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CHAPTER 13: THE RULES OF EVIDENCE - Table of Contents

13.1 - General Overview13.2 - Judicial Notice and Presumptions13.3 - Relevancy13.4 - Privileges13.5 - Witnesses13.6 - Opinions and Expert Testimony13.7 - Hearsay13.8 - Exhibits13.9 - The Use of Other Offenses and Acts13.10 - Selected Special Rules13.11 - Colorado Rules of Evidence

13.4 PRIVILEGES

In evidence law, privileges are special rules designed to protect certain relationships that we, as a society, have deemed to be of particular importance. In Colorado, privileges are all created by statute. Colorado law creates certain privileges between lawyer and client, husband and wife, clergyman and penitent, doctor and patient, accountant and client, psychologist and client, victim advocate and victim and certain governmental officials giving sensitive advice.

The effect of the privilege is to bar the lawyer, or doctor, etc., from revealing what was said to that person in confidence. The state legislature, as matter of policy, has decided that we should encourage candid and complete communication between doctor and patient, lawyer and client, etc., and that we can encourage that candor by ensuring that the confidential communication is not subsequently revealed in court.

As with all rules, of course, there are exceptions, and there are many exceptions to the general law of privilege. One general exception is that if the person holding the privilege (e.g., the client or patient) is suing the other party to the conversation, the other party may reveal what was said as far as such revelation is necessary to defend against the claim. Thus, a patient cannot sue a doctor, claim that the doctor gave bad advice, and then bar the doctor from testifying as to the advice that the doctor gave.

There are many other, more specific, limitations on the privileges described above, some of which follow. While a lawyer cannot generally reveal what a client says in confidence, a lawyer may reveal the client's expressed intention to commit a crime in the future. While a spouse cannot generally be forced to testify against the other spouse, the spousal privilege does not apply in civil cases, in cases of domestic violence or child abuse, or to communications made before the marriage. In addition, the spousal privilege is more limited in all Class 1, 2 and 3 felonies. Only those communications made to a clergyman as part of the regular practice of the particular religion are protected. Only those communications made to a doctor in furtherance of the diagnosis and treatment of the medical problem are protected by the doctor-patient privilege.

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