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The familiar expression “every man's evidence” was a well-known phrase as early as the mid-18th century. Both the Duke of Argyll and Lord Chancellor Hardwicke invoked the maxim during the May 25, 1742, debate in the House of Lords concerning a bill to grant immunity to witnesses who would give evidence against Sir Robert Walpole, first Earl of Orford. 12 T. Hansard, Parliamentary History of England 643, 675, 693, 697 (1812). The bill was defeated soundly. Id., at 711. 


The basic proposition is that the law abhors privileges which exclude evidence from the truth finding process of the courts. Thus any privilege which excludes evidence will be narrowly construed and must perform a valuable public purpose.


Because of the key role of the testimony of witnesses in the judicial process, courts have historically been cautious about privileges. Mr. Justice Frankfurter, dissenting in Elkins v. United States, 364 U.S. 206, 234 (1960), said of this: 'Limitations are properly placed upon the operation of this general principle 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 ...

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