CHAPTER VI.

PRIVILEGED COMMUNICATIONS.

SECTION 39. BETWEEN ATTORNEY AND CLIENT.

At common law, a legal adviser could not be compelled to disclose any lawful communication between himself and his client, such communications being regarded by the law as privileged. In fact, the law placed a seal upon his lips and would not allow him to reveal them unless the privilege be expressly waived by the client. The privilege being that of the client and not of the attorney, he may waive his privilege. If not waived, the protection which the law gives to such communications does not cease with the termination of the suit or controversy, nor with the death of the client. The seal of the law, once fixed upon them, remains forever.1

This privilege does not extend to communications in furtherance of criminal acts, for the moment an attorney advises or enters into the commission of a crime, he loses his character as legal adviser and becomes a criminal, and communications to him become no more privileged than if made to any other criminal."

SECTION 40. PHYSICIANS AND CLERGYMEN.

At the common law, this privilege did not extend to physicians or clergymen, and in the absence of protecting statute they can be compelled to disclose every statement made to them in their professional capacity, no matter how sacred or confidential, the only limita1 1 Greenleaf, Sec. 243. Stephens, Dig. Ev., Art. 115.

tion being that it must be material to the issue in the

case.

By statute, in a majority of the states, the privilege has been extended to physicians and ministers of the gospel, and no communication made to them in their professional capacity will be allowed to be disclosed without the consent of the patient or communicant, and this privilege extends to their clerks and employes.

SECTION 41. STATE SECRETS.

The rights of parties litigant being subordinate to the rights of the public at large, there are some matters of public interest into which courts may not pry. The disclosure of secrets of state, such as communications between public officers, transactions between heads of departments of state and their subordinates, or between a governor and his military officer, the report of a military commission of inquiry to the Secretary of War, information obtained for the purpose of the enforcement of the criminal law, would be highly prejudicial to the public welfare. And where an attorney for a party litigant pushes his examination of witnesses to a point where the divulgence of state secrets is sought, the witness may refuse to answer on the ground of privilege. The privilege not only extends to public officers, but their subordinates as well, and any person who may have knowledge of such public matters, even though not in office.

SECTION 42. SELF-INCRIMINATING EVIDENCE.

Star chamber proceedings and inquisitorial methods in England at an early date taught the patriots of those stormy days the necessity of establishing a limit

to the extent of the inquiry into the private affairs of individuals to which courts of this nature might go under the cloak of law. And, in addition to the right to be secure from all unreasonable searches and seizures, was secured the privilege of refusing to disclose matters which would tend to incriminate the witness. This privilege was regarded with great concern, because of its far reaching importance to liberty, and became firmly and ineradically imbedded in the common law.

The framers of our government firmly implanted it in the Constitutional Amendments, Art. V, which provides: "No person **** shall be compelled, in any criminal case, to be a witness against himself," etc.

This privilege not only exists at common law, but is declared in many State constitutions and statutes. Matter privileged under this head includes any disclosure of facts which would tend to subject the witness to imprisonment, penalty or forfeiture, or confiscation of lands.

SECTION 43. BETWEEN HUSBAND AND WIFE.

In view of the high importance of preserving intact the confidence and security of the marriage state, the law regards confidential communications between husband and wife as privileged, and refuses to permit either to be interrogated as to what occurred in their confidential intercourse during their marital relations. The law has placed its protecting seal upon all such communications, and upon whatever else has come to the knowledge of either by means of the hallowed confidence which that relation inspires, and forbids its divulgence in testimony even though the other be no

longer living.

The seal once fixed, remains forever, and neither death nor subsequent divorce removes it.

This wise rule of the common law has been very generally declared by statute in the United States. Griffeth vs. Griffeth, 162 Ill., 374.

SECTION 44. DEFINITION AND SCOPE.

Expert evidence is testimony given by one specially versed or skilled in a certain science, profession, or trade, concerning information beyond the range of ordinary knowledge and intelligence. Concerning matters of science, skill, or trade, or subjects of a kindred nature, persons who have made a special study or practice thereof, and who are well versed or skilled therein, may give either their opinion thereon or testify to facts within their knowledge. Persons so versed or skilled are called "experts."

Unless the matters under investigation involve some question beyond the range of ordinary knowledge or understanding, there is no province for the introduction of expert testimony. Opinions are never received so long as the facts in the case are readily intelligible to the court and jury, nor so long as the subject under inquiry is one readily understood by men of ordinary intelligence and knowledge.

The reason for the admission of expert or opinion evidence is one of necessity, the theory of the law being that a court or jury, having given a scientific subject, or trade requiring skill, no study, and having no knowledge or experience in a subject little known to the generality of mankind, are unable to form a correct judgment concerning it. One who, by practice, or observation, or special study, has become skilled or learned therein, is better able to form an accurate opinion concerning the same.