testimonial privilege in Missouri

1993This waiver, sometimes called the "patient-litigant" waiver, has been recognized in many jurisdictions. [2] Because McNutt preceded State v. Beatty, 770 S.W.2d 387 (Mo.App.1989), by several years, McNutt does not distinguish between the testimonial privilege and the physician's fiduciary duty of confidentiality.

1993This waiver, sometimes called the “patient-litigant” waiver, has been recognized in many jurisdictions. 2 Because McNutt preceded State v. Beatty, 770 S.W.2d 387 (Mo.App.1989), by several years, McNutt does not distinguish between the testimonial privilege and the physician’s fiduciary duty of confidentiality.

2024In Connecticut, “a communication is confidential if, at the time of the communication, the communicator could have had a reasonable expectation of confidentiality.” State v. Mark R., 17 A.3d 1, 8 (Conn. 2011) (quoting State v. Christian, 841 A.2d 1158, 1178 (Conn. 2004)).

2024In Connecticut, “a communication is confidential if, at the time of the communication, the communicator could have had a reasonable expectation of confidentiality.” State v. Mark R., 17 A.3d 1, 8 (Conn. 2011) (quoting State v. Christian, 841 A.2d 1158, 1178 (Conn. 2004)).

2022The State must also show the witness is unavailable because the witness (1) Is dead, (2) Is unable to attend or testify because of sickness or infirmity, (3) Has invoked a testimonial privilege or other refusal to testify not produced by the action 12 Rogerson, 855 N.W.2d at 506-07 ; Atkinson, 987 A.2d at 748 ; Bush, 193 P.3d at 215-16 ; Horn v. Quarterman, 508 F.3d 306, 319-20 (5th Cir. 2007); Yates, 438 F.3d at 1316 .

2008McNutt 8 and the other cases cited by *731 respondent on the issue of waiver of a testimonial privilege do not apply because there is no testimonial privilege to be waived. 580 S.W.2d 753, 758 (Mo. banc 1979).

1993On the one hand, it discusses only the privilege under section 491.060(5); on the other hand, McNutt refers to a waiver that begins when plaintiff’s physical condition is at issue under the pleadings and covers “information from doctors or medical or hospital records bearing on that issue.” McNutt at 601.

1993To allow any such use in this manner would be another form of the prohibited use of “a shield and a dagger at one and the same time.” Id.

1988We do note, however, that a testimonial waiver is not to be lightly inferred, See Smith v. United States, 337 U.S. 137, 150 , 69 S.Ct. 1000, 1007 , 93 L.Ed. 1264, 1274 (1949), and “the courts accordingly indulge every reasonable presumption against finding a testimonial waiver _” Klein v. Harris, 667 F.2d 274, 287 (2d Cir.1981) (citations omitted).

1988We do note, however, that a testimonial waiver is not to be lightly inferred, See Smith v. United States, 337 U.S. 137, 150 , 69 S.Ct. 1000, 1007 , 93 L.Ed. 1264, 1274 (1949), and “the courts accordingly indulge every reasonable presumption against finding a testimonial waiver _” Klein v. Harris, 667 F.2d 274, 287 (2d Cir.1981) (citations omitted).

1988We do note, however, that a testimonial waiver is not to be lightly inferred, See Smith v. United States, 337 U.S. 137, 150 , 69 S.Ct. 1000, 1007 , 93 L.Ed. 1264, 1274 (1949), and “the courts accordingly indulge every reasonable presumption against finding a testimonial waiver _” Klein v. Harris, 667 F.2d 274, 287 (2d Cir.1981) (citations omitted).

1986The testimonial privilege applied in Lowe strikes the proper balance between the exclusion of relevant evidence and the “public policy, exalting the importance of the maintenance of the marriage relation as one of sanctity to be preserved and removed from dissolution by reason of unnecessary discord as far as possible.” Dickinson v. Abernathy Furniture Co., 231 Mo.App. 303 , 96 S.W.2d 1086, 1094 (1936).

1986The testimonial privilege applied in Lowe strikes the proper balance between the exclusion of relevant evidence and the “public policy, exalting the importance of the maintenance of the marriage relation as one of sanctity to be preserved and removed from dissolution by reason of unnecessary discord as far as possible.” Dickinson v. Abernathy Furniture Co., 231 Mo.App. 303 , 96 S.W.2d 1086, 1094 (1936).