c. Testimonial Privilege

Privilege<br>

A privilege is a rule of law that, to protect a particular relationship or interest, either permits a witness to refrain from giving testimony he otherwise could be compelled to give, or permits someone usually one of the parties, to prevent the witness from revealing certain information. [Herrera]

Privilege may only be invoked by the persons protected thereunder. It may also be waived by the same persons, either impliedly or expressly.

Note: this Section was substantially amended in the 2019 Revised Rules

i. Husband and Wife<br>

Also known as marital privilege

When not applicable<br>

• When the communication was not intended to be kept in confidence
• When the communication was made prior to the marriage
• Waiver of the privilege [Herrera]

Exceptions

• Furtherance of crime or fraud
• If the services or advice of the lawyer were sought or obtained
• To enable or aid anyone
• To commit or plan to commit
• What the client knew or reasonably should have known to be a crime or fraud [Sec. 24(b)(i), Rule 130]
• Claimants through same deceased client
• As to communication relevant to an issue between parties who
• Claim through the same deceased client
• Regardless of whether the claims are by testate, intestate, or inter vivos transaction [Sec. 24(b)(ii), Rule 130]
• Breach of duty by lawyer or client
• As to communications relevant to an issue of breach of duty
• By the lawyer to his/her client; or
• By the client to his/her lawyer [Sec. 24(b)(iii), Rule 130]
• Document attested by the lawyer
• As to communication relevant to an issue concerning an attested document
• The lawyer is an attesting witness [Sec. 24(b)(iv), Rule 130]
• Joint clients
• As to a communication relevant to a matter of common interest between two or more clients
• The communication was made by any of them to
• The lawyer retained or consulted in common
• Communication is offered in an action between any of the clients
• Neither expressly agreed otherwise [Sec. 24(b)(v), Rule 130]

Duration of the privilege<br>

In the absence of a statute, the privilege is permanent. It may even be claimed by a client’s executor or administrator after the client’s death [Herrera]

Physician allowed to testify as an expert<br>

A doctor is allowed to be an expert witness when he does not disclose anything obtained in the course of his examination, interview and treatment of a patient. [Lim v. C.A., G.R. No. 91114 (1992)]

Duration of privilege<br>

The privilege survives the death of the patient. [Riano, 212, 16th Ed.]

Rule on Third Parties

The communication shall remain privileged, even in the hands of a third person who may have obtained the information, provided that the original parties to the communication took reasonable precaution to protect its confidentiality. [Sec. 24, Rule 130 (last par.)]

Note: This amendment is a stark contrast from the previous rule which removes the privilege from communication that landed in the hands of third parties.

Parental and Filial Privilege Rule

Disqualification by reason of marriage

Husband and Wife (Marital Communications Privilege)

Requisites:

• There must be a valid marriage between husband and wife;
• There is a communication received in confidence by one from the other;
• The confidential communication was received during the marriage; and
• The spouse against whom such is being offered has not given his/her consent to such testimony

A widow of a victim allegedly murdered may testify as to her husband’s dying declaration as to how he died since the same was not intended to be confidential (U.S. v. Antipolo, G.R. No. L-13109, 1918)

The privilege applies to any form of confidential disclosure both in words and in conduct.

The privilege does NOT apply:

• When the husband or wife testifies against the other in a civil case instituted by one against the other.
• When the husband or wife testifies against the other in a criminal case for a crime committed by one against the other or the latter’s direct ascendants or descendants.
• When there is waiver, such as in failure to object on a timely basis to its presentation or by any conduct that may be construed as implied consent (Lacurom v. Jacoba, A.C. No. 5921, 2006)

Physician and Patient

Reason:

This rule on the physician-patient privilege is intended to facilitate and make safe, full and confidential disclosure by the patient to the physician of all facts, circumstances and symptoms, untrammeled by apprehension of their subsequent and enforced disclosure and publication on the witness stand, to the end that the physician may form a correct opinion, and be enabled safely and efficaciously to treat his patient.

Requisites:

• The privilege is claimed in a civil case;
• The person against whom the privilege is claimed is one duly authorized to practice medicine, surgery or obstetrics;
• Such person acquired the information while he was attending to the patient;
• The information was necessary to enable him to act in that capacity; and
• The information was confidential and if disclosed would blacken the reputation of the patient. (Lim v. Court of Appeals, G.R. No. 91114, 1992)

NOTE: The 2019 amendments to the Rules of Evidence have removed the requirement that the information involved “would blacken the reputation of the patient”.

