Privilege

 

Franklin County Criminal Law Casebook

Reproduced with permission from:
David L. Strait and the Franklin County Public Defender Office
 

Evidence Rule 501: "The privilege of a witness, person, state or political subdivision thereof shall be governed by statute enacted by the General Assemble or by principles of common law as interpreted by the courts of this state in the light of reason or experience."
 
R.C. 2317.02(A) -- Attorney-client privilege.
R.C. 2317.02(B) -- Physician-patient, dentist-patient privilege.
R.C. 2317.02(C) -- Clergyman-confessor privilege.
R.C. 2317.02(D) -- Husband-wife privilege.
R.C. 2317.02(G) -- School guidance counsellor-client privilege.
R.C. 2317.02(H) -- Mediator in a domestic relations case-parent privilege.
R.C. 4732.19 -- Psychologist-client privilege.

Husband-Wife Privilege

Privilege in this area has two aspects: (1) Whether the spouse is competent to testify pursuant to Evidence Rule 601 and R.C. 2945.42. (2) Whether the subject matter of the testimony is reached by the husband-wife privilege set forth in R.C. 2317.02(D).
 
State v. Davis, 127 Ohio St. 3d 268, 2010-Ohio-5706 – Wife testified at her husband’s trial after being called by the state. The court failed to comply with Evid.R. 601(B) which requires informing the spouse she is not competent to testify against her spouse unless she chooses to do so, then making a finding if she has voluntarily chosen to testify. Though this was not assigned as error by appellate counsel, the Eighth District raised the issue sua sponte and reversed as plain error. But its opinion did not set forth plain error analysis. Syllabus: “An appellate court may not reverse a conviction for plain error based on the admission of spousal testimony in violation of Evid.R. 601(B) unless it conducts a plain-error analysis pursuant to State v. Adamson (1995), 72 Ohio St. 3d431, 650 N.E.2d 875, and determines that but for the error in admitting the spouse’s testimony, the outcome of the trial would have been different and that reversal is necessary to prevent a manifest miscarriage of justice.” On remand the Court of Appeals concludes plain error reversal is not required as the wife merely corroborated the accounts of the victims which were detailed. State v. Davis, 195 Ohio App. 3d 123, 2011-Ohio-2387.
 
State v. Perez, 124 Ohio St. 3d 122, 2009-Ohio-6179, ¶110-122 – Wife acting on behalf of the police recorded a jailhouse conversation with her husband. While she could not testify as to this conversation, admission of the tape was OK.
 
State v. Baker (2000), 137 Ohio App. 3d 628, 644-646 -- (1) The rules of evidence do not apply to grand jury proceedings except with respect to privilege. Defendant claimed common-law wife testified in violation of spousal privilege. In order to defeat the indictment because of the grand jury's exposure to improper information, defendant had to show the grand jury lacked other non-privileged testimony that could have formed the basis for the indictment. Trial court did not review entire grand jury transcript and that transcript is not before the court of appeals, so denial of motion to dismiss is affirmed. (2) As to the admissibility of the same testimony at trial, statements were not made during coverture, in view of past divorce and no ceremonial remarriage, defendant's active dating of another woman, and representations as to marital status when served with new divorce papers and in transfer of property.
 
State v. Brown, 115 Ohio St. 3d 55, 2007-Ohio-4837 -- In a capital case it was disputed whether a marriage existed between the defendant and the only eyewitness. Counsel was ineffective for not requesting the judge formally decide whether a marriage existed, and if it did, proceeding to have the wife advised pursuant to Evid. R. 601 that she was not competent to testify until she made a deliberate choice to do so. See Fn. 2 concerning the applicability of spousal privilege which is a separate issue.
 
State v. Adamson (1995), 72 Ohio St. 3d 431, 433-434 -- "Spousal privilege and spousal competency are distinct legal concepts which interrelate and provide two different levels of protection for communications between spouses. Under R.C. 2945.42, an accused may prevent a spouse from testifying about private acts or communications. However, even when the privilege does not apply because another person witnessed the acts or communications, a spouse still is not competent to testify about those acts or communications unless she specifically elects to testify. While the presence of a witness strips away the protection of the privilege, the protection provided pursuant to Evid. R. 601 remains."
 
State v. Carpenter (1992), 83 Ohio App. 3d 842 -- A spouse is not a competent witness unless allowed the opportunity to elect whether or not to testify. Under the present form of Evid. R. 601(B) whether or not to testify is at the option of the spouse called as a witness, instead of at the option of the spouse against whom the testimony is offered. However, R.C. 2945.42 still allows the defendant-spouse to make the election in most circumstances. (As to whether the rule superseded the statute, argument is that it does not as it confers a substantive right and is not merely procedural.)
 
