A private road can be used by the general public and is open to all who wish to use it, but it primarily benefits those at whose request it was established.. Unlike highways that are car
Trang 1Lawrence Berkeley Laboratory, the oldest research lab in the country, argued that it was not liable because the employees had all agreed
to receive comprehensive physical examina-tions A defendant in the case, Thomas Budinger, a former medical director of the lab, defended the testing of African Americans for syphilis “[T]hat’s where the prevalence of the disease is,” Budinger explained to Hawkins
“How come only people over a certain age would get an EKG? See the logic?” The laboratory also denied that the testing was done
in secret According to attorney Douglas Barton, the lab posted test results on a wall in the exam room The plaintiffs in the case disputed that assertion, and they argued that they had not agreed to repeated testing without their consent, but the federal district court in San Francisco dismissed the case According to Judge Vaughn Walker of the federal trial court in San Francisco, the tests were administered as part
of a comprehensive medical examination to which the employees had consented
The plaintiffs appealed the dismissal of the case to the Ninth Circuit Court of Appeals
In February 1998, the federal appeals court reversed the ruling and remanded the case for trial Norman-Bloodsaw v Lawrence Berkeley Laboratory, 135 F.3d 1260 (9th Cir 1998)
According to the appeals court, the testing violated constitutional privacy rights if the employees had not given their consent, and there were no reasonable medical or public health needs that justified the testing The testing also violated Title VII of the Civil Rights Act of 1964 if the testing was conducted based
on race and gender-specific traits The appeals court put a stop to the testing and ordered the lab to delete all of the secret test results from the personnel files of the employees
The Norman-Bloodsaw decision is impor-tant because it places some limits on the use of genetic testing of employees Every year, genetic researchers are discovering new genetic pre-dictors for diseases, and insurance companies may begin to base eligibility for their medical and life insurance policies on a person’s genetic predisposition to diseases If, for example, a person seeking insurance is genetically tested and found to have a predisposition for a fatal disease, the insurance company may wish to deny coverage
FURTHER READINGS Dworkin, Ronald 1996 Freedom’s Law: The Moral Reading
of the American Constitution Cambridge, Mass.: Harvard Univ Press.
Garrow, David 1994 Liberty and Sexuality: The Right to Privacy and the Making of Roe v Wade New York: Scribner.
Grant, Jeffrey R 2000 Surveillance Society Toronto, Ontario: Frontier Research.
Kennedy, Caroline, and Ellen Alderman 1995 The Right to Privacy New York: Knopf.
Knowles, Helen J 2009 The Tie Goes to Freedom: Justice Anthony M Kennedy on Liberty Lanham: Rowman & Littlefield.
Posner, Richard 1981 The Economics of Justice Cambridge, Mass.: Harvard Univ Press.
Restatement of the Law Second, Torts 1987–2001 New York: American Law Institute.
Soma, John T., and Stephen D Rynersosn 2008 Privacy Law in a Nutshell St Paul, Minn.: Thomson/West Warren, Samuel D., and Louis D Brandeis 1890 “The Right to Privacy.” Harvard Law Review 4.
CROSS REFERENCES Acquired Immune Deficiency Syndrome; Consumer Credit; Death and Dying; Drugs and Narcotics; Due Process; Employment Law; Gay and Lesbian Rights; Libel and Slander; Parent and Child; Penumbra; Privileged Commu-nication; Quinlan, In re; Search and Seizure.
PRIVACY ACT OF 1974 The Privacy Act of 1974 (5 U.S.C.A § 552a) is a federal law that places restrictions on the federal government’s collection, use, and dissemination
of personal information As with most compre-hensive federal statutes, the act provides general and specific exemptions as well as an adminis-trative appeals process
The genesis of the Privacy Act can be traced back to 1965, when a congressional subcom-mittee examined privacy issues Between 1965 and 1974 other congressional committees held hearings and issued reports on how individual privacy rights were affected by the growth of national data banks and the emergence of electronic data collection and storage An important catalyst for the legislation was a Department of Health, Education, and Welfare report on government records and computers The report proposed a“Code of Fair Informa-tion Practices” to be followed by all federal agencies and urged the adoption of five core principles: (1) the government should not maintain any secret records; (2) individuals must be able to see what personal information about them is stored and how it is used; (3)
118 PRIVACY ACT OF 1974
Trang 2individuals must provide prior written consent
before personal information collected for one
purpose can be used for a different purpose; (4)
individuals must be allowed to fix or clarify
personal information about them; and (5)
organizations that store or use personal data
must be responsible for the information’s
veracity and must attempt to prevent its misuse
Congress incorporated these principles into
the Privacy Act, which applies to the executive
branch of the federal government The
execu-tive branch encompasses administraexecu-tive
agen-cies, government corporations, and
govern-ment-controlled corporations The act does
not apply to records kept by state and local
governments or by private companies or
organizations Only U.S citizens and lawfully
admitted ALIENS are given rights under the act
