Understanding How Defamation Works in the Courtroom
From judge to attorney, to defendant, to court reporter, reputation is a vital necessity for everyone in a courtroom. Professionals spend years building and nurturing their reputations in order to secure good standing in the community and in their careers. However, courtrooms are not exactly Buckingham Palace, and trials are not exactly tea parties—good manners are not expected. As a result, reputations can and often do come into question.
Normally, if a person makes a public statement that is untrue and yet calls another’s character into question, the speaker would be vulnerable to a defamation lawsuit.
No person shall make, publish, disseminate, or circulate, directly or indirectly, or aid, abet or encourage the making, publishing, disseminating or circulating of any oral or written statement or any pamphlet, circular, article or literature that is false, and maliciously critical of, or derogatory to, any person with respect to the business of insurance or with respect to any person in the conduct of his insurance business and that is calculated to injure that person.
– Defamation Code of Virginia §38.2-504
These rules come with one big caveat: they do not apply in cases where the statement is considered privileged…including trials.
The Privileged Statement
In order for a statement to be considered libelous or slanderous, it must have been made without the assumption of privilege. A privileged statement means that the person giving the statement is free or duty-bound to state whatever he pleases in order to provide a full account of a situation.
There are two types of privileged statements: absolute and qualified.
- Absolute. Absolute privilege is awarded when a person’s complete statement is needed in order to understand a situation. With absolute privilege comes absolute assumption that what is said or written cannot incur the risk of punishment or legal action for defamation.
- Qualified. Qualified privilege pertains to subject matter that is of public concern or is of sufficient importance that communicating freely is critical. Newspapers that report on government malfeasance, for example, can claim qualified privilege as their statements must not be hindered by potential defamation risks when reporting stories of public importance.
Whether a statement is privileged or unprivileged is determined by weighing the need to avoid defamation against the importance that the statement is made without restriction.
Courtroom Privileges
Within the courtroom, most statements are covered under absolute privilege.
- Witnesses. In any deposition or trial, a witness giving a statement must be able to speak his mind freely without fear of reprisal. As such, his statement is protected by the absolute privilege rule. For example, if a witness makes a statement that is untrue and malicious, the witness will be immune to a lawsuit for defamation; however, this privilege does not protect him from perjury laws or being held in contempt.
- Judges. Judges are immune from defamation suits in part from absolute privilege as well as judicial immunity, which provides the judge to act diligently and impartially, without fear of being sued when conducting official business.
- Court reporters. Whether directly transcribing courtroom audio and defamatory statements, or mishearing a statement and accidentally recording a defamatory statement, a court reporter is also subject to absolute privilege. Therefore, if a court reporter puts a slanderous remark in the record, she cannot be held responsible for a libel suit, as the statement was not hers nor made with malicious intent. It’s important to note that privilege does not excuse transcribing inaccuracy, and the reporter may be subject to career penalties.
- Attorneys. In order for an attorney to do his job, he needs to paint a picture for the judge and jury, which would be impossible to do if he is forced to paint around defamatory statements. As such, for the most part, if an attorney is preparing or actively involved in litigation on behalf of a client, he will be considered privileged. However, if an attorney knowingly slanders a client or other attorney outside the courtroom or after a trial, he may be subject to a defamation lawsuit.