State v. Shaffer (1996), 114 Ohio App. 3d 97, 101 -- Pursuant to Evid. R. 601 wife was competent to testify against husband because she elected to do so. R.C. 2945.42 privilege did not apply to tapes of their telephone conversations while they were separated.
 
State v. Ellis (1992), 83 Ohio App. 3d 362 -- Defendant involved his minor girlfriend in a theft from the convenience store where she worked and later married her. Held that she was competent to testify against him both as to a contributing to delinquency charge (wherein she was the victim) and the related theft charge.
 
State v. Antill (1964), 176 Ohio St. 61 -- When a wife is the victim of a felonious assault by her husband, she is competent to testify against him and does not have the option of refusing to testify. Also see State v. Bryant (1988), 56 Ohio App. 3d 20.
 
State v. Savage (1987), 30 Ohio St. 3d 1 -- Syllabus: "A witness is not 'unavailable' under Evid. R. 804(A)(1) when he is ruled incompetent to testify under Evid. R. 601(B)" State wanted to use wife's testimony at preliminary hearing after privilege was asserted at trial.
 
State v. Rahman (1986), 23 Ohio St. 3d 146 -- Syllabus: "Although a spouse may be competent to testify in a criminal trial, R.C. 2945.42 confers a substantive right upon the accused to exclude privileged spousal testimony concerning a confidential communication made or act done during coverture unless a third person was present or one of the other specifically enumerated exceptions contained in the statute is applicable." For the rule in federal courts compare Trammel v. United States (1980), 445 U.S. 40.
 
State v. Burkitt (1993), 89 Ohio App. 3d 214, 227 -- Husband-wife privilege applies to common law marriages.
 
Umbenbower v. Labus (1912), 85 Ohio St. 238 -- A valid common law marriage is established when there is "(a)n agreement of marriage in praesenti when made by parties competent to contract, accompanied and followed by cohabitation as husband and wife, they being so treated and reputed in the community in which they move..." Note: R.C. 3105.12 has amended so as not to recognize common law marriages purportedly entered into after October 10, 1991. Common law marriages entered into prior to that date remain valid.
 
State v. Lynch (1915), 5 Ohio App. 16, 24-27 -- Privilege does not apply when the marriage is bigamous.
 
State v. Phelps (1995), 100 Ohio App. 3d 187 -- State wished to call codefendant wife in a homicide case. Finding a common law marriage existed, the trial court sustained a motion in limine and the prosecutor appealed. Affirmed. Islamic marriage ceremony and other indicia supported finding marriage existed. While testimony concerning acts done in the presence of a third person (the deceased) is not privileged, the wife is not competent to be a witness pursuant to Evid. R. 601.
 
Diehl v. Wilmont Castle Co. (1971), 26 Ohio St. 2d 249, 252 -- "We hold...that the privilege conferred under the favor of R.C. 2317.02 is personal to husband and wife and may not be invoked by a third party."
 
State v. Bradley (1986), 30 Ohio App. 3d 181 -- (1) Spousal privilege does not apply when parties are separated and pursuing relationships with other people. Also see McEntire v. McEntire (1923), 107 Ohio St. 510. (2) At p. 184: "Where the record is silent as to the presence of a third person, there is a presumption of the admissibility of the spousal testimony." Also see Bentleyville v. Pisani (1995), 100 Ohio App. 3d 515.
 
State v. Mowery (1982), 1 Ohio St. 3d 192 -- Defendant maintained his wife could not testify concerning the shooting of man he found her in compromising circumstances with. Syllabus: "(1) R.C. 2945.42 and Evid. R. 601 do not render the spouse of an accused incompetent to testify against the accused with respect to a crime committed against a third person, when such crime is part of one continuous transaction or happening which culminates in offenses against the third party and the spouse. (2) An accused may not assert a privilege under R.C. 2945.42 to preclude a spouse from testifying with respect to a crime committed against a third person, where the crime is committed in the known presence of such third person, as well as in the presence of the testifying spouse." Also see State v. Fewerwerker (1985), 24 Ohio App. 3d 27.
 