Accordingly, nonresident foreign nationals may
not invoke the provisions of the act
Generally, the only materials that are subject
to the act are those that are maintained in a
system of records The act defines records to
include most personal information kept by an
agency about an individual A record contains
individually identifiable information, such as
data on a person’s education, medical history,
criminal history, employment history, or
finan-cial transactions A system of records is a group
of records from which information can be
retrieved by name, SOCIAL SECURITY number, or
any other identifying symbol linked to an
individual Most personal information that is
kept in federal government files is subject to the
Privacy Act Therefore the government may not,
for example, share medical-history information
of a MEDICARE recipient with another
govern-ment agency without first obtaining the
indivi-dual’s written consent
The Privacy Act gives the government the
authority to withhold records from individuals
if important government interests are at stake
The government may deny access based on
national security or law enforcement concerns
There are two general exemptions: one that
applies to all records maintained by theCENTRAL
INTELLIGENCE AGENCY (CIA) and another that
applies to federal CRIMINAL LAW enforcement
agencies The statute also lists seven specific
exemptions that include SECRET SERVICE records
involving the protection of the president,
information used solely for statistical records,
and various national security and law enforce-ment records
The act includes a number of exceptions to disclosure These exceptions apply the following:
agencies and officers who need a record to perform their duties; information sought pursuant
to the FREEDOM OF INFORMATION ACT, 5 U.S.C.A
§ 552; information needed for the routine purpose for which the record was created, collected, or maintained; information sent to the Census Bureau for the purposes of planning
or carrying out a census or survey; information sent to a recipient who has provided written assurance the record will be used solely for statistical research, if the record is transferred in
a form which is not individually identifiable;
the National Archives and Records Administra-tion as a historical or otherwise valuable record;
a state or federal agency or instrumentality for
a civil or criminal law enforcement activity, provided the written request identifies the specific portion of the record desired and the purpose for which it is sought; a person pursuant to a showing of compelling circum-stances affecting the health or safety of an individual, if concomitant notice is sent to the last known address of the individual; either House of Congress, or any committee, subcom-mittee, joint committee or joint subcommittee
of a House of Congress; the Comptroller General or his authorized representatives in the course of the performance of the duties of theGENERAL ACCOUNTING OFFICE; pursuant to the order of a court of competent jurisdiction; or a consumer reporting agency
Individuals who are denied access to their records may file an administrative appeal with the agency withholding the information When a request for access is denied, the agency must explain the reason for the denial and must cite the specific statutory exemption Individuals who can access their records, but who dispute the accuracy of the information, have the right to request a correction The agency must acknowl-edge receipt of the request and must promptly make a determination on whether to correct the record If the agency denies the request, the individual may file an administrative appeal If that appeal is denied, the individual has the right
toJUDICIAL REVIEWby suing the agency in federal court A lawsuit must be filed within two years from the date of the final agency denial
PRIVACY ACT OF 1974 119
Trang 3FURTHER READINGS Brin, David 1999 The Transparent Society: Will Technology Force Us to Choose between Privacy and Freedom? New York: Perseus.
Rosen, Jeffrey 2001 The Unwanted Gaze: The Destruction of Privacy in America New York: Knopf.
Werhan, Keith 2008 Principles of Administrative Law St.
Paul, Minn.: Thomson/West.
Whitaker, Reginald 2000 The End of Privacy: How Total Surveillance Is Becoming a Reality New York: New Press.
CROSS REFERENCES Administrative Law; Administrative Procedure Act; Privacy.
PRIVATE That which affects, characterizes, or belongs to an individual person, as opposed to the general public
PRIVATE ATTORNEY GENERAL
A private citizen who commences a lawsuit to enforce a legal right that benefits the community
as a whole, such as matters regarding water pollution under the Clean Water Act Under the Racketeer Influenced and Corrupt Organization Act (RICO), private citizens may similarly bring actions against parties committing wire and mail fraud in their business activity The Civil Rights Attorneys Fees Awards Act of 1976, more commonly known as “Section 1988,” allows private citizens to act as private attorneys general and to bring proceedings against those who violate civil rights laws A prevailing plaintiff may collect attorneys fees in matters involving any of several dozen federal statutes that provide for private enforcement
FURTHER READINGS Pamela S Karlan 2003.”Disarming the Private Attorney General.” University of Illinois Law Review 1.
Morrison, Trevor W 2005.”Private Attorneys General and the First Amendment ” Michigan Law Review 103 (February).
PRIVATE BILL Legislation that benefits an individual or a locality Also called “special legislation” or a
“private act.”
