CA Testimonial Privileges Flashcards
Testimonial Privileges - Prop 8 Context
Most privilege law is exempt from Prop 8. Even in criminal case, the usual rules of privilege apply. CA privilege law applies in a civil action brought in CA fed court under diversity jurisdiction.
Testimonial Privileges - Confidentiality
In CA, confidentiality = communications between persons in privileged relationship presumed confidential.
Fed courts don’t generally recognize a presumption of confidentiality for all the confidentiality privileges discussed.
Fed law DOES presume that communications between spouses were made in confidence. But beyond that, there is no presumption.
Attorney-Client Privilege
In CA, applies to comms between atty and client or their reps when the purpose of the communication is to facilitate professional legal services.
How long does this privilege live?
1) Under fed law, privilege survives even after client dies.
2) But in CA, privilege ends once the estate of the deceased has been distributed and executor discharged.
Corporate Clients:
1) Fed: the privilege applies to communications from a corp’s employees/agents if they were authorized by the corp to make the communication to the lawyer on behalf of the corp
2) CA: the privilege applies to comms from an employee/agent if 1)) the employee/agent is the natural person to speak to the lawyer on behalf of the corporation in the matter (for example, the corp’s in-house counsel or CEO) or 2)) the employee/agent did something for which the corporation may be held liable and the corp instructed her to tell its lawyer what happened
There is no significant difference between the Fed and CA standards. There’s also no privilege for a “mere witness” who happens to be an employee.
Exceptions under Both Fed and CA:
1) multiple parties consult an atty on a matter of common interest and the communication is offered by one of these parties against another in subsequent litigation
2) the attorney’s services were sought to further a crime or fraud; 3) the communication relates to alleged breach of duty between atty and client; 4) the client puts the legal services at issue in the case; 5) the comms are relevant to an issue between parties claiming through the same deceased client
In CA: on top of all of those, the privilege ALSO does not apply where the lawyer reasonably believes that disclosure of the communication is necessary to prevent a crime that is likely to result in death or substantial bodily harm
Physician-Patient and Psychotherapist-Patient Privilege
Fed: doesn’t recognize physician-patient privilege.
CA: recognizes BOTH.
In CA, the communication must be with a licensed physician or someone the patient thinks is one and for the purpose of diagnosis or treatment. It also applies to communications with the physician’s nurses and representatives
Exceptions to these privileges:
1) when patient puts condition in issue
2) professional services were sought to aid in a crime/fraud or escape capture after
3) where case alleges a breach of duty between patient and psychotherapist/physician (as in a malpractice lawsuit) and
4) the communication is relevant to an issue between parties claiming through the same deceased patient
in CA, additional exceptions apply:
1) Psychotherapist-patient privilege does not apply if:
–> 1) the psychotherapist has reasonable cause to believe that the patient is a danger to themselves or others, and that disclosure is necessary to end the danger;
–> 2) the patient is a child under the age of 16 and the psychotherapist reasonably belives that the child has been the victim of a crime and disclosure is in the best interest of the child or
–> 3) the psychotherapist has been appointed by the court
2) The physician-patient privilege is not applicable in criminal cases
3) Neither privilege is applicable 1) to information that the psychotherapist is required to report to a public office (like gunshot wounds) or 2) in competency proceedings
Marital Privileges
Spousal Testimonial Privilege:
Basic rule under both: permits a witness-spouse to refuse to testify against their spouse.
Fed: applies to criminal cases only
CA: applies in BOTH civil and criminal cases and extends to domestic partners who are unmarried.
Confidential Marital Communications Privilege:
Under both fed and CA, the confidential marital privielge applies in all civil and criminal cases and can be invoked by either spouse.
in CA, it extends to registered domestic partners.
Procedural Questions - Preliminary Questions of Fact
Preliminary Questions of Fact: these are facts upon which admissibility depends. Admissibility depends on demonstrating that one or more certain facts exist. Example: with dying declaration, must show the declarant BELIEVED death was imminent.
Under Fed rules, the judge isn’t bound by the rules of evidence, except those relating to privileges. The judge can consider even inadmissible evidence under fed law in deciding these preliminary facts that condition admissibility of evidence.
In CA, when the judge makes decisions concerning the existence of preliminary facts, the judge is bound by the rules of evidence.
Procedural Questions - Judicial Notice
Under fed and CA law, a fact is appropriate for judicial notice if it’s generally known within the court’s jurisdiction to be true OR it can be accurately and readily determined by looking at a source whose accuracy cannot be questioned. As a general rule, judicial notice of fact is mandatory only if a party requests it. If not requested, courts have discretion to take judicial notice on their own motion.
CA exception: even if judicial notice hasn’t been requested, court must take judicial notice if talking about a fact of general knowledge that’s universally known.
How conclusive is the fact that the judge has noticed? Under fed rules, they’re conclusive in civ cases but not crim cases. In other words, jury must accept a judicially noticed fact as conclusive in fed civ court. If the judge takes judicial notice in a criminal prosecution though, the jury may ignore the judge on that point.
In CA, a judicially noticed fact is gonna be conclusive in both crim and civil cases. Whether civ or crim case, the court will instruct the jury it MUST accept any judicially noticed fact.
