Privileges

1. Privileges

2. General rules related to privileges • Communications in specific relationships (atty-client, marital, Dr-pt, therapist-pt, counselor-) are presumed privileged – not waived by use of electronic medium to communicate (Evid. Code § 917)

3. General rules related to privileges (cont.) 2. Privileges in Evidence Code apply in all proceedings unless specifically provide for by statute (§910)

4. General rules related to privileges (cont.) 3. There is a statutory prohibition on Judicial creation of new common law privileges (§911). Further, Courts may not imply new exceptions to existing privileges. • Cf. FRE 501 which permits Courts to define new privileges and create new exceptions.

5. General rules related to privileges (cont.) 4. A statutory privilege may not be enforced if nondisclosure of the information deprives the defendant of his Federal Constitutional right to a fair trial. • Lead case: Davis v. Alaska (1974) 415 U.S. 308 (juvenile records) see also Delaney v. Sup Ct (1990) 50 Cal.3d 785, 805 (newsperson shield law) People v. Reber (1986) 177 Cal.App.3d 523, 531 (rt to cross witness on priv psych records)

6. General rules related to privileges (cont.) 5. Privileges can be waived: • A waiver occurs if, without coercion, the holder of the privilege discloses a significant part of the communication. • Merely disclosing the existence of a relationship with a therapist etc does not waive • Merely disclosing that a communication with counsel occurred does not waive • Accidental or inadvertent disclosure during discovery may not be a waiver • Putting an expert on witness list waives privilege.

7. General rules related to privileges (cont.) 6. Placing matter at issue may waive privilege: • Suing for physical injuries waives physician-patient privilege and right to privacy in medical records • Asserting psych defense to crime waives privilege

8. General rules related to privileges (cont.) 7. Failure to assert privilege waives it • If holder had standing to assert it and opportunity to do so • e.g. if fail to object to interrogatories on ground of privilege within 30 days -- waived

9. General rules related to privileges (cont.) • The Federal Rules of Evidence define no privileges • FRE 501 – Directs trial courts to the common law principles on privilege as interpreted in the light of reason and experience; or where state substantive law applies in a civil case, the law of privilege from that state applies

10. Attorney-Client Privilege • In California, the rules related to the attorney-client privilege are codified in Evid. Code §§ 950-962. • The statutory scheme provides the applicable definitions, describes the privilege and identifies the recognized exceptions.

11. Attorney-Client Privilege (cont.) • Additional detailed resource and textual materials, including case law citations, may be found at 2 Witkin California Evidence (4th ed. 2000) §§ 98-136, pp. 350-397, and §§ 151-168, pp. 420-440 and (2007 supp.) §§ 98-136, pp. 61-68, and §§ 151-168, pp. 73-78.

12. Attorney-Client Privilege (cont.) • This privilege allows the holder of the privilege to refuse to disclose confidential communications between attorney and client.

13. Attorney-Client Privilege (cont.) • Further, the holder of the privilege may prevent another person from disclosing such communications.

14. Attorney-Client Privilege (cont.) • The lawyer may claim the privilege except where there is no holder of the privilege in existence or where the holder instructs the lawyer to permit disclosure. (Evid. Code § 954.)

15. Attorney-Client Privilege (cont.) • The lawyer has an affirmative duty to assert and claim the privilege whenever present when the someone seeks to disclose the confidential communication. (Evid. Code § 955.)

16. Attorney-Client Privilege (cont.) • A “lawyer” for the purposes of this privilege is a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation. (Evid. Code § 950.)

17. Attorney-Client Privilege (cont.) • A “client” is a person who consults a lawyer, either directly or through an authorized representative, for the purposes of retaining the lawyer or securing legal services or advice; a client may be an incompetent person who either consults the lawyer directly or through a guardian or conservator. (Evid. Code § 951.)

18. Attorney-Client Privilege (cont.) • The holder of the privilege is normally the client, but depending on the circumstances, could also be the guardian or conservator or the personal representative. (Evid. Code § 953.)

19. Attorney-Client Privilege (cont.) • The protected matter is a “confidential communication” between lawyer and client. (Evid. Code § 952.) • This phrase means information transmitted between the client and the lawyer in the course of that relationship and in confidence.

20. Attorney-Client Privilege (cont.) • The protected matter is a “confidential communication” between lawyer and client. (Evid. Code § 952.) • This information includes legal opinions rendered and advice given by the lawyer.

21. Attorney-Client Privilege (cont.) • The protected matter is a “confidential communication” between lawyer and client. (Evid. Code § 952.) • The client must not knowingly allow third parties to hear or see the communication, with the exception of those whose presence is necessary to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary to accomplish the purpose for which the lawyer was consulted.