Private bills are a part of the U.S legislative process Individuals sometimes request relief through private legislation when administrative
or legal remedies are exhausted Many private bills addressIMMIGRATION and grant citizenship
or permanent residency Private bills may also
be introduced for individuals who have claims against the government, veteran’s benefits
claims, claims for military decorations, or taxation problems The title of a private bill usually begins with the phrase, “For the relief
of ” If a private bill is passed in identical form by both houses of Congress and is signed
by the President, it becomes aPRIVATE LAW From 1817 through 1971, most Congresses enacted hundreds of private laws, but since then the number has declined sharply Federal agencies now have expanded agency discretion
to address many of the situations that tended to give rise to private bills Private provisions also are occasionally included in public legislation Many state constitutions prohibit the enact-ment of private bills or acts when a general law could apply The prohibition of private bills, now more commonly known as“special laws,” applies to legislation that affects local govern-ments or private individuals
The constitutional disfavor of private bills is based on several concerns The enactment of special legislation undermines the idea that laws apply to all persons in a state The perception of favoritism reduces the credibility of the legislative process The reality of special legislation is that the legislature fails to establish responsible and uniform statewide regulation of local government units and creates preferential and prejudicial
DISCRIMINATIONbetween communities Private bills also use legislative time and energy in small amounts, leaving the legislature less able to face general legislative business Nevertheless, special legislative treatment of special problems is some-times warranted
Legislatures can evade the constitutional provisions banning private bills by drafting laws that apply to the entire state, at least on their face For example, a special bill for one local unit of government or person can be drawn so that it appears to apply to all units or persons meeting specific criteria The criteria actually limit its applicability to the one community or person the sponsors intend to affect Population
is the most common“bogus” criterion since it is easy to use Thus, a law that applies only to“a county with a population of more than 50,000 and between 350,000 and 400,000 acres” appears on its face to apply generally to all counties in the state that match the criteria This type of legislative drafting hides special legisla-tion and makes it appear to be general
120 PRIVATE
Trang 4Courts will uphold special legislation if the
classifications in the act are “open,” meaning
that other units of government or individuals
will come under the law if at any time they meet
the criteria in the law In the example above, the
population of a county given in the law was
50,000 If another county reaches that level of
population and has the same amount of acreage,
it will fall under the legislation, thus making the
classification open If the class is fixed by the
facts as of some point in time, it is closed is
stripped of the presumption that it is an honest
classification related to a legitimate legislative
purpose The class is held to be descriptive of
the target community or person and makes the
legislation an invalid private bill
PRIVATE INTERNATIONAL LAW
A branch of jurisprudence arising from the diverse
laws of various nations that applies when private
citizens of different countries interact or transact
business with one another
Private international law refers to that part
of the law that is administered between private
citizens of different countries or is concerned
with the definition, regulation, and enforcement
of rights in situations where both the person in
whom the right inheres and the person upon
whom the obligation rests are private citizens
of different nations It is a set of rules and
regulations that are established or agreed upon
by citizens of different nations who privately
enter into a transaction and that will govern in
the event of a dispute In this respect, private
INTERNATIONAL LAW differs from public
interna-tional law, which is the set of rules entered into
by the governments of various countries that
determine the rights and regulate the
inter-course of independent nations
The U.S DEPARTMENT OF STATE currently
offers a Private International Law website,
containing links to some of the major
conven-tions on private international law, including
The Hague Conference on Private International
Law and the International Institute for the
Unification of Private International Law
(UNI-DROIT), as well as documents summarizing the
current state of negotiations or RATIFICATION
efforts concerning multilateral private
interna-tional law conventions In addition, the site
advertises upcoming negotiating sessions; posts
documents setting forth the U.S government’s
positions, proposals, and studies related to ongoing negotiations; and provides information
on meetings at which members of private industry and the public can offer their commen-tary on projects under way
FURTHER READING Private International Law website Available online at http://
www.state.gov/s/l/c3452.htm (accessed September 22, 2009).
PRIVATE LAW That portion of the law that defines, regulates, enforces, and administers relationships among individuals, associations, and corporations, includ-ing the UNIFORM COMMERCIAL CODE As used in distinction to public law, the term refers to that part
of the law that is administered between citizen and citizen, such as contract or tort law, or that is concerned with the definition, regulation, and enforcement of rights in cases where both the person
in whom the right inheres and the person upon whom the obligation rests are private parties
The term also can refer to bills enacted into law for limited applicability, such as particu-lar immigration matters or the extension of the term of particular patents As matters of statutory law, these bills are relatively rare in the twenty-first century
FURTHER READING Gordley, James 2006 Foundations of Private Law: Property, Tort, Contract, Unjust Enrichment New York: Oxford University Press.
