normally predominant principle in Massachusetts

2022When an appellate court does recognize a testimonial privilege, a power that is exercised cautiously, the court does so because "excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth." Id. at 167 , quoting Three Juveniles v. Commonwealth, 390 Mass. 357, 359-360 (1983), Page 272 cert. denied, 465 U.S. 1068 (1984).

2012When we recognize testimonial privileges, a power “that we have exercised sparingly,” Babets v. Secretary of Human Servs., 403 Mass. 230, 234 (1988), we do so on the basis that “excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.” Three Juveniles v. Commonwealth, 390 Mass. 357, 359-360 (1983), cert. denied, 465 U.S. 1068 (1984).

2006As a result, privileges “must be strictly construed, and accepted ‘only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.’ ” Three Juveniles v. Commonwealth, 390 Mass. 357, 359-60 (1983), quoting Elkins v. United States, 364 U.S. 206, 234 (1960) (Frankfurter, J., dissenting).

1998As the Supreme Judicial Court declared: Although this court has the power to create privileges, Three Juveniles v. Commonwealth, 390 Mass. 357, 360 , 455 N.E.2d 1203 (1983), it is a power that we have exercised sparingly, and “only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.” Id. at 359-60 , 455 N.E.2d 1203 , quoting Elkins v. United States, 364 U.S. 206, 234 , 80 S.Ct. 1437, 1454 , 4 L.Ed.2d 1669 (1960) (Frankfurter, J., d

2012When we recognize testimonial privileges, a power “that we have exercised sparingly,” Babets v. Secretary of Human Servs., 403 Mass. 230, 234 (1988), we do so on the basis that “excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.” Three Juveniles v. Commonwealth, 390 Mass. 357, 359-360 (1983), cert. denied, 465 U.S. 1068 (1984).

2000Wigmore, Evidence § 2192, at 64 (3d ed. 1940).” Although we have the authority to create privileges, it is “a power that we have exercised sparingly, and ‘only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.’ ” Babets v. Secretary of Human Servs., 403 Mass. 230, 234 (1988), quoting Three Juveniles, supra at 359-360 .

1988Branzburg v. Hayes, 408 U.S. 665, 709 (1972), and to the fundamental principle that “the public ‘has a right to every man’s evidence’ . . . [which] has been preferred, on the whole, to countervailing interests.” Matter of Pappas, supra at 607, quoting 8 J.

1983Except for the privilege against self-incrimination (Branzburg v. Hayes, 408 U.S. 665, 689-690 [1972]; Matter of Roche, 381 Mass. 624 , 634 n.11 [1980]), and a limited “executive privilege” (United States v. Nixon, 418 U.S. 683, 709-710 [1974]), testimonial privileges have generally not been based on a constitutional right.

2002This principle applies whether a court is asked to create a privilege, as in, e.g., Three Juveniles , or is construing a statutory privilege, see Commonwealth v. Pare, 43 Mass.App.Ct. 566, 571 (1997), aff’d., 427 Mass. 427 (1998) (”[t]he (Commonwealth v. Bishop, 416 Mass. 169 (1993)] protocols have not altered the traditional recognition that testimonial privileges, which have the effect of inhibiting full disclosure of the truth, are exceptional and to be strictly construed”). 3 In making my decision, I credit the uncontradicted averments in the affidavit of Lucille Giddings, the Hospital’s P

1988See infra. Although this court has the power to create privileges, Three Juveniles v. Commonwealth, 390 Mass. 357, 360 (1983), it is a power that we have exercised sparingly, and “only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.” Id. at 359-360 , quoting Elkins v. United States, 364 U.S. 206, 234 (1960) (Frankfurter, J., dissenting). “[Pjrivileges are exceptions to the general duty imposed on all people to testify,” Commonw

1988Branzburg v. Hayes, 408 U.S. 665, 709 (1972), and to the fundamental principle that “the public ‘has a right to every man’s evidence’ . . . [which] has been preferred, on the whole, to countervailing interests.” Matter of Pappas, supra at 607, quoting 8 J.

1988See infra. Although this court has the power to create privileges, Three Juveniles v. Commonwealth, 390 Mass. 357, 360 (1983), it is a power that we have exercised sparingly, and “only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.” Id. at 359-360 , quoting Elkins v. United States, 364 U.S. 206, 234 (1960) (Frankfurter, J., dissenting). “[Pjrivileges are exceptions to the general duty imposed on all people to testify,” Commonw

1983Except for the privilege against self-incrimination ( Branzburg v. Hayes, 408 U.S. 665, 689-690 [1972]; Matter of Roche, 381 Mass. 624 , 634 n. 11 [1980]), and a limited "executive privilege" ( United States v. Nixon, 418 U.S. 683, 709-710 [1974]), testimonial privileges have generally not been based on a constitutional right.

1983Except for the privilege against self-incrimination (Branzburg v. Hayes, 408 U.S. 665, 689-690 [1972]; Matter of Roche, 381 Mass. 624 , 634 n.11 [1980]), and a limited “executive privilege” (United States v. Nixon, 418 U.S. 683, 709-710 [1974]), testimonial privileges have generally not been based on a constitutional right.