State v. Howard (1990), 62 Ohio App 3d 910 -- Syllabus prepared by the court: "(1) A conversation between spouses is not privileged and is admissible in a criminal trial when the conversation was conducted in the presence or hearing of third parties. (2) Ohio's spousal privilege statutes protect oral communications with one's spouse intended to be private, but do not protect written communications with one's spouse, even though it is reasonably expected that the communication will remain confidential. [Also see Holtz v. Dick  (1884), 42 Ohio St. 23] (3) A recording of a telephone conversation is admissible in evidence when one of the parties to the conversation has given prior consent to the recording."
 
State v. Jaschik (1993), 85 Ohio App. 3d 589, 597-600 -- Privilege held not to prevent the use of information obtained from wife to secure a search warrant, though it would have prevented her testimony at trial. Wife provided information to her first husband, who was a police officer, who then obtained a warrant leading to drug conviction of her second husband.
 
State v. Adamson (1998), 83 Ohio St. 3d 248 -- Immunity granted wife under R.C. 2945.44 continued even though she refused to testify at a retrial. The immunity statute requires compliance, but not the sort of full compliance the state claimed. Wife exercised her 5th Amendment privilege at husband's first trial, then was granted immunity and testified. Conviction was reversed because she was not competent to testify due to the marital relationship. After she refused to testify at the second trial she was indicted for her role in the homicide, in violation of the grant of immunity.

Physician-Patient Privilege

Ward v. Summa Health System, 128 Ohio St. 3d 212, 2010-Ohio-6275 – Pursuant to R.C. 2317.02(B) physician-patient privilege does not preclude discovery of medical information from a patient. The “patient” in this case was the surgeon who operated on the plaintiff. Hospital notified plaintiff he may have been exposed to hepatitis during heart surgery. After he tested positive for the virus a malpractice suit was brought. Facing deposition, the surgeon invoked physician-patient privilege with regard to questions concerning his own, personal medical information. Trial court granted the order despite a proffer as to plaintiffs’ belief the surgeon might be the source of exposure. Court of Appeals reversed. Supreme Court affirms, but notes surgeon might seek a protective order on some other basis.
 
State v. Jones (2000), 90 Ohio St. 3d 403 -- In a capital case ineffective assistance of counsel was claimed based on trial counsel's failure to assert physician-patient privilege with respect to treatment of a hand injury offered as circumstantial evidence. Court concludes privilege would have been unavailable as the injury appeared to be from hand to mouth contact suggesting an offense of violence the doctor would have been required to report pursuant to R.C. 2921.22(B) when substantiated by his contact with investigators. See concurring opinion.
 
State v. Pulaski, 154 Ohio App. 3d 301, 2003-Ohio-4847, ¶ 59 -- The R.C. 2317.02(B)(2) exception to physician-patient privilege for hospital test results is not subject to the 42 U.S.C. 290dd-2(c) requirement of a court order if the patient is being treated only for injuries resulting from a traffic accident. The federal statute only applies to records of those seeking treatment for drug or alcohol abuse. Also see Middletown v. Newtown, 125 Ohio App. 3d 540.
 
State v. Gonzalez, 154 Ohio App. 3d 9, 2003-Ohio-4421 -- Access to medical records concerning HIV status requires a subpoena during investigation, but court authorization for use at trial. The statute authorizing access to such records is an exception to doctor-patient privilege.
 
State v. Desper, 151 Ohio App. 3d 208, 2002-Ohio-7176, ¶30-49 -- The physician-patient privilege is not a constitutional privacy right. In an oxycontin investigation questionnaires were submitted to physicians who had provided prescriptions to suspects. Some questions asked for general information beyond the statutory privilege. Question which did call for disclosure of communication was calculated to detect lies to the physician. Lies are not covered by the privilege.
 
State v. Brown (1993), 90 Ohio App. 3d 674, 689 -- "...(T)he physician-patient privilege is not waived merely because the patient testifies."
 
Moore v. Grandview Hospital (1986), 25 Ohio St. 3d 194 -- Syllabus: "Where the physician-patient privilege contained in R.C. 2317.02(B) has not been waived, a non-party treating physician may testify as an expert witness 'provided that in answering the questions he disregards what he has learned and observed while attending the patient and his own opinion formed therefrom.' (Strizak v. Industrial Comm. [1953], 159 Ohio St. 475, paragraph two of the syllabus, applied and followed.)"
 
State v. Treadway (1974), 69 Ohio Ops. 2d 507 -- In a prosecution for the alteration of a prescription by a patient, the history and the contents of the prescription are not privileged.
 
State v. Garrett (1983), 8 Ohio App. 3d 244 -- Privilege does not extend to false statements made by person seeking a prescription where there is no evidence that the drug was obtained for treatment of any medical illness, disease or disorder.
 