PRIVATE ROADS
A private road is a street or route that is designated by a public authority to accommodate
a person or a group of people
A private road is often established because
an individual needs to gain access to land; such
a road can cross another person’s property A private road can be used by the general public and is open to all who wish to use it, but it primarily benefits those at whose request it was established Unlike highways that are cared for by the public at large, private roads are maintained at the expense of the private individuals who requested the road
Statutory regulations must be observed when a private road is designated An applicant can recommend a certain location for the road, but the ultimate decision rests with the highway authority, which might vary the proposed
PRIVATE ROADS 121
Trang 5route to comply with the PUBLIC INTEREST and statutory regulations Distance, practicality, the interests of the applicant, and the least intrusive means of utilizing private property are some considerations involved in making a road
When a private RIGHT OF WAYis requested over another person’s property and the owner of the land over which the proposed route is sought provides a convenient and practical route, that passage will often be earmarked for a segment of the private road
The authority to establish a private road is derived from the power ofEMINENT DOMAINand exists only when expressly provided by a statute The statute must be strictly followed, especially when the private road benefits only the requesting party Generally, land is taken for the construction of a private road only in cases of necessity The definition of necessity varies among the jurisdictions and is determined on
a case-by-case basis Some jurisdictions hold that
an applicant establishes necessity when that person proves that a private road is absolutely indispensable as a means of reaching the person’s land, whereas others only require proof
of a reasonable and practical need for the road
Private roads are never opened merely because the applicant would find it a convenience Before establishing one, the authority must consider all the facts and balance the benefit received by the limited number of people who use the road against the burden imposed on the owner of the land over which the proposed road will cross
Most statutes require that an applicant file
a petition with a court to commence a CIVIL ACTIONfor the establishment of a private road
The action is between the applicant and the owner or owners whose land will be utilized in the proposed road The court appoints viewers, commissioners, or jurors to inspect the affected area, to decide whether the road should
be established, and to suggest any needed modifications Where statutes provide for the appointment of viewers, who subsequently find the road necessary, these viewers will map out a route that does the least amount of damage to private property and consider the needs of the applicant The awarding of damages to the property owner over whose land the road passes
is within the exclusive discretion of the viewers
A court will review the damages award only if
it is alleged that the viewers acted in a dishonest
or corrupt manner
Some statutes require the commissioners or viewers to conduct a hearing on the proposed road Such a hearing provides for a better fact-finding procedure because the applicant and any opposing party can present arguments for or against the proposed road If an opponent wishes
to contest an application that receives a favorable report, that person must file an exception, which preserves the record should the losing party decide to appeal If no exceptions are filed during the hearing, a report that conforms to the law is binding on a court A court must then enter a judgment, describing the location of the road and, if required by statute, limiting its use to a specified period or time
The duty to maintain and repair a private road rests on the person or persons for whose benefit the road is established If a large portion
of the public use the road or if a statute requires its designation as a public highway, then the duty to maintain and repair falls on the public
at large Persons who are injured as a result of disrepair can seek to recover damages from the responsible party
As a general rule, the user of a private road
or driveway must yield the right of way to vehicles on a public way The user of the private road must use reasonable care and caution to enter the public way safely The duty of the user
of the private road is not absolute, however The user of the public way must use the right of way
in a reasonable manner and must exercise due care in using the public way
FURTHER READINGS Burke, Barlow, and Joseph Snoe 2008 Property: Examples and Explanations New York: Aspen.
Harris, Brian R 2002 “Private Road or Public Use? The Landlocked Property Dilemma: A Constitutional and Economic Analysis of Private Road Acts.” Univ of Detroit Mercy Law Review 80 (fall): 149–70.
Stewart, Jill 1996 “The Next Eden: The Movement into Gated Communities Is Not about Escape: It ’s about Building Neighborhoods ” California Lawyer CROSS REFERENCES
Duty; Tort Law.
PRIVATEER
A privately owned vessel that is commissioned by one power to attack merchant ships from a hostile power The term also refers to the commander or a crew member of such a vessel
A privateer was commissioned by the issuance of a letter of MARQUE AND REPRISAL to
122 PRIVATEER
Trang 6commit hostile acts at sea, generally in
accor-dance with theRULES OF WAR Letters of marque
and REPRISAL were issued by a state to its own
subjects as well as to the subjects of neutral
states The owner of a vessel who accepted
letters of marque from both belligerents was,
however, deemed a pirate
Privateering was abolished on an
interna-tional scale with the ratification of the
Declara-tion of Paris in 1856, which was signed by Great
Britain, France, Turkey, Sardinia, Austria,
Prus-sia, and Russia The United States, Spain,
Mexico, and Venezuela, however, did not
consent to the declaration The United States
refused to join the treaty because the U.S
Constitution, which gives Congress the power
to issue letters of marque, does not authorize it to
participate in a permanent treaty abolishing
privateering Regardless, the act of privateering is
considered a federal offense punishable by fine
or imprisonment (18 U.S.C.A § 1654[2003])
FURTHER READING
Woodruff, James J 2002 “Merchants, Traders, and Pirates:
The Birth of the Admiralty Clause ” Tulane Maritime
Law Journal 563.
