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Privileges And Presumptions: The Federal Rules Of Evidence

1392 Words6 Pages

Privileges, presumptions, and judicial notices seem to be misunderstood when dealing with court issues. There are many interpretations of these terms as they are defined within the Federal Rules of Evidence (FRE). The common issues that come up are in reference to when certain privileges apply; when presumptions can be used in evidence; and how judicial notices apply, what their boundaries are, and what can or cannot be noticed. This paper will look at privileges, presumptions, and judicial notices and define them according to West’s Encyclopedia of American Law and according to the FRE. Arguments for and against each will also be made and it will be shown how they are applied through the FRE. Cases will be used to show reference for a better …show more content…

This was, of course, met with disagreement. Originally, under the English legal system, jurors could only be empanelled if they had some knowledge of the underlying facts, or were a witness to the activities that caused the trial. But, deeply concerned with the search for truth, the system evolved (EPIC Staff, n.d.). The courts started looking for other ways to get witnesses in court to testify in the interest of society. The system introduced a compulsory process which compelled them to testify, however, at the same time a privilege doctrine that protects an individual’s rights to privacy was being created. These doctrines were in constant conflict. Those who favored privacy believed that to compel disclosure of a confidential communication was inherently wrong (EPIC Staff, n.d.). Therefore, compelled testimony would infringe on the right of people to control the distribution of their personal information and keep people from sharing that information with their friends for fear their friends would be forced to reveal it. However, the need to protect private information from compelled disclosure was not always recognized as a legal interest. To determine a need for privacy, courts had to handle things on a case by case basis and weigh the information necessary. This test balanced the validity of the right sought and the need for protection against society's interest in ascertaining the truth. Where ever the privacy interest of a person outweighed society's interest, a privilege was created. The law of privilege recognizes that there are certain types of communications and relationships that are integral to the just operation of society, and the law of privilege is designed to foster those communications and relationships by assuring people that the resulting evidence will not be admissible in court. Privilege presumes that the harm to society

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