State v. Spencer (1998), 126 Ohio App. 3d 335 -- Subpoena duces tecum was served on physician concerning steroid prescriptions. Majority holds that the physician-patient relationship was not established where communication was related to fraud or criminal activity. Thus, the privilege is not available.
 
State v. Webb (1994), 70 Ohio St. 3d 325, 334 -- Admission of hospital records to rebut claims made by the defendant concerning his health held to be improper under R.C. 2317.02(B), though the error was harmless.
 
State v. Robbins (September 22, 1994), Franklin Co. App. No. 94APC02-276, unreported (1994 Opinions 4498) -- In an OMVI prosecution the state may successfully subpoena hospital test results as to blood-alcohol level. Amendment of R.C. 2317.02 now excludes such test results from the physician-patient privilege. State v. Smorgala (1990), 50 Ohio St. 3d 222 still stands for the proposition that the courts may not create an exception to the privilege, though, the legislature can.
 
State v. Cherukuri (1992), 79 Ohio App. 3d 228 -- The physician-patient privilege codified in R.C. 2317.02 may extend to nurses, if the acquisition of information obtained by them in the course of their duties was intended to assist the physician in the treatment or diagnosis of the patient. Also see Johnson v. Miami Valley Hospital (1989), 61 Ohio App. 3d 81, 84-85; State v. Kabeller (December 20, 1990), Franklin Co. App. No. 90-AP-53, unreported (1990 Opinions 5835).
 
State v. McGriff (1996), 109 Ohio St. 3d 668, 670 -- "(P)roperly censored medical records containing evidence of a physician's criminal activity may be utilized as evidence in a criminal prosecution against the doctor. Accordingly, the defendant doctor in this case should not be permitted to invoke his patients' privilege in order to shield himself from prosecution." See dissent.
 
State v. Lampham (1992), 82 Ohio App. 3d 515 -- The physician-patient privilege extends to the medical technologist who performs a blood alcohol test and to related medical records. Result is not changed by circumstances where defendant withdrew initial consent to have sample drawn, but patrolman insisted it be done anyway.
 
In re Winstead (1980), 67 Ohio App. 2d 111 -- With regard to involuntary commitment proceedings, court finds the physician-patient privilege does not apply to the testimony of a physician employed by the hospital for purposes of the hearing. The basis of the privilege is voluntary consultation by the patient seeking help.
 
In re Decker (1984), 20 Ohio App. 3d 203 -- Headnote: "In an action seeking a determination of dependency and neglect and an order of permanent custody of a child, the statutes of Ohio make no exception to the privilege attaching to the communications between psychiatrist and patient, psychologist and patient (or client), and to the privilege, if it exists, between social workers employed in the office of the psychiatrist and psychologist and client."

Psychologist or Psychiatrist-Client Privilege

In re Jones, 99 Ohio St. 3d 203, 2003-Ohio-3182 -- Syllabus: "(1) Statements made by an individual to a licensed psychologist or licensed independent social worker in the course of an examination ordered by a court for forensic purposes are not communications received "from a client in that relation," R.C. 2317.02(G)(1), and are not protected as privileged communications pursuant to R.C. 4732.19 and former R.C. 2317.02, 147 Ohio Laws, Part III, 4686, 4702 as in effect prior to April 10, 2001, the effective date of 2000 Sub. H.B. No. 506." Neglect-dependency case. Communications with one therapist were treatment-focused and privileged.
 
State v. Wood (2001), 141 Ohio App. 3d 634 -- "...(B)ecause the psychologist-patient privilege provided for in R.C. 4732.19 and 2317.02(B) is in derogation of the common law, it must be strictly construed. Since R.C. 4732.19 expressly refers to licensed psychologists, it cannot be interpreted to cover unlicensed psychologists, where there is no evidence that the unlicensed psychologist is merely assisting a licensed psychologist, or that a licensed psychologist was playing a direct, supervisory role in the patient's treatment." Compare State v. Farthing 146 Ohio App. 3d 720, 2001-Ohio-7077 where Wood is distinguished, as the unlicensed psychologist worked under the supervision of a licensed psychologist. Statements came in anyway as inmate signed a blanked waiver when admitted at the prison.
 
State v. Evans (2001), 144 Ohio App. 3d 539 -- Though the appeal raised only constitutional issues, court notes that an incarcerated juvenile's statements to counselors may have been inadmissible under R.C. 2317.02(G)(1) or under federal statutes pertaining to confidentiality of patient records in federally assisted substance abuse programs. [See Title 42, U.S.C., Sec. 290dd-2.]
 
