privileges generally Flashcards
900 application of definitions
unless this provision or context otherwise requires, the definitions in this chapter govern construction of THIS division, not others
901 proceeding
means any action, hearing, investigation, inquest, or inquiry (whether conducted by court, admistrative agency, hearing officer, arbitrator, legislative body, or any other person authorized by law) in which pursuant to law, testimony can be compelled to be given
902 civil proceeding
means any proceeding except a criminal proceeding
903 criminal proceeding
means a) a criminal action; and b) a proceeding pursuant to article 3 (commencing w/ s3060)
905 presiding officer
means the person authorized to rule on a claim of privilege in the proceeding in which the claim is made
911 refusal to be or have another as a witness, or disclose or produce any matter
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
912 waiver of privilege
(a) Except as otherwise provided in this section, the right of
any person to claim a privilege provided by Section 954
(lawyer-client privilege), 966 (lawyer referral service-client
privilege), 980 (privilege for confidential marital communications), 994 (physician-patient privilege), 1014 (psychotherapist-patient privilege), 1033 (privilege of penitent), 1034 (privilege of clergy member), 1035.8 (sexual assault counselor-victim privilege), or 1037.5 (domestic violence counselor-victim 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. 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.
(b) Where two or more persons are joint holders of a privilege provided by Section 954 (lawyer-client privilege), 966 (lawyer referral service-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.
(c) A disclosure that is itself privileged is not a waiver of any privilege.
(d) A disclosure in confidence of a communication that is
protected by a privilege provided by Section 954 (lawyer-client privilege), 966 (lawyer referral service-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, lawyer referral service, physician, psychotherapist, sexual assault counselor, or domestic violence counselor was consulted, is not a waiver of the privilege.
913 comment on and interferences from, exercise of privilege
(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.
(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.
914 determination of claim of privilege; limitation on punishment for contempt
(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.
(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.
915 disclosure of privileged information or attorney product in ruling on claim of privilege
(a) Subject to subdivision (b), the presiding officer may not
require disclosure of information claimed to be privileged under this division or attorney work product under subdivision (a) of Section 2018.030 of the Code of Civil Procedure 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 the claim other than to require disclosure, the court shall proceed in accordance with subdivision (b).
(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) or under subdivision (b) of Section 2018.030 of the Code of Civil Procedure (attorney work product) 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 any 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 the judge 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.
916 exclusion of privileged information where persons authorized to claim privilege are not present
(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.
(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 no
person authorized to claim the privilege in existence.
917 presumption that certain communications are confidential; privileged character of electronic communications
(a) If a privilege is claimed on the ground that the matter
sought to be disclosed is a communication made in confidence in the course of the lawyer-client, physician-patient, psychotherapist-patient, clergy-penitent, husband-wife, sexual assault counselor-victim, or domestic violence counselor-victim relationship, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden
of proof to establish that the communication was not confidential.
(b) A communication between persons in a relationship listed in subdivision (a) does not lose its privileged character for the sole reason that it is communicated by electronic means or because persons involved in the delivery, facilitation, or storage of electronic communication may have access to the content of the communication.
(c) For purposes of this section, “electronic” has the same
meaning provided in Section 1633.2 of the Civil Code.
918 error in overruling claim of privilege
A party may predicate error on a ruling disallowing a claim of
privilege only if he is the holder of the privilege, except that a
party may predicate error on a ruling disallowing a claim of
privilege by his spouse under Section 970 or 971.
919 admissibility where disclosure erroneously compelled; claim of privilege; coercion
a) Evidence of a statement or other disclosure of privileged
information is inadmissible against a holder of the privilege if:
(1) A person authorized to claim the privilege claimed it but
nevertheless disclosure erroneously was required to be made; or
(2) The presiding officer did not exclude the privileged
information as required by Section 916.
(b) If a person authorized to claim the privilege claimed it,
whether in the same or a prior proceeding, but nevertheless
disclosure erroneously was required by the presiding officer to be made, neither the failure to refuse to disclose nor the failure to seek review of the order of the presiding officer requiring disclosure indicates consent to the disclosure or constitutes a waiver and, under these circumstances, the disclosure is one made under coercion.
920 implied repeal of other statutes related to privileges
nothing in this division shall be construed to repeal by implication any other statute related to privileges