22. Attorney-Client Privilege (cont.) • EXCEPTIONS: (Evid. Code §§ 956-962) • No privilege where the services of the lawyer were sought to facilitate a crime or a fraud (Evid. Code § 956) • No privilege where the lawyer reasonably believes disclosure is necessary to prevent a criminal act that will result in death or great bodily injury. (Evid. Code § 956.5.)

23. Attorney-Client Privilege (cont.) • EXCEPTIONS • The privilege does not apply where the issue is whether there has been a breach of duty arising out of the attorney-client relationship. (Evid. Code § 958.) • There is no privilege where the issue is the intention or competence of the client executing an attested document when the lawyer is an attesting witness to the execution of such a document. (Evid. Code § 959.) • Where there are joint clients, there is no privilege where the confidential communications are offered in a subsequent civil action between the clients. (Evid. Code § 962.)

24. Attorney-Client Privilege (cont.) • EXCEPTIONS • There are a group of exceptions that may apply where the client is deceased. • There is no privilege where the issue is between parties all of whom have a claim through a deceased client, whether the claims are testate, intestacy or by inter vivos transaction. (Evid. Code § 957.) • There is no privilege where the issue involves the deceased client’s intent with respect to, or the validity of, a conveyance, will or other writing purporting to affect an interest in property. (Evid. Code §§960-961.)

25. Attorney-Client Privilege (cont.) • FRE 502 • Sets limits on waiver of attorney-client privilege and attorney work product • Does not define the privilege, instead references “applicable law”

26. Attorney Work Product Privilege • In California, the rules related to the attorney work product privilege are codified in Code of Civil Procedure sections 2018.010-2018.080. • The statutory scheme sets forth the public policy to be promoted by the work product rule, describes the materials that fall within the rule and states the exceptions to the rule. • Additional detailed resource and textual materials, including case law citations, may be found at 2 Witkin California Evidence (4th ed. 2000) §§ 137-150, pp. 397-420, and (2007 supp.) §§ 137-150, pp. 69-73.

27. Attorney Work Product Privilege (cont.) • THE PUBLIC POLICY (CCP§ 2018.020) • a) to encourage attorneys to thoroughly prepare and investigate all aspects of their cases (favorable and unfavorable); and • b) to prevent attorneys from taking advantage of an adversary’s efforts and industry

28. Attorney Work Product Privilege (cont.) • The work product rule protects certain writings from discovery and disclosure. • A writing that reflects an attorney’s impressions, conclusions, opinions, theories or legal research is not discoverable under any circumstances. (CCP § 2018.030(a).) • Other work product of an attorney may be discoverable if the court determines that denial of such discovery will unfairly prejudice the party seeking discovery or will result in an injustice. (CCP § 2018.030(b).)

29. Attorney Work Product Privilege (cont.) • The attorney is the holder of this privilege and may assert it even if the client agrees to waive it (not dependent on who pays for the work) • Cf. attorney client privilege, where client has final say on waiving privilege

30. Attorney Work Product Privilege (cont.) • EXCEPTIONS • CCP sections 2018.050 – 2018.080 set forth the exceptions to the Work Product Rule. • The exceptions contain provisions that allow for in camera inspection and protective orders. (CCP §§ 2018.060; and 2018.070(b).)

31. Attorney Work Product Privilege (cont.) • EXCEPTIONS • Where an attorney is suspected of knowingly participating in a crime or fraud, and the legal services were sought to enable or aid in the commission of a crime, the Rule does not protect work product in any official investigation brought by a public prosecutor in the name of the People of the State of California. (CCP § 2018.050.)

32. Attorney Work Product Privilege (cont.) • EXCEPTIONS • Where disciplinary proceedings are pending against an attorney, the State Bar may discover the attorney’s work product if it is relevant to the disciplinary proceedings. (CCP § 2018.070.)

33. Attorney Work Product Privilege (cont.) • EXCEPTIONS • Where the attorney and client litigate over a breach or duty in their relationship, no work product privilege exists if the work product is relevant to the action. (Civ.Pro.§ 2018.080.)

34. MARITAL PRIVILEGES Testimonial privileges • 1. Privilege not to testify against spouse, and • 2. Privilege not to be called as a witness in spouse’s litigation by adverse party

35. MARITAL PRIVILEGES (cont.) Rules for these testimonial privileges: • privilege personal to testifying spouse (party spouse cannot invoke privilege and prevent witness spouse from testifying) • requires valid marriage • no requirement of viable marriage • common law marriage not recognized in CA • does not apply in criminal case where other spouse is victim • does not apply in criminal case if defendant spouse is accused of crime against cohabitant, parent, relative of either spouse whether before or during marriage • may not apply in dissolution setting where former spouse is seeking to adjudicate property, debt, child support or spousal support issues • Exceptions (Mendez § 28.03)

