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Subject Area: Law
Topic: The American Revolution and Constitution

§ 21.: Privilege in judicial proceedings.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 21.

Privilege in judicial proceedings.—

The object of all judicial proceedings is the furtherance of justice by preventing or punishing wrongs and providing protection to rights. Although the law does not support, and is not designed to foster, a litigious spirit, yet whenever one, from all the facts within his knowledge, is justified in believing that he has suffered a wrong; in other words, if the facts within his knowledge make out a prima facie cause of action, he has a right to call to his aid the whole power of the law in the protection and enforcement of his rights, and it is to the public interest that a sufficient remedy be provided, and a resort to the courts be encouraged, in order to diminish the temptation, which is always present, to redress one’s own wrongs. Now, if one, in stating his cause of action to the court, will subject himself to liability for every mistake of fact that he might innocently make, appeals to the courts in such cases would thus be discouraged. It is therefore consonant with the soundest public policy, to protect from civil liability all false accusations contained in the affidavits, pleadings, and other papers, which are preliminary to the institution of a suit. But the courts are not to be made the vehicles for slanderous vilification, and hence the false accusations are privileged only when made in good faith, with the intention to prosecute, and under circumstances, which induced the affirmant, as a reasonably prudent man, to believe them to be true. The good faith rebuts the presumption of malice, and the affiant is protected under his privilege, as long as the statement is pertinent to the cause of action, and where he is not actuated by malice in making it. If the statement is not pertinent, or if express malice be proved, the liability attaches.1 All allegations in pleadings, if pertinent, are said to be absolutely privileged,2 except where the libelous words in the pleadings refer to third person, and not to the defendant. Then they are only privileged, when they are pertinent and are pronounced in good faith.1 Not only are false statements privileged, when made in preliminary proceedings, but a false statement has also been held to be privileged, where it has been made to one, after the commission of a crime, with a view to aid him in discovering the offender and bringing him to justice.2 And so, likewise, is a paper privileged, which is signed by several persons, who thereby agree to prosecute others, whose names are given in the paper, and who are therein charged with the commission of a crime.3

In the same manner is the report of the grand jury privileged, notwithstanding, in making it, they have exceeded their jurisdiction.4

When the case is called up in court for trial, the chief aim of the proceeding is the ascertainment of the truth, and all the protections thrown around the dramatis personæ in a judicial proceeding are designed to bring out the truth, and to insure the doing of justice. We therefore find as a familiar rule of law, that no action will lie against a witness for any injurious and false statement he might make on the witness stand. If he is guilty of perjury, he subjects himself to a criminal liability, but in no case does he incur any civil liability.5 But he is only privileged when the statement is pertinent to the cause and voluntarily offered. He is not the judge of what is pertinent, and is protected if his statement is prompted by a question of counsel, which is not forbidden by the court.1

The statements of the judge are privileged for similar reasons,2 and in the same manner are jurors privileged in statements which they make during their deliberations upon the case.3

The most important case of privilege, in connection with judicial proceedings, is that of counsel in the conduct of the cause. In order that the privilege may prove beneficial to the party whom the counsel represents, it must afford him the widest liberty of speech, and complete immunity from liability for any injurious false statement. It is, therefore, held very generally, that the privilege of counsel is as broad as that of the legislator, and that he sustains no civil liability for false, injurious statements, however malicious an intent may have actuated their utterance, provided they are pertinent to the cause on trial.4 Nowhere is the privilege of counsel more clearly elucidated than in the following extract from an opinion of Chief Justice Shaw: “We take the rule to be well settled by the authorities, that words spoken in the course of judicial proceedings, though they are such as impute crime to another, and therefore, if spoken elsewhere, would import malice and be actionable in themselves, are not actionable, if they are applicable and pertinent to the subject of inquiry. The question, therefore, in such cases is, not whether the words spoken are true, but whether they were spoken in the course of judicial proceedings, and whether they are relevant or pertinent to the cause or subject of inquiry. And in determining what is pertinent, much latitude must be allowed to the judgment and discretion of those who are intrusted with the conduct of a cause in court, and a much larger allowance made for the ardent and excited feelings with which a party or counsel, who naturally and almost necessarily identifies himself with his client, may become animated, by constantly regarding one side only of an interesting and animated controversy, in which the dearest rights of such a party may become involved. And if these feelings sometimes manifest themselves in strong invectives, or exaggarated expressions, beyond what the occasion would strictly justify, it is to be recollected that this is said to a judge who hears both sides, in whose mind the exaggerated statement may be at once controlled and met by evidence and argument of a contrary tendency from the other party, and who, from the impartiality of his position, will naturally give to an exaggerated assertion, not warranted by the occasion, no more weight than it deserves. Still, this privilege must be restrained by some limit, and we consider that limit to be this: that a party or counsel shall not avail himself of his situation to gratify private malice by uttering slanderous expressions, either against a party, witness or third person, which have no relation to the cause or subject-matter of the inquiry. Subject to this restriction, it is, on the whole, for the public interest, and best calculated to subserve the purposes of justice, to allow counsel full freedom of speech in conducting the causes and advocating and sustaining the rights of their constituents; and this freedom of discussion ought not to be impaired by numerous and refined distinctions.”1

