EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, December 2, 2008

My New Essay: A Public Privilege

In September I posted an entry about the Supreme Court of Pennsylvania's opinion in Castellani v. Scranton Times, L.P., 956 A.2d 937 (Pa. 2008), in which it failed to carve a crime-fraud exception out of Pennsylvania's reporter's privilege, its Shield Law, despite having previously read a similar exception into every other evidentiary privilege.  In that post, I noted that:

     "in maybe the most interesting part of its opinion, the Court rejected the argument for a crime-fraud exception to the Shield Rule based upon the crime-fraud exception to the attorney-client privilege, finding that its Shield Rule provides more protection than any other evidentiary privilege.  According to the Court,

     'contrary to appellants claim, we conclude that the Shield Law is not comparable to the attorney-client privilege, or, for that matter, to any other privilege with respect to the issue presented here. The attorney-client privilege, in contrast, does not encompass the same absolute protection. The foundational reason for this difference is that each privilege or protection serves its own, unique interests. The Shield Law was enacted to protect the free flow of information to the news media in their role as information providers to the general public. The attorney-client privilege, on the other hand, renders an attorney incompetent to testify as to communications made to him by his client in order to promote a free flow of information only between attorney and his or her client so that the attorney can better represent the client. See 42 Pa.C.S. 5916."

Well, I remained interested in this portion of the ruling after the post and then saw a call for papers on the attorney-client privilege by the Yale Law Journal Pocket Part.  So, I ended up writing a short essay on Castellani entitled, A Public Privilege.  The essay will be published in an upcoming issue of the Pocket Part, and you can download my first draft now from SSRN.  Here is the abstract:

     "If a rule is only as good as its exceptions, and a reporter is only as good as her sources, then, according to a recent Supreme Court of Pennsylvania opinion, Pennsylvania’s reporter’s privilege is the best of privileges and the worst of privileges.  In that opinion, the justices failed to carve a crime-fraud exception out of Pennsylvania’s reporter’s privilege – its “Shield Law” – despite having previously read a similar exception into every other evidentiary privilege.  Ironically, this alleged act of judicial passivism transformed the Shield Law into both a shield and a sword and mischaracterized the purposes served by the attorney-client privilege and all other evidentiary privileges.  According to the court, the Shield Law is exceptional, and thus exceptionless, because it is directed toward the public end of protecting the free flow of information to society while the attorney-client privilege, like all professional privileges, is intended for the private benefit of the client. This essay argues, however, that as the United States Supreme Court recognized in Jaffee v. Redmond, all evidentiary privileges must serve two masters, private interests and public ends, and crime-fraud exceptions do not undercut those public ends but bolster them."



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