Testimonial Privileges Flashcards
GOVERNING LAW
FRE:
The Federal Rules do not provide specific privilege rules. Privileges are governed by common law (that is, created by judiciary).
CA:
In California, privileges are statutory (that is, not created by judiciary).
Privilege law is exempt from Proposition 8.
CONFIDENTIALITY
FED:
Federal courts do not recognize a presumption of confidentiality for all privileges, though it has been held that communications made between spouses (for purposes of the confidential marital communications privilege) are presumed to be privileged.
CA:
Under CEC, a communication made between persons in a privileged relationship is presumed to have been made in confidence.
This is true even if the communication was transmitted electronically.
The proponent has the burden of proof to establish that the communication was not confidential.
EAVESDROPPERS
FED:
The traditional view in some states is that an eavesdropper may testify as to a confidential communication between parties; the modern view is that the privilege holder may stop them from doing so.
CA:
California is among the states that allow the holder of a privilege to stop an eavesdropper from revealing the confidential communication.
ATTORNEY-CLIENT PRIVILEGE
FED:
Communication between attorney and client intended by client to be confidential and made to facilitate rendition of legal services is privileged unless waived by client.
Client holds privilege and privilege applies indefinitely, even after client’s death.
CA
CEC same as federal law, except privilege ends when deceased client’s estate has been distributed and executor has been discharged.
AC Privilege
Corporate Clients
FED:
Corporate clients: If the client is a corporation, privilege applies to communications between lawyer and employee/agent if authorized by corporation to make statement to lawyer on behalf of corporation.
CA:
Under CEC, if client is a corporation, privilege applies to communications between lawyer and employee/agent if:
* Employee/agent is the natural person to speak to lawyer on behalf of corporation in the matter (for example, corporation’s in-house counsel or CEO); or
* Employee/agent did something for which corporation may be held liable, and corporation issued instruction to tell lawyer what happened.
* As applied, there is no significant difference between federal common law and CEC.
AC Privilege
EXCEPTIONS
FED:
Exceptions: Privilege does not apply if:
* Lawyer’s services were sought to further crime or fraud;
* Two or more parties consulted lawyer on matter of common interest and communication is offered by one party against other in subsequent litigation;
* Communication relates to alleged breach of duty between lawyer and client;
* Client puts legal services at issue in the case; or
* Communication is relevant to an issue between parties claiming through the same deceased client.
CA: Same, but also…
* Lawyer reasonably believes disclosure of communication is necessary to prevent crime likely to result in death or substantial bodily harm.
* Additionally, the CEC crime-fraud exception does not apply to legal services rendered in compliance with state and local laws on medicinal or adult-use cannabis.
Such communications between client and lawyer remain confidential, provided the lawyer also advises the client on conflicts with respect to federal law.
PHYSICIAN-PATIENT PRIVILEGE
FED:
No such privilege under federal law.
* If Multistate question assumes privilege, here is majority law: Patient has privilege to prevent disclosure of confidential information conveyed to physician (or dentist or nurse) for the purpose of medical treatment.
Exceptions: The majority rule is that the privilege does not apply if:
* Patient has put physical condition in issue;
* Services were sought to further crime or tort or to escape apprehension;
* Case involves breach of duty arising out of physician-patient relationship;
* The communication is relevant to an issue between parties claiming through same deceased patient;
CA:
California privilege applies only to communication with a licensed physician (or someone the patient reasonably thinks is a licensed physician) for the purpose of diagnosis or treatment.
Also applies to the physician’s staff member (such as a nurse) while such person is serving as the physician’s agent to gather information to pass on to the physician.
Under CEC, in addition to the common law exceptions, the privilege does not apply:
* In criminal cases;
* To information physician is required to report to a public office (for example, gunshot wounds and some communicable diseases); or
* In competency proceedings.
PSYCHOTHERAPIST/ SOCIAL WORKER-CLIENT PRIVILEGE
Confidential information between client/patient and psychotherapist or social worker is privileged.
CEC same as federal law, except California’s privilege covers a wide range of mental health workers (for example, sexual assault counselors, domestic violence counselors, school psychologists, marriage counselors, and mental health nurses, assistants, and interns).
EXCEPTIONS:
Privilege does not apply if:
* Patient has put mental condition in issue;
* Professional services were sought to aid in crime or fraud or to escape apprehension;
* Case involves breach of duty between patient and therapist;
* The communication is relevant to an issue between parties claiming through same deceased patient; or
* Patient has waived the privilege.
Under CEC, in addition to the common law exceptions, privilege does not apply:
* If therapist has reasonable cause to believe patient is danger to themselves or others and disclosure is necessary to end danger;
* If patient is under the age of 16 and therapist has reasonable cause to believe child has been victim of crime and disclosure is in child’s best interests;
* To court-appointed therapists;
* To information physician is required to report to a public office; or
* In competency proceedings.
SPOUSAL TESTIMONIAL PRIVILEGE (SPOUSAL IMMUNITY)
FED:
One spouse cannot be compelled to testify against other spouse in a criminal proceeding.
Only witness spouse can invoke privilege.
Can be claimed only during the marriage, but covers information learned before and during marriage.
CA:
CEC privilege applies to any type of proceeding (both civil and criminal).
Privilege also applies to registered domestic partners.
Under California law, the spouse/ partner of the party may not be compelled to even take the witness stand.
CONFIDENTIAL MARITAL COMMUNICATIONS PRIVILEGE
BOTH:
Applies in all cases and protects confidential spousal communications made during marriage.
Both spouses can claim privilege not to disclose and to prevent other spouse from disclosing confidential marital communications.
Privilege survives the marriage. (comm’ns must be made during marriage, but can invoke after marriage ends).
CEC privilege also applies to communications between registered domestic partners.
CLERGY-PENITENT PRIVILEGE
FED:
Generally recognized in federal courts. A person has a privilege to refuse to disclose, and to prevent others from disclosing, a confidential communication by the person to a member of the clergy in the clergy member’s capacity as a spiritual adviser.
CA:
California privilege protects penitential communications made to a cleric who routinely receives such communications and whose religion requires them to be kept secret. Both penitent and cleric hold privilege.
ACCOUNTANT-CLIENT
PRIVILEGE
NONE, under either.
PROFESSIONAL JOURNALIST PRIVILEGE
No such privilege under Federal Rules.
California law provides that a journalist cannot be held in contempt of court for refusing to reveal a confidential source or any unpublished background material. This contempt shield is not a true privilege because a journalist can be sanctioned in other ways—for example, by discovery sanctions if the journalist is a party to the litigation.
GOVERNMENT PRIVILEGES
FED:
Official information not otherwise open to the public or the identity of an informer may be protected by government privilege.
No privilege exists if informer’s identity is voluntarily disclosed by holder of privilege.
CA:
Under CEC, there are privileges for official information and the identity of an informer.
If a federal or state statute forbids disclosure, the information is privileged.
Absent a statute, it is privileged only if the judge concludes that public interest in keeping it confidential outweighs the need for disclosure.
MISCELLANEOUS CALIFORNIA PRIVILEGES
No such privileges under Federal Rules.
California also recognizes:
* Privileges for confidential communications between a sexual assault, domestic violence, or human trafficking counselor and a victim of such crimes.
* A privilege for trade secrets.
* A privilege for a voter’s secret ballot (unless they voted illegally or have already revealed their vote).