PRIVILEGE
A particular benefit, advantage, or IMMUNITY
enjoyed by a person or class of people that is not
shared with others A power of exemption against
or beyond the law It is not a right but, rather,
exempts one from the performance of a duty,
obligation, or liability
PRIVILEGE AGAINST
SELF-INCRIMINATION
The privilege against self-incrimination forbids
the government from compelling any person
to give testimonial evidence that would likely
incriminate him or her during a subsequent
criminal case This right enables aDEFENDANTto
refuse to testify at a criminal trial and, according
to the U.S.SUPREME COURT,“privileges him not to
answer official questions put to him in any
other proceeding, civil or criminal, formal or
informal, where the answers might incriminate
him in future criminal proceedings.” Lefkowitz
v Turley, 414 U.S 70, 94 S Ct 316, 38 L Ed 2d
274 (1973)
Confessions, admissions, and other statements
taken from defendants in violation of this right
are inadmissible against them during a criminal
prosecution Convictions based on statements taken in violation of the right against self-incrimination normally are overturned on appeal, unless sufficient admissible evidence is available
to support the verdict The right against self-incrimination may only be asserted by persons and does not protect artificial entities such as corporations (Doe v United States, 487 U.S 201,
108 S Ct 2341, 101 L Ed 2d 184 [1988])
Witness Privilege
A witness may refuse to answer questions or giveDOCUMENTARY EVIDENCEonly if the answer or document would incriminate the witness An answer is considered self-incriminating if it would lead to criminal liability in any jurisdic-tion The answer need only furnish a link in the chain ofCIRCUMSTANTIAL EVIDENCEnecessary for a conviction Blau v United States, 340 U.S 159,
71 S Ct 223, 95 L Ed 170 (1950) The answer does not have to be one that would be admissible as evidence in a criminal trial
The privilege does not allow a witness to refuse to answer a question because the response may expose the witness to civil liability, social disgrace, loss of status, or loss of private em-ployment A witness may not claim the privilege
on the grounds that an answer or document may incriminate a THIRD PARTY: It may be declared only by the witness for the witness
In some criminal cases, a PROSECUTOR may grant to a witness IMMUNITY from prosecution
This immunity comes in two forms: transac-tional and testimonial Transactransac-tional immunity gives the witness immunity from prosecution for the criminal acts to which the witness refers
in his or her statements Testimonial immunity merely prevents the prosecution from using the statements the witness makes in a subsequent prosecution of the witness Prosecutors have the right to grant only testimonial immunity and thereby force witnesses to testify If the witness refuses to testify after being given testimonial immunity, he or she could be jailed for
CONTEMPT of court Furthermore, if a witness with testimonial immunity testifies falsely, the false statements may be used against the witness
in a subsequent prosecution forPERJURY
By contrast, if police or prosecutors summon
a witness to produce self-incriminating docu-ments, the witness may claim the privilege because
a summons to produce documents is similar to
a demand for testimony Curcio v United States, PRIVILEGE AGAINST SELF-INCRIMINATION 123
Trang 7354 U.S 118, 77 S Ct 1145, 1 L Ed 2d 1225 (1952) However, police and prosecutors may force a witness to relinquish self-incriminating documents if the records pertain to a regulated public matter, such as price records kept by businesses under price-regulation statutes
Criminal Defendant Privilege
In MIRANDA V.ARIZONA, 384 U.S 436, 86 S Ct
1602, 16 L Ed 2d 694 (1966), the Supreme Court extended the right to remain silent to pretrial custodial interrogations The Court held that before a suspect is questioned, the police must apprise the suspect of his or her right to remain silent and that if he or she gives up this right, any statements may be used against the suspect in a subsequent criminal prosecution
Under Miranda, suspects also have a FIFTH AMENDMENT right to consult an attorney before they submit to questioning Miranda applies to any situation in which a person is both held in custody by the police, which means that he or she is not free to leave, and is being interro-gated, which means he or she is being asked questions that are designed to elicit an incrimi-nating response A person need not be arrested
or formally charged for Miranda to apply
Miranda has been scrutinized by law enforcement personnel and others since it was first decided In 1968 Congress enacted a law, codified at 18 U.S.C.A § 3501, that restored voluntariness as a test for admitting confessions
in a federal court The U.S DEPARTMENT OF JUSTICE, however, under attorneys general of both major political parties, refused to enforce the provision, believing it to be unconstitu-tional The Supreme Court, in Dickerson v
