A Psychological Critique of the Assumptions Underlying the Law of Evidentiary Privileges: Insights from the Literature on Self-Disclosure

Abstract

The modern law of privileges rests on Wigmore's paradigm. One of his principal tenets was that communications privileges must be absolute in character. He based that tenet on the instrumental rationale for recognizing privileges. Wigmore assumed that but for the assurance of confidentiality provided by an absolute privilege, the typical layperson such as a client would be unwilling to confer and confide in professionals such as attorneys. In the past few decades, there have been several empirical studies of the willingness of clients and patients to make revelations to confidants such as attorneys and psychotherapists.

However, to date, legal commentators have ignored the large body of literature on the psychology of self-disclosure. This article surveys that literature and attempts to identify the research findings with the most significant implications for evidentiary doctrine. Psychology paints a far more complex picture of the motivations of human beings contemplating self-disclosure than Wigmore posited. In many cases, the layperson may have such an overpowering need to disclose that there is no need to provide an absolute evidentiary privilege to remove disincentives to disclosure. However, the psychological literature also suggests that under a regime of qualified privileges, in some cases the judge should attach great weight to the layperson's need for intimate communication. In some cases, the inhibition of disclosure can not only impair the layperson's ability to resolve the legal or medical problem which prompts the consultation; worse still, there are instances in which inhibition can have serious, long-term repercussions for the layperson's physical and mental health.