Can Justice Survive the 'Privilege' of Silence?

Black’s Law Dictionary is considered definitive on the meaning of legal terms. The Dictionary defines “privilege” as “a special legal right, exemption, or immunity granted to a person or class of persons; an exception to a duty.” It usually refers to the legal right to withhold information from authorities or to refuse to participate in judicial proceedings.

Western courts recognize “privilege” in specific cases and to varying degrees. For example, such strong privilege attaches to attorney-client communication that it is considered a prerequisite of justice itself. In R v. Derby Magistrates’ Court (1996), the court found,

The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal profession privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.

Utterances made to the clergy, especially during confession or spiritual counseling, enjoy similarly strong protection as part of the separation of church and state. Doctor-patient privilege exists to a lesser degree because of recent requirements for doctors to report any suspicion of crimes such as domestic violence. A journalist’s First Amendment ‘right’ to protect the identity of sources has been under concerted attack for decades.

One of the most famous types of privilege is ‘spousal immunity’ that, in America, includes two separate legal rights: a communications privilege and a testimonial privilege. The specifics, including exclusions, vary from state to state and in the federal courts. In general, however, the communications privilege protects confidential communications made during a marriage. The testimonial privilege protects one spouse from being forced to testify against the other on the basis of observations; for example, if a spouse accused of embezzlement kept large sums of cash in a shoebox. The purpose of spousal immunity is to draw a line between the private and public sector across which the state cannot step and, so, interfere with marital harmony.

But the idea of legal privileges for any individual or class creates tension within American law. The phrase “equal justice under law” is engraved on the front of the U.S. Supreme Court building, and equal justice presupposes the equal application of law. In short, the American ideal of justice runs counter to legal privilege.


Legal privilege has been part of the common law tradition for centuries; common law refers to the part of the English law that derives from custom and court precedent,not from statutes. Consider spousal privilege. Lord Edward Coke – the foremost jurist of the Elizabethan period – penned what is widely viewed as the first statement of spousal privilege in his book The First Part of the Institutes of the Lawes of England (1628),

it hath beene resolved by the Justices that a wife cannot be produced either against or for her husband, quia sunt duae animae in carne una [for they are two souls in one flesh], and it might be a cause of implacable discord and dissention betweene the husband and the wife, and a meane of great inconvenience.

No one knows the precise genesis of this privilege but it probably had Biblical roots similar to that of many other marital laws. For example, the Bible quotes Jesus as stating, “Therefore what God has joined together, let man not separate.” (King James Bible, Mark X:9.) This had been interpreted as an advisement for the law to avoid turning spouses against each other. By the late 17th century, the spousal privilege was well established.

Coke’s interpretation of common law was particularly important to the American colonies because it coincided with the drafting of their charters. The colonies in America adopted something of a patchwork approach to the law but, overall, they tended toward the common law tradition. In reviewing the book The Common Law in Colonial America: Volume I: The Chesapeake and New England, 1607-1660 by William E. Nelson, George W. Liebmann explained,

New England law [1650] was founded on views resembling the Protestant approach to the Bible…while the Catholic minority in Maryland consciously adopted English common law to provide a fixed standard to shield a religious minority from future majority oppression. Virginia ultimately turned toward the English common law to provide assurance to providers of capital and because the colony could no longer be governed on a military command system.

Thus the Founding Fathers, most of whom were of English extraction, were familiar with English common law and tended to incorporate aspects of it that seemed to make society and the courts work well. Of Coke, Thomas Jefferson once wrote to James Madison, “a sounder whig never wrote, nor of profounder learning in the orthodox doctrines of the British constitution, or in what were called English liberties.”

Legal scholars Robert Catz and Jill Lange explained the tension caused by adopting English common law, however. They wrote,

“Framers of the American legal system quite naturally looked to England as a foundation for establishing legal doctrine.” Nevertheless, the idea of legal privilege was closely associated with royalty and a class structure. Thus, it was “met with some ambivalence….The Framers wanted an egalitarian system….Many viewed privilege as a type of title/class obstacle to the search for truth and as an impediment to the right to a fair and just trial.”

Other forms of legal privilege to silence share a similar history. For example, the attorney-client privilege harks back to ancient Rome and, in 1577, it became the first such privilege recognized within common law. The American colonies adopted the practice, with Delaware codifying it in its 1776 constitution.


The legal privilege of remaining silent is usually discussed in connection with special classes of people, like journalists or spouses, whom the law treats differently due to their profession or their personal relationship to an accused. When that privilege is questioned, it is generally done in the name of ‘the public good’ or ‘the public’s right to know’.

When phrased in this manner, the debate usually concludes by removing or eroding any right to silence. For example, a recent news headline in ACLA (Australian Corporate Lawyer Association) read, “The Demise of Spousal Privilege in Australian law.” The article chronicled the High Court case Australian Crime Commission v Stoddart (2011) in which the court was asked to determine if spousal privilege was, indeed, part of common law. The High Court “held that the common law did not provide a sufficient basis for the conclusion that spousal privilege exists in the modern context.” Increasingly, the debate veers in this direction.

It is a false debate, however. The right to remain silent and not divulge what you know is not a class privilege. It is an integral, inseparable aspect of everyone’s right to freedom of speech. Whether you base this right upon a Constitution, natural law or God’s will, it is inalienable. That is, the right can neither be stripped away nor augmented because of someone’s profession or his relationship to another person who is accused of a crime. Thus, the question of whether a journalist or priest should be able to remain silent misses the point. The issue is “why isn’t everyone able to exercise this inalienable aspect of free speech?”

In other words, there should be no privilege under the law or in its application. This does not mean abandoning the legal right of spouses, attorneys, clergies and other currently ‘privileged groups’ to remain silent. It means the ‘privilege’ of privacy and freedom of speech should be universalized; it should be extended to all individuals so that no one is compelled by government to disclose information or to testify in court.

In his book The Ethics of Liberty, libertarian theorist Murray Rothbard wrote,

The solution to the problem of the newsman’s sources [or any alleged ‘privilege’ to not divulge information]…rests in the right of the knower — any knower — to keep silent, to not disseminate knowledge if he so desires. Hence, not only newsmen and physicians, but everyone should have the right to protect their sources, or to be silent, in court or anywhere else. And this, indeed, is the other side of the coin of our previous strictures against the compulsory subpoena power. No one should be forced to testify at all, not only against himself (as in the Fifth Amendment) but against or for anyone else. Compulsory testimony itself is the central evil in this entire problem.

A solid case can be made for using social pressure and other peaceful inducements in order to persuade people to speak and to testify. But, if peaceful inducements fail, then it is not within the proper jurisdiction of government to force people to provide it with information. Courts must not violate rights in the name of protecting them.