United States, 30 U.S 428, 120 S.Ct 2326, 147 L.Ed.2d 405 (2000), ruled that this law could not revoke Miranda because the 1966 decision had been made on constitutional grounds
The Supreme Court, while not overruling Miranda, has moved from an outright ban
on evidence obtained in violation of the rule to
a more relaxed standard In Chavez v Martinez,
538 US 760, 123 S Ct 1994, 155 L Ed 2d
984 (2003), the Court held that the SELF
-INCRIMINATIONClause was not violated until the government sought to introduce a defendant’s self-incriminating statements The Court built
on this precedent in U.S v Patane, 542 U.S
630, 124 S.Ct 2620, 159 L.Ed.2d 667 (2004) when it ruled that the failure of police officers to
properly“Mirandize” a suspect did not require the suppression of physical evidence obtained through inadmissible questioning In a plurality opinion, the Court rejected the application of the Fourth Amendment’s “fruit of the poison-ous tree” doctrine This doctrine mandates that when police illegally search and seize evidence, any additional evidence that is based on this tainted evidence cannot be used as well Law enforcement officers have sought to avoid the restrictions that Miranda imposes on their interrogations Reading suspects their Miranda warnings upon their arrest can discour-age suspects from cooperating and confessing to their crimes Over time, police developed a two-stage interrogation technique in which investi-gators interview a suspect without advising them
of Miranda rights Once the suspect gives incriminating statements, the police briefly adjourn the session before “Mirandizing” the suspect and then asking him or her to repeat the incriminating statements The suspect, unaware that the first statement would be inadmissible, waives these rights and repeats the incriminating statements Courts admitted the statements made
at the second stage However, the Supreme Court
in Missouri v Seibert, 542 U.S 600, 124 S.Ct 2601,
159 L.Ed.2d 643(2004), ruled that this two-stage method violated Miranda The plurality decision left open the possibility that such a two-stage interrogation might be proper if more time elapsed between the two interviews and police had not“calculated” to evade Miranda
For criminal defendants, the privilege against self-incrimination includes the right to refuse to testify at trial A defendant may testify at a PRE-LIMINARY HEARINGon the admissibility of evidence without waiving the right to not testify at trial Incriminating statements made by a defendant in
a preliminary hearing are not admissible at trial, and the prosecutor may not comment on them The Supreme Court has held that the privilege is not compromised by laws that require persons to surrender identification to law enforcement personnel California v Byers,
402 U.S 424, 91 S Ct 1535, 29 L Ed 2d 9 (1971) A person who is suspected of a crime may be compelled to testify before aGRAND JURY,
a legislative body, or an administrative board The person must appear and answer questions, but he may claim the privilege against self-incrimination when necessary
124 PRIVILEGE AGAINST SELF-INCRIMINATION
Trang 8FURTHER READINGS
Cammack, Mark 2006 Advanced Criminal Procedure in a
Nutshell.2d ed St Paul, Minn.: Thomson West.
Garcia, Alfredo 2002 The Fifth Amendment: A
Comprehen-sive Approach.Westport, Conn.: Greenwood Press.
Stuart, Gary L 2008 Miranda: The Story of America’s Right
to Remain Silent.Tucson, Ariz.: Univ of Arizona Press.
CROSS REFERENCES
Circumstantial Evidence; Immunity; Testimony; Witnesses.
PRIVILEGED COMMUNICATION
An exchange of information between two
indivi-duals in a confidential relationship
A privileged communication is a private
statement that must be kept in confidence by
the recipient for the benefit of the
communica-tor Even if it is relevant to a case, a privileged
communication cannot be used as evidence in
court Privileged communications are
contro-versial because they exclude relevant facts from
the truth-seeking process
Generally, the laws that guide civil and
criminal trials are designed to allow the
admis-sion of relevant evidence Parties generally have
access to all information that will help yield a just
result in the case Privileged communications are
an exception to this rule
Privileged communications exist because
society values the privacy or purpose of certain
relationships The established privileged
com-munications are those between wife and
hus-band, clergy and communicant, psychotherapist
and patient, physician and patient, and attorney
and client
These relationships are protected for
various reasons The wife-husband and
clergy-communicant privileges protect the general
sanctity of marriage and religion The
psycho-therapist or physician and patient privilege
promotes full disclosure in the interests of the
patient’s health If patients were unable to keep
secret communications with psychotherapists or
physicians relating to treatment or diagnosis,
they might give doctors incomplete
tion If doctors received incomplete
informa-tion, they might be unable to administerHEALTH
CAREto the patient, which is the very purpose of
the doctor-patient relationship