While the importance of an almost unrestricted liberty of speech to a counsel is recognized and conceded, and likewise the difficulty in restraining abuses of the privilege, still the commonness of the abuse would well make the student of police power pause to consider, if there be no remedy which, while correcting the evil, will not tend to hamper the counsel in the presentation of his client’s case. Personal invective against one’s opponent, the “browbeating” of hostile witnesses, are the ready and accustomed weapons of poor lawyers, while really able lawyers only resort to them when their cause is weak. If the invective was confined to the subject-matter furnished and supported by the testimony before the court, and consisted of exaggerated and abusive presentations of proven facts, while even this would seem reprehensible to us, there are no possible means of preventing it. But it is not within the privilege of counsel to gratify private malice by uttering slanderous expressions, either against a party, a witness or a third person, which have no relation to the subject-matter of the inquiry. Counsel should be confined to what is relevant to the cause, whatever may be his motive for going outside of the record. The courts are too lax in this regard. No legislation is needed; they have the power in their reach to reduce this evil, for it is an evil, to a minimum. The most salutary remedy would be raising the standard of qualification for admission to the bar. The number of poor lawyers, now legion, would be greatly reduced, and consequently the abuse of this privilege lessened.

[1]Kine v. Sewell, 3 Mees. & W. 297; Kidder v. Parkhurst, 3 Allen, 393; Worthington v. Scribner, 108 Mass. 487 (12 Am. Rep. 736); Eames v. Whittaker, 123 Mass. 342; Jarvis v. Hathaway, 3 Johns. 180; Allen v. Crofoot, 2 Wend. 515; Burlingame v. Burlingame, 8 Cow. 141; Garr v. Selden, 4 N. Y. 91; Maurice v. Worden, 54 Md. 233 (39 Am. Rep. 384); Vaussee v. Lee, 1 Hill (S. C.), 197 (26 Am. Dec. 168); Marshall v. Gunter, 6 Rich. 419; Lea v. Sneed, 4 Sneed, 111; Grimes v. Coyle, 6 B. Mon. 301; Bunton v. Worley, 4 Bibb, 38 (7 Am. Dec. 735); Strauss v. Meyer, 48 III. 385; Spaids v. Barrett, 57 III. 289; Wyatt v. Buell, 47 Cal. 624.

[2]Strauss v. Meyer, 48 III. 385; Lea v. White, 4 Sneed, 111; Forbes v. Johnson, 11 B. Mon. 48.

[1]McLaughlin v. Cowley, 127 Mass. 316; Davis v. McNees, 8 Humph. 40; Ruohs v. Packer, 6 Heisk. 395 (19 Am. Rep. 598); Wyatt v. Buell, 47 Cal. 624.

[2]Goslin v. Cannon, 1 Harr. 3.

[3]Klinck v. Colby, 46 N. Y. 427 (7 Am. Rep. 360).

[4]Rector v. Smith, 11 Iowa, 302.

[5]Dunlap v. Glidden, 31 Me. 435; Barnes v. McCrate, 32 Me. 442; Cunningham v. Brown, 18 Vt. 123; Allen v. Crofoot, 2 Wend. 515 (20 Am. Dec. 647); Garr v. Selden, 4 N. Y. 91; Marsh v. Ellsworth, 50 N. Y. 309; Grove v. Brandenburg, 7 Black f. 234; Shock v. McChesney, 4 Yeates, 507 (2 Am. Dec. 415); Terry v. Fellows, 21 La. Ann. 375; Smith v. Howard, 28 Iowa, 51.

[1]See Barnes v. McCrate, 32 Me. 442; Kidder v. Parkhurst, 3 Allen, 393; White v. Carroll, 42 N. Y. 166 (1 Am. Rep. 503); Calkins v. Sumner, 13 Wis. 193.

[2]Cooley on Torts, 214; Townshend on Slander and Libel, § 227.

[3]Dunham v. Powers, 42 Vt. 1; Rector v. Smith, 11 Iowa, 302.

[4]Hastings v. Lusk, 22 Wend. 410 (34 Am. Dec. 380); Warner v. Paine, 2 Sandf. 195; Marsh v. Ellsworth, 50 N. Y. 309; McMillan v. Birch, 1 Binney, 178 (2 Am. Dec. 426); McLaughlin v. Cowley, 127 Mass. 316; Harden v. Comstock, 2 A. K. Marsh. 480 (12 Am. Dec. 168); Spaids v. Barnett, 57 Ill. 289; Jennings v. Paine, 4 Wis. 358.

[1]Hoar v. Wood, 3 Metc. 193. See Bradley v. Heath, 12 Pick. 163; Mower v. Watson, 11 Vt. 536 (34 Am. Dec. 704); Gilbert v. People, 1 Denio, 41; Ring v. Wheeler, 7 Cow. 725; Hastings v. Lusk, 22 Wend. 410 (34 Am. Dec. 380); Stackpole v. Hennen, 6 Mart. (n. s.) 481 (17 Am. Dec. 187); Marshall v. Gunter, 6 Rich. 419; Lester v. Thurmond, 51 Ga. 118; Ruohs v. Backer, 6 Heisk. 395 (19 Am. Rep. 598); Lawson v. Hicks, 38 Ala. 279; Jennings v. Paine, 4 Wis. 358.