/WAY-ver by vol-un-TAIR-ee dis-KLOH-zhur/·principle
Also known as:waivers by voluntary disclosure · voluntary disclosure waiver · implied waiver · privilege waiver
Written by attorneys · grounded in primary & secondary sources — see below
A principle under which a person upon whom a privilege against disclosure is conferred waives the privilege by voluntarily disclosing or consenting to disclosure of any significant part of the privileged matter or communication.
Sources & Authorities
How it applies
Common Examples
2
Suspect Answers After Warnings
Federal agents read Leo full Miranda warnings during an insider-trading investigation. Leo nodded to show understanding but remained mostly silent for nearly two hours, shrugging or shaking his head at times without requesting counsel or stating he wished to stop. When an agent asked whether Leo had tipped a friend about the merger, Leo replied yes. Because Leo voluntarily disclosed the information after warnings, the disclosure operated as a waiver by voluntary disclosure, rendering the statement admissible.
Spouse Discloses Communications
During divorce proceedings, wife voluntarily revealed to third parties the substance of several private conversations she had with husband while they were married. Husband later sought to exclude those conversations under the marital communications privilege. Because wife had disclosed a significant part of the privileged communications, the privilege was waived by voluntary disclosure and the conversations became admissible.
Put it into practice
Test Yourself
10
Practice Questions5
· 1 primary source
Select any source to read its text and confirm it supports the definition.
Cases
Casebooks
State v. Serrano210 P.3d 892 (Or. 2009)
Common questions
Frequently Asked
4
What conduct constitutes voluntary disclosure sufficient to waive a privilege?+
A person waives the privilege by voluntarily disclosing or consenting to disclosure of any significant part of the privileged matter or communication. Silence alone or ambiguous conduct does not qualify as an invocation that prevents later waiver.
Supporting sources
Does answering one question after Miranda warnings waive the right to remain silent?+
After valid warnings, a suspect who never clearly and unambiguously invokes the right to remain silent may waive that right by voluntarily disclosing the information in an answer. The disclosure itself demonstrates a knowing and voluntary choice to speak.
Supporting sources
Can prolonged silence during interrogation invoke the right to remain silent?+
No. Mere silence, even for an extended period accompanied by physical signs of discomfort, does not constitute a clear and unambiguous invocation. Without such an invocation, a later voluntary disclosure after warnings creates a waiver by voluntary disclosure.
Supporting sources
How does waiver by voluntary disclosure apply to marital privileges?+
Both the marital communications privilege and the testimonial privilege may be waived under the rule governing voluntary disclosure. When a spouse discloses a significant part of a privileged communication, the privilege is lost for that communication.
Supporting sources
Business Associations Corporations and LlcsManagement and control · DirectorsUBEIntermediate