The ATTORNEY-CLIENT PRIVILEGE exists for
roughly the same reason as thePHYSICIAN-PATIENT
PRIVILEGE In order to secure effective
representa-tion, a client must feel free to discuss all aspects
of a case without the fear that her attorney will be called at trial to repeat her statements Likewise,
to retain the client’s trust and do his job properly, the attorney must be allowed to withhold from the court and opposing party private communications with the client
A communication is not confidential, and therefore not privileged, if it is overheard by a
THIRD PARTYwho is not an agent of the listener
Agents include secretaries and other employees
of the listener For example, a communication between a psychotherapist and patient would be privileged even if the psychotherapist’s secretary happened to overhear it In such a case, the secretary could not be forced to testify about the communication However, a communication between a psychotherapist and a patient on a public elevator occupied by third parties would not be privileged and could be used in court
Privileged communications are not always absolute For instance, a criminalDEFENDANTmay
be able to access communications between an accuser and the accuser’s doctor if the defen-dant’s interest in the disclosure, in the opinion of the court, outweighs the interest in confidential-ity The court will consider such a request only if the defendant can establish a reasonable proba-bility that important information exists in the communication that will be relevant to the case
Various jurisdictions may apply the concept
of privilege in slightly different ways For example, some jurisdictions distinguish between the two parties to a communication, calling one party the keeper or holder of the privilege
Other states regard the privilege as being held, and capable of being asserted, by both parties
Some states, for example, give the MARITAL COMMUNICATIONS PRIVILEGEto both parties, allow-ing either party to avoid testifyallow-ing and to prevent the other from testifying as to commu-nications made within the privacy of the marital relationship Other states give the privilege to the testifying spouse This gives the testifying spouse the power to waive the privilege and testify against the other spouse
States occasionally change their laws to give the privilege to both parties or to take it from one of the parties For example, a state may give the privilege to both clergy and communicant
Under such a law, either party to the commu-nication could block its disclosure In the alternative, a state could give the privilege only to the communicant, in which case the
PRIVILEGED COMMUNICATION 125
Trang 9communicant could waive the privilege and obtain testimony from the cleric These varia-tions reflect the struggle by the courts to balance the need for information to reach a just result against the PUBLIC POLICY of encouraging free communication within certain relationships by making these communications privileged
For federal cases, the law of privileged communications is governed by the state law
in which the federal court sits Within particular jurisdictions, the precise rules regarding privi-leged communications may be periodically redefined or adjusted as new circumstances are presented In some states a person’s relation-ships with sexual ASSAULT counselors, social workers, and juvenile diversion officers have been given a qualified privilege of confidential-ity In these states the court may hold a private hearing to determine whether the information is necessary to the requesting party’s case or defense before ordering disclosure of the infor-mation Many legal advocates have supported the creation of a privilege between parents and offspring, but very few courts and legislatures have recognized such a privilege
FURTHER READINGS Chaikin, Lisa A 1995 “Privileged Communications Act Violates an Individual ’s Constitutional Right to Litigate and the Separation of Powers ” Suffolk University Law Review 29.
“Evidence.” 1994 SMH Bar Review.
Frieder, Pat 2000 Privileged Communications New York:
Bantam Books.
“1994 Legislative Update.” 1994 Colorado Law 23 (August).
“Parent-Child Loyalty and Testimonial Privilege.” 1987.
Harvard Law Review 100 (February).
“Revised Proposed Alabama Rules of Evidence.” 1994.
Alabama Law Review 46 (fall).
Slovenko, Ralph 1998 Psychotherapy and Confidentiality:
Testimonial Privileged Communication, Breach of Confi-dentiality, and Reporting Duties Springfield, Ill.: Charles
C Thomas.
Turfe, Edward M 1995 “A Trial Judge Must Conduct an In Camera Review of a Complainant ’s Privileged Com-munications When the Defendant Can Establish a Reasonable Probability That Material Information Exists in Such Communications ” University of Detroit Mercy Law Review 72.
Wallace, Lianne K 1994 “Privileged Communications in Sexual Assault Cases: Rhode Island ’s Treatment of Clergyman-Parishioner and Psychotherapist-Patient Communications.” Suffolk Univ Law Review 28.
CROSS REFERENCES Attorney-Client Privilege; Husband and Wife; Marital Communications Privilege; Physicians and Surgeons.
