The privilege applies to documentary evidence

Sources of evidence

According to Anglo-American law, the classic means of evidence are witnesses, documents and real evidence (derived from the actual inspection of objects). As a result of historical developments, the status of witness expert and the parties in a civil lawsuit and even the defendants in criminal proceedings has been given. The development of continental European law has taken a different course. Parties cannot be witnesses and expert evidence is subject to special procedural rules. As a result, there are essentially five different sources of evidence: witnesses, parties, experts, documents, and real evidence.

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Oral testimonies compete in a sense with documentary evidence to the extent that one can exclude or supplement the other. Under Anglo-American law, almost anyone can be a witness, including parties and experts. Even crazy people, children and convicted criminals can testify. Reasons that were previously used to expel people as witnesses are now only used to accuse their credibility. As I said, continental European countries treat neither the parties nor the experts as competent witnesses and they are still suspicious of interested witnesses. Some of them, influenced by the Roman school, by and large deny these individuals' ability to have any degree of relationship with the parties. Some find crazy people unable to testify, others grant them the competence, but exclude their testimony for credibility. The ability to be a witness does not depend on whether the person can testify on issues relevant to the case at hand. In general, the tendency has been to use any person who can testify about facts that will help establish the truth. The competence as a witness was therefore extended to as many people as possible. On the other hand, many people are legally protected from being forced to testify. This type of protection arises either from the privilege or from the right to refuse to testify, each case being distinguished from the inability to testify. While the privilege or right to refuse to testify can either be applied for or revoked, the inability to testify takes effect automatically. ie it must always be officially examined by the court.


Privileges under Anglo-American law must be distinguished from the right to refuse to testify under certain circumstances, as is the case in continental European practice. The latter is granted to witnesses for personal or objective reasons. The personal reasons are the same as those that lead to their being unable to testify - i.e. relationship, affinity, and marriage. The objective reasons concern people who have been treated confidentially because of their profession (e.g. clergy, doctors, lawyers, journalists). Such confidants have a limited right to refuse to testify as long as the protected person does not give their consent (the German solution). In some cases, they are used without the consent of the protected person (the Swedish solution). Thus, the Swedish judge officially decides whether the protected person has given his consent, while the German judge leaves the decision on the testimony to the confidante. In addition, witnesses could refuse to testify if their testimony caused direct financial harm to themselves or their families, or publicly embarrassing them or prosecuting them. All individuals can make their own decision to testify, but the judges are required to inform them of their specific rights in this matter. These rules of procedure have been developed to prevent the protected person from falling into a conflict between the truth and his or her personal interests. The interests of the protected person - perhaps partly out of realism - are therefore given a higher value than the search for the facts.

Anglo-American privileges differ from continental European rights to refuse to testify in that privileged persons cannot decide whether to testify or not. They are only allowed to cite their privileges and the judge will decide if they have to testify. In a system that emphasizes the free assessment of evidence, there are only a few exceptions to the disclosure requirement.

The privilege of incriminating oneself, on the other hand, has two reasons in Anglo-American law, since parties can appear as witnesses in civil proceedings and the accused can appear as witnesses in criminal proceedings. The privilege of an ordinary witness is severely limited. He must submit to the appointment and swearing in as a witness in all cases and answer all questions, with the exception of those that incriminate himself. As a result, either he or his attorney must identify the onerous questions that give rise to the privilege. This is not always easy, especially since only the witness and not the party or the party's lawyer can cite the protection privilege. Critics have called this privilege a sentimental institution, but it is worth noting in this context that the privilege against self-blame is included in the US Bill of Rights.

It has already been shown that in the common-law system it points out that in a criminal accused attempt no more competence as a witness is lacking but the right of refusal to exercise can be called as a witness or sworn in. Unlike ordinary witnesses, he can rely on this privilege to a considerable extent, but once he chooses to take the stand he waives his privilege and can be questioned as if he were an ordinary witness. The question then arises whether the waiver of the privilege of self-accusation is limited to statements about crimes that he is currently accused of, or whether he has to answer all questions about criminal offenses. It seems pretty well established that the prosecutor can indeed question the defendant about previous crimes. In civil cases, the parties have the same privilege to protect themselves from self-accusation as other witnesses. ie you do not have to answer any stressful questions.

Privileges arising from personal and professional relationships are generally not granted, although historically this was a privilege for the protection of marital communications has developed. In England an 1853 law decreed that a husband could not be forced to testify concerning information that his wife may have given him during the course of the marriage. This, naturally, also applies to the wife. In the United States the courts contended that laws concerning testimony on matrimonial communications contained only a statement of the common law. Only the beneficiary of the privilege may cite it, and it is not applicable where criminal offenses by one spouse against the other or against the children are concerned or in the case of a divorce proceeding.

Attorneys are considered to be under an obligation to refuse to testify about confidential communications with their clients. The privilege, however, protects the client, not the attorney, and, therefore, the client may waive it. This privilege applies principally to the adverse system, in which, so to speak, the attorney is the client’s champion.

Clergymen are likewise under obligation to refuse to answer questions concerning information given them in the secrecy of the confessional by believers. Again, the privilege protects the believer. This custom has been sanctioned by legislation in many U.S. states. In England, however, there is no common-law rule for this privilege.

Doctors usually have to answer all questions, as there is no general right about confidential information provided by the patient. Appropriate privilege has been created in some US states through legislation. Here, too, the patient is protected and only he can do without the privilege.

Like doctors, journalists take a position that is not entirely clear. In some countries, they may refuse to testify about their sources of information, and a number of states have expressly provided such a privilege. In other US states and in England the question does not yet seem to have been resolved.