704.1Privileges [Rule 501]
- Rule 501 does not create or define any rules of privilege, but directs that such rules shall be determined by the laws of the state to the extent that they are not in conflict with the United States Constitution.
- A variety of relationships and communications are protected by privilege, either by statute or case precedent, which limits the extent to which the protected person or party may be compelled to testify, produce records, or otherwise disclose information.
- The applicability of each privilege is limited, and most privileges can be overridden if there is a sufficiently compelling reason to do so.
The Basic Rule
Rule 501 – Privileges: General Rule
Except as otherwise required by the Constitution of the United States, the privileges of a witness, person, government, state, or political subdivision thereof shall be determined in accordance with the law of this State.
Overview and References
When information, knowledge or communications are protected by “privilege,” this generally means that the person or entity in possession of the information or knowledge, or who was a party to the communications, cannot be compelled to disclose it. See generally G.S. 8-53 to 53.13.
Rule 501 does not create any privileges, but makes it a rule of evidence that such privileges shall be determined in accordance with the law of the state, except as otherwise required by the United States Constitution.
A comprehensive analysis of every possible type of privilege that might arise in a criminal case is beyond the scope this entry. For more detailed information about several of the most common privilege issues (e.g., attorney-client, doctor-patient, informant-officer, and self-incrimination), see Robert Farb, “Privileged Communications,” NC Superior Court Judges’ Benchbook, January 2016.
See also the following related entries in this guide, which address privilege issues that commonly arise during trial:
- Examination of Witnesses (Section G.10, “Privilege”)
- Cross-examination (Section E, “Cross-examining Defendant About Pre-trial Silence”)
- Securing Attendance of Witnesses: Generally (Section A.5, “Privileges and Protections”)
- Subpoena to Produce Documents: Compliance and Objections (Section D., “Court Order to Override Objection or Motion to Quash).
Index and Summary
For reference and convenience, several of the most common types of privilege are summarized below.
5th Amendment, Self-incrimination
See United States Constitution, Amendment 5; North Carolina Constitution, Article 1, Section 23; Miranda v. Arizona, 384 U.S. 436 (1966). The privilege against self-incrimination generally means that the defendant cannot be compelled to make any statements or disclosures that the defendant reasonably believes could be used against him or her in a criminal prosecution, or lead to other evidence that might later be used against him or her. In addition, the state is barred from using the defendant’s silence as evidence of the defendant’s guilt. The defendant may waive this privilege and testify if he or she so chooses, in which case the defendant will be subject to cross-examination. For more information, see Robert Farb, “Fifth Amendment Privilege and Grant of Immunity,” NC Superior Court Judges’ Benchbook, May 2014.
This privilege applies to communications: (i) made in confidence between a client and his attorney; (ii) at a time when the attorney-client relationship existed; (iii) regarding a matter about which the attorney was being professionally consulted; (iv) for the purpose of obtaining legal advice; and (v) where the client has not waived the privilege. See In re Miller, 357 N.C. 316 (2003) (setting forth elements). If the communication does not meet all of these criteria, it is not protected by the privilege. See, e.g., State v. McIntosh, 336 N.C. 517 (1994) (communication not privileged when it was intended to be disclosed to third party); State v. Murvin, 304 N.C. 523 (1981) (statement about a different criminal matter for which attorney did not represent defendant was not protected).
The privilege belongs to the client, so the attorney may not choose to waive the privilege without the client’s consent, even after the client’s death. See State v. Tate, 294 N.C. 189 (1978). However, the bare fact that a person is a client of the attorney is not covered by this privilege. Id.; see also State v. Cherry, 141 N.C. App. 642 (2000) (billing records not protected by privilege).
