Reflections on Alfred Hill’s “Testimonial Privilege and Fair Trial”

I have learned a great deal from “Testimonial Privilege and Fair Trial”-as I always do from Professor Hill’s work. Indeed, he has changed my way of thinking in this area in several important respects. At the same time, I come to rather different conclusions than he regarding each of his three major topics. Part I of this article examines the problem of finding a “remedy” for testimonial privileges that violate a defendant’s right to a fair trial. Part II discusses the problem of determining when a defendant is entitled to assert that the “right” has been violated. Finally, Part III analyzes the problem of distinguishing for purposes of entitlement between prosecution witnesses and government privileges on the one hand, and defense witnesses asserting private privileges on the other hand.