36. MARITAL PRIVILEGES (cont.) 3. Marital communications privilege • both parties hold this privilege and may assert it to prevent other from disclosing • requires valid marriage • applies to confidential communications made during marriage • may be asserted after marriage is over so long as confidential communications occurred during valid marriage • no privilege if communication was made to enable or commit a crime or fraud • Exceptions (Mendez § 27.03)

37. Medical Privileges • MEDICAL PRIVILEGES: • 1. physician-patient privilege Mendez Chap. 24 • 2. psychotherapist-patient privilege Mendez Chap. 23

38. OTHER COUNSELING PRIVILEGES: • 1. Clergy-penitent privilege Mendez Chap 29 • 2. Sexual assault victim-counselor privilege Mendez Chap 25 • 3. Domestic violence victim-counselor privilege Mendez Chap 26 • 4. Human trafficking victim-counselor privilege Mendez Chap 30

39. PRIVILEGE AGAINST SELF INCRIMINATION 1. This privilege bars evidence of communications or testimony of the accused but not real or physical evidence derived from him (Schmerber v CA 384 U.S. 757, 764) • a party, including defendant, may not compel a witness to invoke the privilege IFO the jury • a witness who testifies at PX is entitled to invoke privilege at trial

40. PRIVILEGE AGAINST SELF INCRIMINATION (cont.) 2. This privilege applies in any proceeding – civil or criminal the witness has the right to decline to answer questions which may tend to incriminate him in criminal activity

41. PRIVILEGE AGAINST SELF INCRIMINATION (cont.) 3. Once granted immunity, a witness cannot assert the privilege

42. PRIVILEGE AGAINST SELF INCRIMINATION (cont.) 4. A witness who voluntarily testifies in a civil or criminal proceeding, waives the privilege for the entire scope of relevant cross examination

43. PRIVILEGE AGAINST SELF INCRIMINATION (cont.) 5. This privilege applies not only to testimony, but also to extrajudicial statements • out of court confessions/admissions are admissible only if given voluntarily • prosecution must prove voluntariness by a preponderance of the evidence • compliance with Miranda is required • corpus delicti rule – slight or prima facie evidence of injury, loss, or harm and a criminal agency as the cause independent of the confession – safeguard against false confessions

44. PRIVILEGE NOT TO BE CALLED AS A WITNESS Evid Code § 930 a defendant in a criminal case has a privilege not to be called as a witness and not to testify. • This privilege does not apply in civil cases. • This privilege has not been extended to most civil commitment proceedings (see e.g. MDO and SVP proceedings). • Cases are split in other types of proceedings (e.g. PC§ 1026.5 and proceedings to extend Youth Authority commitments). • Even if defendant testifies at preliminary hearing, he still enjoys privilege not to be called as a witness and to not testify.

45. INFORMANT PRIVILEGE . Evid Code §§ 1041 and 1042 – applies to criminal proceedings only (civil or administrative proceedings would be covered by § 1040 official information privilege) • applies to informants who gave info to a police officer • officer is holder of privilege • sets forth procedures as to how to litigate the issue

46. POLICE OFFICER PERSONNEL RECORDS • 1. Pitchess v. Superior Court (1974) 11 Cal. 3d 531 allows criminal defendant to seek discovery from arresting officer’s personnel records of past misconduct by officer if defendant can show relevance and materiality • 2. statutory scheme Evid Code §§1043-1045 sets forth detailed procedure • requires “good cause” showing of materiality -- propensity for violence -- history of dishonesty -- racial motivation • applies in all types of proceedings • exclusive method to discover police personnel records

47. MISCELLANEOUS PRIVILEGES • Governmental Privilege: Evid. Code § 1040 applies to “official information”: -info obtained in confidence by gov. employee in course of official duties, -and to information that is not open to the public prior to the request for it -Government can claim privilege if a Federal or State law protects it -Or if disclosure is “against public interest”

48. MISCELLANEOUS PRIVILEGES (cont.) 2. Privilege to protect the secrecy of vote • Evid Code § 1050 – a person has the right to protect the tenor of her vote at a public election if the election was by secret ballot and there are no claims of voter misconduct and there has been no prior disclosure of the tenor of the vote

49. MISCELLANEOUS PRIVILEGES (cont.) 3. Trade Secrets • Evid Code §§ 1060-1063 • 1060—so long as no fraud or injustice, owner of trade secret may refuse to disclose it • 1061 – procedure for asserting trade secret priv • 1062 – excludes public from criminal proceeding if evid of privileged trade secret is to be heard • 1063 – procedure for sealing

50. MISCELLANEOUS PRIVILEGES (cont.) 4. Immunity of Newsperson from contempt • Evid Code § 1070 – protection from contempt (incarceration) but not from other sanctions – covers confidential sources and unpublished information (defined in § 1070 (c) )