PRIVILEGES AND IMMUNITIES Concepts contained in the U.S Constitution that place the citizens of each state on an equal basis with citizens of other states in respect to advantages resulting from citizenship in those states and citizenship in the United States The Privileges and Immunities Clauses are found in Article IV of the U.S Constitution and theFOURTEENTH AMENDMENT Both clauses apply only to citizens of the United States.ALIENSand corporations are not citizens and, therefore, are not entitled to this protection These clauses have proven to be of little import because other constitutional provisions have been used to settle controversies In large part, the insignificance of the clauses has been based on restrictive readings
of the clauses by the U.S.SUPREME COURT Article IV provides that “The Citizens of each State shall be entitled to all Privileges and Immunities in the several states.” The purpose
of the clause was to facilitate the unification of the independent states into one nation so that citizens traveling throughout the country would receive the same treatment as the citizens of the states through which they passed
The privileges and immunities that are protected under Article IV include the right
to receive protection from state government; the right to acquire and possess all kinds of property; the right to travel through or reside in any state for purposes of trade, agriculture, or professional endeavors; the right to claim the benefit of the writ ofHABEAS CORPUS; the right to sue and defend actions in court; and the right to receive the same tax treatment as that of the citizens of the taxing state
This clause forbids a state from unjustly depriving citizens from other states of any rights derived from state citizenship solely on the basis
of nonresidence Yet, the U.S Supreme Court has never interpreted it to preclude all deferen-tial treatment of in-state citizens As a result, the Privileges and Immunities Clause does not bar differential state standards governing the prac-tice of certain professions Out-of-state doctors, lawyers, and other professionals may be required
to prove their competency based on standards that are higher than those applied to their in-state counterparts Tuition rates at public
COLLEGES AND UNIVERSITIESare typically lower for in-state students Out-of-state residents are charged more for hunting and fishing licenses than are in-state residents Such discrepancies
126 PRIVILEGES AND IMMUNITIES
Trang 10are generally accepted as justifiable because they
advance legitimate state interests
The Supreme Court has struck down state
laws that infringed rights guaranteed by the
Privileges and Immunities Clause of Article IV
In Hicklin v Orbeck, 437 U.S 518, 98 S Ct
2482, 57 L Ed 2d 397 (1978), the court ruled
that the state of Alaska failed to show a
reasonable purpose for a state law that required
employers to give a hiring preference to in-state
residents who applied to work on the
construc-tion of oil or gas pipelines A recent lower court
case illustrates the reach of the clause In
Council of Ins Agents & Brokers v
Molasky-Arman 522 F.3d 925 (9th Cir.2008), the appeals
court held that the ability of a citizen of one
state to act as an insurance agent or BROKER in
another state must be considered aFUNDAMENTAL
RIGHT or privilege protected by the Privileges
and Immunities Clause because insurance and
occupations in the insurance industry are
important to the national economy
However, the Supreme Court has rarely
used the Privileges and Immunities Clause of
Article IV to invalidate discriminatory laws The
Due Process and EQUAL PROTECTION Clauses of
the Fourteenth Amendment are commonly
applied to determine the validity of state laws
that unjustly discriminate between residents and
nonresidents of a state
The Fourteenth Amendment’s Privileges
and Immunities Clause has virtually no
signifi-cance inCIVIL RIGHTSlaw The clause states,“No
state shall make or enforce any law which shall
abridge the privileges or immunities of citizens
of the United States.” This clause protects a
person’s rights as a citizen of the United States
from unreasonableSTATE ACTIONor interference
The privileges and immunities of U.S
citi-zenship that cannot be unreasonably abridged by
state laws include the right to travel from state to
state; the right to vote for federal officeholders;
the right to enter PUBLIC LANDS; the right to
petition Congress to redress grievances; the right
to inform the national government of a violation
of its laws; the right to receive protection from
violence when in federal CUSTODY; the right to
have free access to U.S seaports; the right to
transact business with and engage in
administer-ing the functions of the U.S government; the
right to have access to federal courts; and the
privilege of the writ of habeas corpus
The Supreme Court has narrowly construed the Privileges and Immunities Clause of the Fourteenth Amendment since the 1873 SLAUGH-TER-HOUSE CASES, 83 U.S (16 Wall.) 36, 21 L Ed
394 (1873) The case involved a Louisiana state law that gave one meat company the exclusive right to slaughter livestock in New Orleans
Other packing companies were required to pay
a fee for using the slaughterhouses These companies filed suit, claiming that the law violated the Privileges and Immunities Clause of the Fourteenth Amendment
The court upheld the Louisiana monopoly law, ruling that the Privileges and Immunities Clause had limited effect because it reached only privileges and immunities guaranteed by U.S
citizenship, not state citizenship Because the law in question dealt with states’ rights, the Fourteenth Amendment had no effect The court ruled that the Fourteenth Amendment was designed to grant former slaves legal equality, not to grant expanded rights to the general population In addition, the court was concerned that a broad interpretation of the Fourteenth Amendment would give too much power to the federal government and distort the concept ofFEDERALISM, which grants the states a large measure of power and autonomy
The court has consistently followed the restrictive interpretation given the Privileges and Immunities Clause by this decision The clause has little significance today in invalidat-ing state statutes that present a constitutional question When state laws infringe the funda-mental rights of U.S citizenship, the court usually invokes the Equal Protection Clause to analyze the constitutionality of the state action
However, the Supreme Court used the Privileges and Immunities Clauses in Lunding
v New York Tax Appeals Tribunal, 522 U.S 287,
118 S.Ct 766, 139 L.Ed.2d 717 (1998), to strike down a New York tax law that effectively denied only nonresident taxpayers an INCOME TAXdeduction forALIMONY In Saenz v Doe, 526 U.S 489, 119 S.Ct 1518, 143 L.Ed.2d 689 (1999), the court struck down a California law that limited new residents to the WELFARE
benefits they would have received in the state
of their prior residence It based its decision in part on the Privileges and Immunities Clause
JusticeJOHN PAUL STEVENSstated that the right to travel is protected“not only by the new arrival’s status as a state citizen, but also by her status as
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