defeated by showing actual malice.
3. Legislative and official privilege. The constitutional or common law immunity of legislators, judges, and certain executive officers from civil or criminal liability for acts performed in their official capacity. Congressional speech-or-debate privilege is the constitutional exemplar.
4. General sense: special right or advantage. Broader uses survive in procedural law and older equity practice, where privilege could refer to any special right or exemption granted by law — the privilege of a debtor from arrest on process while attending court, for instance.
---
Common Language
Modern common usage (Wiktionary): A special advantage, right, or immunity enjoyed by a particular person or group, often connoting unearned status or social advantage. Also used informally to mean the condition of having greater access to resources or opportunity.
Historical common usage (Webster's 1913): "A peculiar benefit, advantage, or favor; a right or immunity not enjoyed by others or by all; special enjoyment of a good, or exemption from an evil or burden; a prerogative; advantage."
The common meaning — privilege as unearned advantage or social status — has almost nothing to do with the legal meaning. In legal contexts, privilege almost always refers to a specific, recognized exemption from an otherwise applicable duty, particularly the duty to disclose. A researcher encountering "privilege" in a legal source should not read it as a general social observation; it signals a formal legal doctrine with defined elements and recognized exceptions.
---
Common Confusion
Three common conflations:
First, privilege is frequently confused with immunity. An immunity typically bars the action entirely — the person cannot be sued or prosecuted at all. A privilege typically provides a right to withhold information or avoid a particular obligation; the underlying liability or proceeding may still exist. The distinction is meaningful in both evidence and tort law.
Second, in evidentiary contexts, privilege is sometimes confused with incompetency. Under older common law rules, certain persons — spouses, interested parties — were rendered incompetent to testify. Modern law replaced incompetency with privilege: the witness may testify, but holds a right to decline. The shift from competency to privilege is historically significant and affects how older cases should be read.
Third, absolute privilege in defamation is sometimes conflated with qualified privilege. Absolute privilege is a complete bar to liability regardless of bad faith. Qualified privilege can be lost if malice or abuse is shown. Courts and practitioners sometimes use "privilege" alone without specifying which type, requiring the researcher to determine from context which doctrine is at issue.
---
Core Elements
For evidentiary privilege, courts generally apply a four-part framework:
1. A communication. The privilege attaches to communications, not to underlying facts. A party cannot refuse to disclose a fact simply because it was once discussed with an attorney; the privilege protects the communication itself.
2. Made in confidence. The communication must have been intended as confidential and made in circumstances where confidentiality was reasonable.
3. Within a protected relationship. The relationship must be one recognized by law as privileged — attorney-client, spouse-to-spouse, physician-patient, therapist-patient, clergy-penitent, and others depending on jurisdiction.
4. Not waived. Privilege belongs to the holder and may be waived, expressly or by conduct (including voluntary disclosure to third parties). A waiver of privilege is generally not retractable.
---
Recognized Forms
/SUBTYPES
Attorney-client privilege. The oldest and most firmly established evidentiary privilege at common law. Protects confidential communications between attorney and client made for the purpose of legal advice. Survives the death of the client in most jurisdictions.
Spousal privileges. Exist in two distinct forms: (1) the testimonial privilege, which allows a spouse to refuse to testify against the other spouse in a criminal proceeding; and (2) the marital communications privilege, which protects confidential communications between spouses during marriage and survives divorce as to communications made during the marriage.
Physician-patient and psychotherapist-patient privilege. Statutory in most U.S. jurisdictions for general physicians; recognized as a federal common law privilege for licensed psychotherapists following Jaffee v. Redmond (1996).
Clergy-penitent privilege. Protects penitential communications made to a member of the clergy in the clergy's spiritual capacity.
Work product doctrine. Often discussed alongside attorney-client privilege but is technically distinct — it protects materials prepared by or for an attorney in anticipation of litigation, not communications between attorney and client.
Absolute privilege (defamation). Applies to statements made in judicial proceedings, legislative proceedings, and certain official communications. No showing of bad faith defeats it.
Qualified privilege (defamation). Applies to statements made on occasions of recognized social utility. Defeated by proof of malice or abuse of the occasion.
---
Why It Matters in Research
Privilege is one of the most overloaded terms in legal research. A query that retrieves "privilege" without further narrowing will return materials across evidence, defamation, constitutional law, procedural law, and older equity practice simultaneously. Researchers must identify which domain is at issue before reading sources.
The evidentiary privilege landscape has changed substantially over time. Pre-twentieth-century sources reflect the common law's relatively narrow privilege doctrine. Many of the modern recognized privileges — particularly psychotherapist-patient — are either entirely statutory or were recognized by courts only in the twentieth century. Rapalje & Lawrence (1883) reflects a pre-Federal Rules world in which spousal incompetency and privilege were still often conflated and in which physician-patient privilege was not yet uniformly recognized. Do not read historical dictionary entries as reflecting current doctrine.
Jurisdictional divergence is acute. The federal courts follow Federal Rule of Evidence 501, which defers to common law privilege principles as interpreted by federal courts in non-diversity cases, and to state law in diversity cases. Many states have codified specific privileges by statute, and the scope of those statutes varies substantially. A privilege recognized in one jurisdiction may not exist in another.
The holder of the privilege matters for research purposes. In some privileges, only one party holds the right to assert or waive (attorney-client: the client). In others, either party holds a version of the privilege (spousal communications: either spouse in most jurisdictions). Misidentifying the holder creates doctrinal errors.
Waiver doctrine generates significant litigation and should be treated as a distinct research question rather than an assumption. Inadvertent disclosure, subject matter waiver, and selective waiver each have varying treatment across jurisdictions and under the Federal Rules.
---
Historical Dictionary Support
Rapalje & Lawrence define privilege primarily in the evidentiary context as "an exemption from the legal duty to testify, or to produce documents, which certain persons may claim in respect of confidential communications made to them." They organize the discussion around the attorney-client relationship, the spousal privilege, and the privilege against self-incrimination, which they treat as the three primary instances of recognized privilege in American and English law.
Their treatment is accurate as far as it goes, but it is notably incomplete by modern standards. The physician-patient privilege receives only a brief reference, noted as a statutory innovation rather than a common law development — which is historically accurate for the period. The psychotherapist-patient privilege, the social worker privilege, and the federal common law privilege framework developed under Rule 501 are entirely absent, as expected from an 1883 source.
Rapalje & Lawrence treat the spousal privilege primarily as a rule of competency — a wife was incompetent to testify against her husband — rather than a privilege held by either spouse. This reflects the state of the law at the time. The modern reframing of spousal protection as privilege rather than incompetency is not visible in their treatment and is a critical gap for researchers using the historical dictionary as a guide to older cases.
Their defamation coverage of absolute and qualified privilege is more developed than the evidentiary coverage, reflecting the greater maturity of that doctrine at the time of publication.
---
Jurisdictional Note
Federal courts apply a common law framework under FRE 501, developed through judicial decision, with no codified list of privileges. State courts in diversity cases trigger applicable state privilege law. Many states have comprehensive statutory privilege codes that differ in scope from the federal common law. The marital communications privilege, in particular, varies significantly across states as to whether it extends to civil cases, who holds it, and what exceptions apply.
---
Encyclopedia Cross-Reference
civpro_160: Spousal Privileges — Testimonial Privilege and Marital Communications
civpro_161: Psychotherapist-Patient Privilege — Jaffee v. Redmond
civpro_162: Clergy-Penitent and Other Recognized Privileges
---