For reasons of public policy, communications between persons having certain designated relationships are privileged from compelled disclosure in litigation. Such communications are protected because society recognizes that it is desirable to foster certain relationships in order to achieve other beneficial results, such as the promotion of justice, public health and social stability.1

The mere fact that a communication is made in confidence does not of itself create an evidentiary privilege. A claim of privilege usually must be based either upon one of the exemptions from testimonial disclosure recognized by the common law or upon express  provisions of statutes, rules or other authoritative pronouncements.2 To establish a privilege, (i) the communication must originate in a confidence that it will not be disclosed; (ii) the element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties; (iii) the relationship must be one which society desires to encourage; and (iv) the injury that would inure to the relationship by the disclosure of the communication must be greater than the benefit gained thereby for the correct resolution of the litigation.3

Notwithstanding the recognized societal benefits resulting from the creation of privileges, such privileges are inimical to the truth-seeking process and are repugnant to the adversarial system. As such, testimonial privileges are construed narrowly.4 The burden of establishing an evidentiary privilege is on the party asserting it.5

Because of the potential for a jury drawing some adverse inference from  a witness claiming a privilege, proceedings in jury cases to determine the applicability of a privilege must be conducted, to the extent possible, outside the presence and without the knowledge of the jury.5.1 For similar reasons, it is improper for counsel or a judge to comment in the presence of the jury about the fact that a witness asserted a testimonial privilege either at trial or on a prior occasion, and o inference may be drawn from such assertion.5.2  Any party against whom a jury might draw an adverse inference from a claim of privilege is entitled to a jury instruction that no inference may be drawn from the claim of privilege.5.3

1. State ex rel. State Highway Dept. v. 62.96247 Acres of Land, 193 A.2d 799, 807 (Del. Super. 1963).

2. See D.R.E. 501; Morris v. Avallone, 272 A.2d 344, 347 (Del. Super. 1970).

3. Morris v. Avallone, 272 A.2d 344, 347 (Del. Super. 1970).

4. Dworkin v. St. Francis Hospital, Inc., 517 A.2d 302, 307 (Del. Super. 1986), app. denied mem., 521 A.2d 649 (Del. 1987); Connolly v. Labowitz, C.A. No. 83C-AU-l, slip op. at 2, Bifferato, J. (Del. Super. Dec. 17, 1984). This is particularly true in the case of statutory privileges in derogation of the common law. See Shipman v. Division of Social Services, 442 A.2d 101, 105 (Del. Fam. 1981), aff’d sub nom. Betty J. B. v. Division of Social Services, 460 A.2d 528 (Del. 1983).

5. Moyer v. Moyer, 602 A.2d 68, 72 (Del. 1992); Playtex, Inc. v. Columbia Casualty Co., C.A. No. 88C-MR-223, slip op at 3, Del Pesco, J. (Del. Super. Jan. 5, 1989).

5.1.  D.R.E. 512(b).

5.2.  D.R.E. 512(a).

5.3.  D.R.E. 512 (c).

© 2010  David L. Finger