In General
In general
• Except as provided by constitution, statute, any rules promulgated by the Indiana Supreme Court, or common law , no person has a privilege to: (1) refuse to be a witness; (2) refuse to disclose any matter; (3) refuse to produce any object or writing; or (4) prevent another person from being a witness or from disclosing any matter or from producing any object or writing.
• However, because privileges may exclude otherwise reliable and relevant information, Indiana courts have frequently agreed that privileges should be disfavored and strictly construed.
See, e.g., Hulett v. State, 552 N.E.2d 47, 49 (Ind. Ct. App. 1990)
• The purpose of the privilege was not to suppress the truth.
Collins v. Bair, 268 N.E.2d 95, 98 (Ind. 1971)
• Whatever their origins, these exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.
United States v. Nixon, 418 U.S. 683, 710 (1974)
• Many Indiana privileges are codified. Privileges listed in statute are: (1) attorney-client; (2) spousal; (3) physician-patient; and (4) clergy-penitent.
Waiver: Voluntary disclosure
• Subject to Rule 502, a person with a privilege against disclosure waives that privilege if the person or person’s predecessor while holder of the privilege voluntarily and intentionally discloses or consents to disclosure of any significant part of the privileged matter.
• This rule does not apply if the disclosure itself is privileged.
• Voluntary waiver may also be accomplished when the defendant creates an estoppel to a given privilege.
See, e.g., Owen v. Owen, 563 N.E.2d 605 (Ind. 1990) [In this case, the filing of a suit placing a physical condition in issue resulted in waiver of the physician-patient privilege.]
• If the holder of the privilege discloses the communication to a third person not within the scope of the privilege, the privilege is destroyed. For example, Thomas v. State, in relating the details of the attack to Detective Leisure, Cleora [the victim] impliedly waived the privilege with respect to statements made to Dr. Massicotte pertaining to the same subject matter as was discussed with Detective Leisure.
See Thomas v. State, 656 N.E.2d 819 (Ind. Ct. App. 1995) [Note also that voluntary intoxication at the time of disclosure does not mitigate the event of disclosure.]
• In deciding whether an accidental disclosure (such as what might happen during the discovery process) works a forfeiture of a privilege, Indiana courts consider the reasonableness of any precautions to prevent inadvertent disclosure, time taken to rectify the error, the scope of discovery, extent of the disclosure, and the care, negligence or indifference with which the privilege was guarded.
See JWP Zack, Inc. v. Hoosier Energy Rural Elec. Co-op Inc., 709 N.E.2d 336, 341-42 (Ind. Ct. App. 1999)
Privileged matter disclosed under compulsion or without opportunity to claim privilege
• A claim of privilege is not defeated by a disclosure which was: (1) compelled erroneously; or (2) made without opportunity to claim the privilege.
Comment upon or inference from claim of privilege
• Neither the judge nor counsel may comment upon the claim of a privilege, whether in the present proceeding or on a prior occasion. No inference may be drawn from the claim of a privilege.
• In jury cases, the judge, to the extent practicable, must conduct proceedings so as to allow parties and witnesses to claim privilege without the jury’s knowledge.
See Stephenson v. State, 864 N.E.2d 1022, 1047 (Ind. 2007)
• A party waives the issue of jury knowledge of claim of privilege by declining to participate in proceedings outside the jury's presence and by failing to object.
See Sparks v. State, 537 N.E.2d 1179, 1184 (Ind. 1989)
Jury instructions
• If requested by a party against whom the jury might draw an adverse inference from a claim of privilege, the court must instruct the jury that the jury must not draw an adverse inference from the claim of privilege.