Privileges and Exclusions
Core concepts
Privileges protect confidential relationships and are held by the client, patient, or penitent - not by the professional. Learn the elements: a confidential communication, made in the course of a protected relationship, not waived. Attorney-client privilege covers legal advice, not business advice; it survives the client's death and continues indefinitely. Work-product protection is distinct and belongs to the lawyer, covering materials prepared in anticipation of litigation. Doctor-patient, psychotherapist-patient, clergy-penitent, and spousal privileges each have their own scope and exceptions.
Exclusions operate outside privilege: illegally obtained evidence, involuntary confessions, evidence whose probative value is substantially outweighed by unfair prejudice, and public-interest immunities for informants and state secrets. Know the difference between a privilege (the holder may waive or assert it) and a rule of exclusion (the tribunal excludes regardless of the parties' wishes).
Traps
Questions often confuse attorney-client privilege with work product, or assume a privilege applies in every proceeding. Watch for waiver by voluntary disclosure, for the crime-fraud exception, and for the spousal privilege distinction between the confidential-marital-communications privilege (survives divorce) and the spousal-testimony privilege (ends with the marriage).
Worked example
A client tells her lawyer where the murder weapon is hidden. The communication is privileged, but the physical evidence and its location are not; the lawyer may not conceal the weapon, and the crime-fraud exception may defeat privilege if the client sought advice to further a crime.
Rule of thumb
Ask who holds the privilege, whether it was waived, and which exception applies - then check whether the material is a communication or a fact.