In re Smith (1982), 7 Ohio App. 3d 75, 77-78 -- The psychologist-client privilege does not apply when the subjects were brought to the psychologist by a caseworker and not because they were voluntarily seeking help. Witness had testified did not have a choice in going to office.
 
In re Decker (1984), 20 Ohio App. 3d 203 -- Privilege remains where relationship with counsellor predated intervention of child welfare agency and related to additional concerns of the clients. In re Smith distinguished.
 
State v. Hopfer (1996), 112 Ohio App. 3d 521, 553 -- Psychiatrist's examination was in preparation for a juvenile court bindover hearing and not for treatment. No physician-patient relationship existed, thus there was no privilege. Result would have been different had psychiatrist been court appointed. See Juv. R. 32(B). Also see State v. Fears (1999), 86 Ohio St. 3d 329, 343
 
State v. Stewart (1996), 111 Ohio App. 3d 525, 530-531 -- Automatic waiver provision of R.C. 2317.02(B) and 2151.421(A)(3) were triggered where victim was under eighteen, psychologist had reason to believe she had been sexually abused, and privileged communication did not arise from an attempt to get an abortion.
 
In re Brown (1994), 98 Ohio App. 3d 337 -- Release of psychiatrist's records to agency did not constitute a waiver of privilege allowing agency to call psychiatrist as a witness.

Absolute Privilege in a Judicial Proceeding

 
M.J. DiCorpo, Inc. v. Sweeney (1994), 69 Ohio St. 3d 497 -- Syllabus: "An affidavit, statement or other information provided to a prosecuting attorney, reporting the actual or possible commission of a crime, is part of a judicial proceeding. The informant is entitled to an absolute privilege against civil liability for statements made which bear some reasonable relation to the activity reported."
 
Hecht v. Levin (1993), 66 Ohio St. 3d 458 -- Paragraphs one and two of the syllabus: "(1) A complaint filed with the grievance committee of a local bar association is part of a judicial proceeding. (2) A statement made in the course of an attorney disciplinary proceeding enjoys an absolute privilege against a civil action based thereon as long as the statement bears some reasonable relation to the proceeding. (Surace v. Wuliger [1986], 25 Ohio St. 3d 229...approved and followed.)" Also see Elsass v. Tabler (1999), 131 Ohio App. 3d 66.

Miscellaneous

In re Weiland (2000), 89 Ohio St. 3d 535 -- In termination of parental rights proceedings agency sought to introduce records and testimony concerning mother's treatment for substance abuse. Court of Appeals held privileges applied if communication between patient and provider were related to court-ordered treatment, but not to communications made in the course of examinations or evaluations for forensic purposes. Syllabus holds that in the absence of a specific statutory waiver or exemption, the testimonial privileges established by the various privilege statutes apply to communications by a parent in the course of treatment ordered as part of a reunification plan in an action for dependency and neglect.
 
State v. Orwick, 153 Ohio App. 3d 65, 2003-Ohio-2682 -- Parent indicted for sex offenses was admitted to mental health center after threatening suicide. State subpoenaed records for use in the prosecution. Defendant interposed privilege attached to communication with a licensed social worker. Trial court found one document was subject to the R.C. 2317.02(G)(1)(a) exception for communications indicating a clear and present danger to others tied to past or present child abuse or neglect. No abuse of discretion found in this determination. However, one exception did not open the floodgates to total disclosure as argued by the prosecutor on cross-appeal.
 
Everage v. Elk & Elk, 159 Ohio App. 3d 220, 2004-Ohio-6186 -- Gov. Bar. R. V(11)(E) makes all documents relating to review and investigation of grievances private unless waived by the respondent attorney. Such documents may not be reached through discovery. Disciplinary proceedings become public only when certified by a probable cause panel.
 
Voss v. Voss (1989), 62 Ohio App. 200 -- Since the civil discovery rules do not require disclosure of privileged matter, trial court was without authority to order a party to sign a waiver for release of privileged materials.
 
In re Estate of Soeder (1966), 7 Ohio App. 2d 271, 300-307 -- For the clergyman-confessor privilege to apply, the communication must be in the nature of a confession and not mere conversation. Also see Radecki v. Schuckardt (1976), 50 Ohio App. 2d 92, 96-97.
 

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Published by David L. Strait
 
Copyright © Franklin County Public Defender and David L. Strait, 2015
 
Contents may not be duplicated without express permission.

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