Definition
Privileged communications are statements, disclosures, or exchanges made within a relationship that the law protects from compelled disclosure in judicial or administrative proceedings. The privilege belongs to the relationship, not merely the speaker — and in most recognized privileges, the holder may assert it to prevent the other party from testifying about the communication as well.
Several distinct privileges travel under this umbrella term:
1. Attorney-client privilege. Communications between a client and their attorney made in confidence for the purpose of seeking or providing legal advice. Widely regarded as the oldest and most firmly established of the evidentiary privileges.
2. Spousal/marital communications privilege. Confidential communications made between spouses during a valid marriage. Distinct from the separate testimonial privilege (the right of a spouse not to testify against the other). Most jurisdictions recognize both, but they operate differently and survive the marriage differently.
3. Physician-patient privilege. Confidential disclosures made by a patient to a healthcare provider in the course of diagnosis or treatment. More statutory than common-law in origin; not universally recognized.
4. Clergy-penitent privilege. Communications made in confidence to a religious minister in their spiritual capacity. Recognized in most U.S. jurisdictions by statute.
5. Therapist-patient privilege. Distinct from the physician-patient privilege in many jurisdictions; specifically protects communications with licensed mental health professionals.
6. Governmental and executive privilege. Communications within the executive branch shielded from disclosure on grounds of governmental function. See the Constitutional Law Encyclopedia entry for treatment of presidential communications specifically.
All recognized privileges share a common structure: a qualifying relationship, a communication made in confidence within that relationship, and an absence of waiver.
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Common Language
Modern common usage (Wiktionary): "Privileged" generally means enjoying a special advantage or right not available to everyone; a "privileged communication" in ordinary speech might loosely describe any sensitive or confidential exchange.
Historical common usage (Webster's 1913): Webster's defines "privileged" as possessing or enjoying a privilege; a privileged communication was described as one made on an occasion that rebuts the inference of malice ordinarily arising from a defamatory statement — pointing squarely toward defamation law, not evidentiary law.
The gap matters for researchers: the Webster's 1913 usage reflects the defamation-law sense of the term — a "privileged occasion" on which a potentially defamatory statement cannot ground liability. That usage survives in modern law as qualified and absolute privilege in defamation contexts. The evidentiary sense (protecting communications from compelled disclosure in litigation) is a related but distinct doctrine. Older sources may use "privileged communications" in the defamation sense, and conflating the two produces real research error.
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Common Confusion
Three distinct doctrines share the "privileged communications" label or closely related language, and researchers must keep them separate:
Evidentiary privilege vs. defamation privilege. Evidentiary privilege bars compelled disclosure in legal proceedings. Defamation privilege (absolute or qualified) bars or limits civil liability for the content of a statement made on a protected occasion — a legislative speech, a judicial filing, a job reference. These are separate bodies of law with separate elements and separate waiver rules.
Attorney-client privilege vs. work product doctrine. Attorney-client privilege protects confidential attorney-client communications. Work product doctrine (sometimes called the work product privilege) protects an attorney's mental impressions and litigation preparation materials. They are frequently invoked together but are analytically distinct and have different standards for overcoming them.
Privilege vs. confidentiality. Many professional relationships impose a duty of confidentiality by statute or ethics rules. That duty does not automatically create an evidentiary privilege. A professional may be ethically obligated not to disclose information voluntarily while still being legally compellable to testify about it in court if no recognized privilege applies.
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Core Elements
For a communication to qualify as privileged in the evidentiary sense, courts generally require:
1. A qualifying relationship. The communication must arise within one of the recognized privilege categories (attorney-client, spousal, etc.). Unlisted relationships do not automatically qualify.
2. Confidentiality. The communication must have been made with a reasonable expectation that it would not be disclosed beyond the privileged relationship. Presence of unnecessary third parties typically destroys the privilege.
3. Purpose alignment. The communication must serve the function the privilege is designed to protect — legal advice for attorney-client privilege, spiritual counsel for clergy-penitent privilege, and so forth. A casual social conversation with one's attorney is not privileged simply because the speaker is a client.
4. No waiver. The holder of the privilege must not have voluntarily disclosed the communication or otherwise acted inconsistently with maintaining confidentiality. Waiver is often the central battlefield in privilege disputes.
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Why It Matters in Research
The term "privileged communications" operates across at least three distinct legal contexts — evidence law, defamation law, and constitutional law — and historical sources often use it without specifying which. Bouvier's treatment is weighted toward the defamation and character-reference context, consistent with 19th-century legal preoccupations. Researchers using older dictionaries as a starting point should verify which sense of privilege is operative in the materials they are examining.
In historical sources, the spousal privilege often appears as a single undifferentiated rule when in fact two privileges — the testimonial privilege and the marital communications privilege — have long coexisted with different holders, different durations, and different waiver mechanics. The distinction is frequently collapsed in older treatises.
The attorney-client privilege, though ancient, was significantly developed through 20th-century case law. Historical dictionary sources predate much of the modern doctrine on corporate clients, the crime-fraud exception, and selective waiver. Do not rely on pre-20th-century definitions to understand the current scope.
For researchers examining governmental communications, the Constitutional Law Encyclopedia entry on executive privilege covers the presidential communications doctrine separately from the deliberative process privilege — a distinction that is essential and often missing from general legal dictionary treatments.
Jurisdictional variation is significant for physician-patient and therapist-patient privileges, which are statutory in origin and vary considerably across states. A communication that is privileged in one jurisdiction may be compellable in another.
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Historical Dictionary Support
Bouvier's Law Dictionary, as reflected in the available source material, addresses privileged communications primarily through the lens of defamation and commercial character references — specifically, the question of whether a recommendation letter given for credit purposes is protected against a conspiracy prosecution when it is false. This reflects the dominant 19th-century usage of the term, where "privileged communication" most often meant a statement shielded from civil liability for defamation on account of the occasion on which it was made.
What Bouvier's does not address in the available excerpt is the evidentiary privilege doctrine — the rule shielding communications from compelled testimony. This gap is instructive: it confirms that the evidentiary privilege framework, as a consolidated and labeled body of law, developed primarily through case law and treatise writing in the late 19th and 20th centuries. Researchers should not expect Bouvier's or similarly dated sources to reflect the modern multi-privilege taxonomy.
Historical sources generally treat the attorney-client privilege with the most elaboration; clergy-penitent and therapist-patient privileges are largely absent from pre-20th-century dictionaries because the statutory basis for those privileges had not yet been developed.
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Jurisdictional Note
The physician-patient and therapist-patient privileges are creatures of statute and vary substantially by state. Federal courts, applying federal common law in federal question cases, do not recognize a general physician-patient privilege, though they do recognize the psychotherapist-patient privilege following the Supreme Court's ruling in Jaffee v. Redmond (1996). Researchers working across federal and state materials must be precise about which privilege they are tracing and in which court system.
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Encyclopedia Cross-Reference
Spousal Privileges — Testimonial Privilege and Marital Communications (The Law Mind Civil Procedure & Evidence Encyclopedia)
Executive Privilege — Presidential Communications and Deliberative Process (The Law Mind Constitutional Law Encyclopedia)
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