The Dangerous Trend Blurring the Distinction between a Reasonable Expectation of Confidentiality in Privilege Law and a Reasonable Expectation of Privacy in Fourth Amendment Jurisprudence
35 Pages Posted: 8 Dec 2010
Date Written: December 7, 2010
In the past few years a new trend has emerged in the privilege case law. The traditional view is that a privilege claimant must show that at the time of the allegedly protected communication, he or she had a reasonable "expectation of confidentiality." However, in recent years some courts have abandoned the traditional terminology and begun using the expression, a reasonable "expectation of privacy." That expression is a term of art in Fourth Amendment jurisprudence. It is the expression that Justice Harlan coined in his famous concurrence in Katz v. United States, 389 U.S. 347 (1967) to define the scope of Fourth Amendment coverage.
Not only are the privilege cases beginning to use this expression more frequently; there are also indications that some courts are beginning to import Fourth Amendment doctrines into privilege law. The purpose of this short article is to criticize that trend. The article's introduction notes the trend. The first part of the article outlines the general differences between the Fourth Amendment exclusionary rule and privileges for confidential communications. The second part of the article focuses more specifically on the distinctions between an expectation of confidentiality and an expectation of privacy. The third and final part of the article identifies the untoward consequences that may flow if the courts continue to blue the distinction between the two concepts.
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