Duration of privilege

The privilege survives the death of the patient. After one has gone to his grave, the living are not permitted to impair his name and disgrace his memory by dragging to light communications and disclosures made under the seal of the statute. (Gonzales v. CA, G.R. No. 117740, 1998).

Hospital Records during Discovery Procedure

To allow the disclosure during discovery procedure of the hospital records would be to allow access to evidence that is inadmissible without the patient’s consent. Disclosing them would be the equivalent of compelling the physician to testify on privileged matters he gained while dealing with the patient, without the latter’s prior consent. (Chan v. Chan, G.R. No. 179786, 2013)

NOTE: A psychologist or psychometrician cannot, without the consent of the client/patient, be examined on any communication or information disclosed and/or acquired in the course of giving psychological services to such client. The protection accorded herein shall extend to all pertinent records and shall be available to the secretary, clerk or other staff of the licensed psychologist or psychometrician. (Sec. 30 of R.A. 10029, Philippine Psychology Act of 2009) This has been incorporated into the privilege under the 2019 amendments which include “psychotherapists” within the coverage of the privilege.

The Privilege Does Not Apply:

• Where a minister is consulted not as such (e.g., he is consulted as a friend or interpreter).
• Where the confession is not made in the course of religious discipline.
• When there is waiver.

Newsman’s Privilege

General Rule: Without prejudice to his liability under the civil and criminal laws, any publisher, owner, or duly recognized or accredited journalist, writer, reporter, contributor, opinion writer, editor, columnist, manager, media practitioner involved in the writing, editing, production, and dissemination of news for mass circulation, of any print, broadcast, wire service organization, or electronic mass media, including cable TV and its variants, cannot be compelled to reveal the source of any news item, report or information appearing or being reported or disseminated through said media, which was related in confidence to the abovementioned media practitioners. (R.A. No. 53, as amended by R.A. 11458, Sec. 1)

Exception: Unless the court or the House of Representatives or the Senate or any committee of Congress finds that such revelation is demanded by the security of the State. (R.A. No. 53, as amended by R.A. 11458, Sec. 1)

The State constitutional guarantee of a criminal defendant’s right to confront witnesses prevails over the State statute granting privilege to newspersons regarding their sources of confidential information. (Farber v. Jascalevich, 394 A.2d 330, 1978)

The Shield Law prevails over testimonial privileges of newsmen. They can be required to appear and testify before state or federal grand juries since the ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. The legislative intent in adopting this statute in its present form as seeking to protect the confidential sources of the press as well as information so obtained by reporters and other news media representatives to the greatest extent permitted by the Constitution (Matter of Farber, 394 A.2d 330, 1978)

Judicial Privilege

At the most basic level and subject to the principle of comity, Members of the Court, and Court officials and employees may not be compelled to testify on matters that are part of the internal deliberations and actions of the Court in the exercise of their adjudicatory functions and duties, while testimony on matters external to their adjudicatory functions and duties may be compelled by compulsory processes.

To summarize these rules, the following are privileged documents or communications, and are not subject to disclosure:

• Court actions such as the result of the raffle of cases and the actions taken by the Court on each case included in the agenda of the Court's session on acts done material to pending cases, except where a party litigant requests information on the result of the raffle of the case, pursuant to Rule 7, Section 3 of the Internal Rules of the Supreme Court;
• Court deliberations or the deliberations of the Members in court sessions on cases and matters pending before the Court;
• Court records which are "predecisional" and "deliberative" in nature, in particular, documents and other communications which are part of or related to the deliberative process, i.e., notes, drafts, research papers, internal discussions, internal memoranda, records of internal deliberations, and similar papers.
• Confidential Information secured by justices, judges, court officials and employees in the course of their official functions, mentioned in (2) and (3) above, are privileged even after their term of office.
• Records of cases that are still pending for decision are privileged materials that cannot be disclosed, except only for pleadings, orders and resolutions that have been made available by the court to the general public.
• The principle of comity or inter-departmental courtesy demands that the highest officials of each department be exempt from the compulsory processes of the other departments.
• These privileges belong to the Supreme Court as an institution, not to any justice or judge in his or her individual capacity. Since the Court is higher than the individual justices or judges, no sitting or retired justice or judge, not even the Chief Justice, may claim exception without the consent of the Court. (In re: Production of Court Records, 2012)