The state is not required to disclose the identity of a confidential informant unless the disclosure is “otherwise required by law,” which generally requires a showing by the defendant that the information would be helpful in preparing a defense. See G.S. 15A-904(a1); G.S. 15A-978; McCray v. Illinois, 386 U.S. 300 (1967); Roviaro v. United States, 353 U.S. 53 (1957); State v. Avent, 222 N.C. App. 147 (2012); State v. Mack, 214 N.C. App. 169 (2011); State v. Dark, 204 N.C. App. 591 (2010) (“before the courts should even begin the balancing of competing interests which Roviaro envisions, a defendant who requests that the identity of a confidential informant be revealed must make a sufficient showing that the particular circumstances of his case mandate such disclosure”), quoting State v. Watson, 303 N.C. 533, 537 (1981); see also State v. Creason, 313 N.C. 122 (1985) (pursuant to G.S. 15A-978(b)(1), defendant was not entitled to identity of informant where information was used in search warrant affidavit).
The state is likewise not required to disclose the identity of any person who provides information about a crime to a Crime Stoppers organization (as defined in the statute) under assurance of anonymity, unless ordered by the court. G.S. 15A-904(a3).
Any knowledge or information acquired by a physician or nurse in attending to a patient in a professional capacity, and any communications necessary for diagnosis and treatment made by the patient during that time, are privileged. See G.S. 8-53, 53.1, 53.13; McGinnis v. McGinnis, 66 N.C. App. 676 (1984) (setting out the tenets of the privilege); Smith v. Roper Lumber Co., 147 N.C. 62 (1908) (patient’s description of details about the accident was not privileged when the description would have made no difference in treatment). The privilege can be waived only with the consent of the patient. See Capps v. Lynch, 253 N.C. 18 (1960). The court may also compel disclosure of privileged information if it “necessary to a proper administration of justice.” State v. Efird, 309 N.C. 802 (1983) (“[j]udges should not hesitate to require the disclosure where it appears to them to be necessary in order that the truth be known and justice be done”).
Information is privileged if it is communicated by a person seeking spiritual guidance to a clergyman or ordained minister of an established church, and the information communicated is necessary to enable that person to discharge the usual functions of his or her religious practice and discipline (i.e., to give advice based on the information provided). See G.S. 8-53.2; State v. Jackson, 77 N.C. App. 832 (1985) (error to allow testimony from witness who gave spiritual counsel to defendant); but see State v. Crisco, 243 N.C. App. 578 (2015) (privilege did not apply to defendant’s statements to a third party that he had discussed the murder with his pastor). If the privilege exists, only the communicant may waive it (in “open court”). See G.S. 8-53.2.
Unlike most statutory privileges, there is no provision that allows the court to order disclosure of any information protected by this privilege in the interest of justice. See State v. Barber, 317 N.C. 502 (1986).
Spousal Privilege and Competency
The defendant’s spouse is a “competent but not compellable” witness. In other words, one spouse may testify against another, but cannot be forced to do so. See G.S. 8-57(b), (c); State v. Britt, 320 N.C. 705 (1987). Additionally, even if the spouse chooses to testify, he or she cannot be compelled to disclose any “confidential communications” that occurred during the marriage. G.S. 8-57(c).
However, because the privilege only applies to “confidential communications,” it does not cover communications that were made to or in the presence of a third party, see State v. Kirby, 187 N.C. App. 367 (2007), or to “acts” performed by the defendant (unless the acts accompanied, or were intended as, a communication), see State v. Holmes, 330 N.C. 826 (1992); State v. Matsoake, 243 N.C. App. 651 (2015). The privilege may only be waived by the party (i.e., the spouse) against whom the communication is being offered. See State v. Holmes, 330 N.C. 826 (1992).
The privilege does not apply to communications that are evidence of certain criminal offenses or other conditions, including child abuse, child neglect, or termination of parental rights. See G.S. 8-57.1; G.S. 7B-310; G.S. 7B-1109.
The following types of privilege occur less often in criminal cases, but are listed here for reference. The applicability, scope, and exceptions for each privilege are determined by the respective statutes.
G.S. 8-53.3 (psychologist/patient);
G.S. 8-53.4 (school counselor);
G.S. 8-53.5 (therapist/patient);
G.S. 8-53.6 (marriage counselor);
G.S. 8-53.7 (social worker);
G.S. 8-53.8 (professional counselor);
G.S. 8-53.9 (optometrist/patient);
G.S. 8-53.10 (peer support counselor);
G.S. 8-53.11 (news media, journalists);
G.S. 8-53.12 (rape crisis center workers).