Report No. 88
1.13. The cost of privilege.-
The cost of evidentiary privilege is apparent, and it should not be borne with indifference. In the first place, the conferral of a privilege results in the suppression of probative evidence and makes the trier decide factual issues without benefit of the evidence. In this sense, an evidentiary privilege increases the probability that judicial disputes will be decided erroneously. Hence, in short, the question arises if the privilege is worth its price. The conferral of a privilege is grounded upon the assumption that its recognition significantly advances an interest relationship, or principle that society considers a prevailing value. Thus, a balancing is necessary.