Div. 8 Privileges Ch. 1-3. Current 2013

Question 2

What 3 privileges does no person have? (CEC 911)

Answer 2

§ 911. Except as otherwise provided by statute:(a) No person has a privilege to refuse to be a witness.(b) No person has a privilege to refuse to disclose any matter or to refuse to produce any writing, object, or other thing.(c) No person has a privilege that another shall not be a witness or shall not disclose any matter or shall not produce any writing, object, or other thing.

Question 3

What are the 8 categories of professional/individual privileges? (CEC 912(a))

Answer 3

§ 912. (a) Except as otherwise provided in this section, the right of any person to claim a privilege provided by Section 954 (lawyer-client privilege), 980 (privilege for confidential marital communications), 994 (physician-patient privilege), 1014 (psychotherapist-patient privilege), 1033 (privilege of penitent), 1034 (privilege of clergyman), 1035.8 (sexual assault counselor-victim privilege), or 1037.5 (domestic violence counselor-victim privilege) is waived ********

Question 4

When is a privilege waived? (CEC 912(a)

Answer 4

§ 912. (a) Except as otherwise provided in this section, the right of any person to claim a privilege ****** is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone. ********

Question 5

When has a privilege holder consented to disclosure?(CEC 912(a)

Answer 5

912(a) ******** Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has the legal standing and opportunity to claim the privilege.

Question 6

When is a privilege waived if held by two or more people? (CEC 912(b))

Answer 6

(b) Where two or more persons are joint holders of a privilege provided by Section 954 (lawyer-client privilege), 994 (physician-patient privilege), 1014 (psychotherapist-patient privilege), 1035.8 (sexual assault counselor-victim privilege), or 1037.5 (domestic violence counselor-victim privilege), a waiver of the right of a particular joint holder of the privilege to claim the privilege does not affect the right of another joint holder to claim the privilege. In the case of the privilege provided by Section 980 (privilege for confidential marital communications), a waiver of the right of one spouse to claim the privilege does not affect the right of the other spouse to claim the privilege.

Question 7

How does the waiver by one spouse of the confidential marital communications privilege affect the right of the other spouse to claim the privilege? (CEC 912(b))

Answer 7

CEC 912(b) ********* In the case of the privilege provided by Section 980 (privilege for confidential marital communications), a waiver of the right of one spouse to claim the privilege does not affect the right of the other spouse to claim the privilege.

Question 8

What is a privileged disclosure? (CEC 912(c))

Answer 8

(c) A disclosure that is itself privileged is not a waiver of any privilege.

Question 9

What is a confidential communication & what are the parameters for non-waiver of a confidential communication? (CEC 912(d))

Answer 9

(d) A disclosure in confidence of a communication that is protected by a privilege provided by Section 954 (lawyer-client privilege), 994 (physician-patient privilege), 1014 (psychotherapist-patient privilege), 1035.8 (sexual assault counselor-victim privilege), or 1037.5 (domestic violence counselor-victim privilege), when disclosure is reasonably necessary for the accomplishment of the purpose for which the lawyer, physician, psychotherapist, sexual assault counselor, or domestic violence counselor was consulted, is not a waiver of the privilege.

Question 10

When a privilege is exercised in hearing or prior occasion, who may comment and what may be inferred? (CEC 913(a))

Answer 10

§ 913. (a) If in the instant proceeding or on a prior occasion a privilege is or was exercised not to testify with respect to any matter, or to refuse to disclose or to prevent another from disclosing any matter, neither the presiding officer nor counsel may comment thereon, no presumption shall arise because of the exercise of the privilege, and the trier of fact may not draw any inference therefrom as to the credibility of the witness or as to any matter at issue in the proceeding.

Question 11

What remedies exist for inferences made regarding exercised privilege? (CEC 913(b))

Answer 11

CEC 913 (b) The court, at the request of a party who may be adversely affected because an unfavorable inference may be drawn by the jury because a privilege has been exercised, shall instruct the jury that no presumption arises because of the exercise of the privilege and that the jury may not draw any inference therefrom as to the credibility of the witness or as to any matter at issue in the proceeding.

Question 12

What is meant by ‘determine a claim of privilege? (CEC 914(a)) and

Answer 12

§ 914. (a) The presiding officer shall determine a claim of privilege in any proceeding in the same manner as a court determines such a claim under Article 2 (commencing with Section 400) of Chapter 4 of Division 3.

Question 13

When is contempt proper in a privilege ruling? And when may a person be ordered to disclose? (CEC 914(b))

Answer 13

CEC 914 (b) No person may be held in contempt for failure to disclose information claimed to be privileged unless he has failed to comply with an order of a court that he disclose such information. This subdivision does not apply to any governmental agency that has constitutional contempt power, nor does it apply to hearings and investigations of the Industrial Accident Commission, nor does it impliedly repeal Chapter 4 (commencing with Section 9400) of Part 1 of Division 2 of Title 2 of the Government Code. If no other statutory procedure is applicable, the procedure prescribed by Section 1991 of the Code of Civil Procedure shall be followed in seeking an order of a court that the person disclose the information claimed to be privileged.

