Privileges Flashcards
What is the general rule regarding privileges?
When a valid privilege applies, a privilege holder may refuse to disclose, and may prevent another from disclosing, privileged information. As with everything in the law, there are exceptions to the rule.
Name the three main confidential communication privileges.
- Attorney-client privilege
- Marital privilege
- Psychotherapist-patient privilege
What is protected under the attorney-client privilege according to Section 952?
“Information transmitted between a client and his or her lawyer” provided it is not disclosed to a third party.
What is the marital communication privilege under Section 980?
It covers communications was made in confidence between one spouse and the other spouse while they were spouses.
The spouse can refuse to testify, and prevent the other spouse from testifying.
It outlasts the marriage.
What constitutes a “confidential communication between patient and psychotherapist” under Section 1012?
“Information, […] transmitted between a patient and his psychotherapist in the course of that relationship” without a third party present.
What should you do if you believe you’ve encountered privileged material?
Stop what you’re doing, put it aside, seal it in an envelope if you like, and deliver it to the Court. Don’t touch it, don’t listen to it, don’t copy it, don’t scan it, don’t email it, but also don’t destroy it.
What is the crime/fraud exception to privileges?
There is no privilege if the services of the professional (lawyer, spouse, or psychotherapist) were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud.
When is there no attorney-client privilege?
When disclosure “is necessary to prevent a criminal act […] likely to result in the death of, or substantial bodily harm to, an individual.”
(Evid. Code, s 956.5.)
When is there no psychotherapist-patient privilege regarding dangerous patients?
When “the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger.”
Is there a marital privilege in domestic violence cases?
No, under Section 985 there is no privilege for confidential marital communications in domestic violence cases.
What is the spousal testimony privilege under Section 970?
A married person has a privilege not to testify against his/her spouse.
This privilege is not limited to confidential communications but instead gives the witness spouse the privilege, at his/her option, not to testify at all against his/her spouse.
Does the spousal testimony privilege survive divorce?
No, the spousal testimony privilege does not survive beyond marriage. However, the confidential communication marital privilege does survive divorce.
Can a spouse choose to testify against their spouse?
Yes, a married person at his/her option may testify against a spouse and the party spouse cannot prevent the witness spouse from doing so.
What should be verified when dealing with marital and spousal privileges?
Never take the defendant or the spouse’s word that they are married. Common law marriage is not enough, as under California law marriages must be recorded to be legally recognized.
Can an arrestee get married and then claim the spousal privilege?
No. There is an exception to the spousal privilege for relevant knowledge acquired before marriage if the defendant spouse is arrested or charged with a crime before the marriage takes place.
(Evid. Code, § 972, subd. (f)).
What is the privilege against self-incrimination?
All persons, whether or not defendants in a case, have a right not to be compelled to disclose information that may have a tendency to incriminate them.
Can a judge order disclosure of potentially incriminating information to rule on a claim of privilege?
No, a judge cannot order a person to disclose the incriminating information, even in camera, in order to rule on the claim of privilege (Evid. Code, § 915).
What is the burden of proof for claiming the privilege against self-incrimination under Section 404?
“The person claiming the privilege has the burden of showing that
1. The proffered evidence might tend to incriminate him; and
2. the proffered evidence is inadmissible unless it clearly appears to the court that the proffered evidence cannot possibly have a tendency to incriminate the person claiming the privilege.”
Is it presumed that a witness will invoke the privilege against self-incrimination?
No, absent a stipulation it is never presumed that a witness will invoke the privilege against self-incrimination. That witness must be called to the stand and must answer each question unless and until it is clear that any further questioning will be met with a sustained invocation of the privilege.
How can the privilege against self-incrimination be overcome?
The privilege can be overcome by a prosecutorial grant of use and derivative use immunity (Pen. Code, § 1324). It is not required that a witness be given transactional immunity (a free pass) in order to be compelled to provide testimony.