Question 14

What must judge do to rule on a claim of privilege?(CEC 915(a))

Answer 14

§915 (a) Subject to subdivision (b), the presiding officer may not require disclosure of information claimed to be privileged under this division in order to rule on the claim of privilege; provided, however, that in any hearing conducted pursuant to subdivision (c) of Section 1524 of the Penal Code in which a claim of privilege is made and the court determines that there is no other feasible means to rule on the validity of such claim other than to require disclosure, the court shall proceed in accordance with subdivision (b).

Question 15

When is chambers conference appropriate for ruling on claim of privilege?(CEC 915(b))

Answer 15

CEC 915 (b) When a court is ruling on a claim of privilege under Article 9 (commencing with Section 1040) of Chapter 4 (official information and identity of informer) or under Section 1060 (trade secret) and is unable to do so without requiring disclosure of the information claimed to be privileged, the court may require the person from whom disclosure is sought or the person authorized to claim the privilege, or both, to disclose the information in chambers out of the presence and hearing of all persons except the person authorized to claim the privilege and such other persons as the person authorized to claim the privilege is willing to have present. If the judge determines that the information is privileged, neither he nor any other person may ever disclose, without the consent of a person authorized to permit disclosure, what was disclosed in the course of the proceedings in chambers.

Question 16

When should court exclude evidence subject to a claim of privilege?(CEC 916(a))

Answer 16

916. (a) The presiding officer, on his own motion or on the motion of any party, shall exclude information that is subject to a claim of privilege under this division if: (1) The person from whom the information is sought is not a person authorized to claim the privilege; and (2) There is no party to the proceeding who is a person authorized to claim the privilege.

Question 17

When should court Include evidence subject to a claim of privilege?(CEC 916(b))

Answer 17

CEC 916 (b) The presiding officer may not exclude information under this section if: (1) He is otherwise instructed by a person authorized to permit disclosure; or (2) The proponent of the evidence establishes that there is noperson authorized to claim the privilege in existence.

Question 18

Who has burden to establish when an otherwise privileged communication is not confidential?(CEC 917(a))

Answer 18

917. (a) If a privilege is claimed on the ground that the mattersought to be disclosed is a communication made in confidence in thecourse of the lawyer-client, physician-patient,psychotherapist-patient, clergy-penitent, husband-wife, sexualassault counselor-victim, or domestic violence counselor-victimrelationship, the communication is presumed to have been made inconfidence and the opponent of the claim of privilege has the burdenof proof to establish that the communication was not confidential.

Question 19

What is the status of an ‘electronic’ communication between persons in a privileged relationship?(CEC 917(b)(c))

Answer 19

(b) A communication between persons in a relationship listed insubdivision (a) does not lose its privileged character for the solereason that it is communicated by electronic means or because personsinvolved in the delivery, facilitation, or storage of electroniccommunication may have access to the content of the communication. (c) For purposes of this section, “electronic” has the samemeaning provided in Section 1633.2 of the Civil Code.

Question 20

Who has standing to assert that an error was made in disallowing a claim of privilege?(CEC 918)

Answer 20

918. A party may predicate* error on a ruling disallowing a claim ofprivilege only if he is the holder of the privilege, except that aparty may predicate error on a ruling disallowing a claim ofprivilege by his spouse under Section 970 or 971.[*affirm - assert - allege - aver - maintain - declare]

Question 21

When is a disclosure of privileged material inadmissible against the holder of the privilege?(CEC 919(a))

Answer 21

919. (a) Evidence of a statement or other disclosure of privilegedinformation is inadmissible against a holder of the privilege if: (1) A person authorized to claim the privilege claimed it butnevertheless disclosure erroneously was required to be made; or (2) The presiding officer did not exclude the privilegedinformation as required by Section 916.

Question 22

When is waiver or consent to disclosure to be found after inadvertent or erroneous disclosure of privileged material?(CEC 919(b))

Answer 22

CEC 919 (b) If a person authorized to claim the privilege claimed it,whether in the same or a prior proceeding, but neverthelessdisclosure erroneously was required by the presiding officer to bemade, neither the failure to refuse to disclose nor the failure toseek review of the order of the presiding officer requiringdisclosure indicates consent to the disclosure or constitutes awaiver and, under these circumstances, the disclosure is one madeunder coercion.

Question 23

In inferred repeal of privilege statutes?(CEC 920)

Answer 23

920. Nothing in this division shall be construed to repeal byimplication any other statute relating to privileges.