Testimonial Privileges (come back to p 29) Flashcards
What is governing law under FRE?
Under CA?
FRE –> federal rules DO NOT provide specific privilege rules. They are based on common law.
CA –>
- privileges are statutory
- privilege law is exempt from prop 8
What rules apply with regards to the attorney-client privilege?
FRE?
In CA?
FRE –>
communications between attorney and client are privileged if:
1. they were intended to be confidential; and
2. made to facilitate legal services
NOTE –> CLIENT holds privilege and privilege survives even client’s death
SEE also –> exceptions
CA distinction –> SAME, except privilege ceases to apply when deceased client’s estate has been fully distributed and personal rep has been discharged
What rules apply with regards to the attorney-client privilege if client is a corporation?
FRE?
In CA?
FRE –> privilege APPLIES if employee/agent is authorized to make statement to attorney on behalf of corporation
CA –> privilege APPLIES if:
- EE/agent is the natural person to speak to atty on behalf of corporation in the matter (Example –> their in-house counsel or CEO); OR
- EE/agent DID something for which corp may be held liable, and corp issued instruction to tell atty what happened.
NOTE –> as applied, this distinction is not significant
What are the exceptions to attorney-client privilege?
Under FRE (4)?
IN CA (+1)?
- services were sought to FURTHER CRIME or FRAUD;
- relates to breach of duty btwn lawyer and client
- client puts services at issue
- Parties were previously jointly represented by lawyer, and now statement is offered by one against the other
IN CA –> Same, PLUS:
1. lawyer REASONABLY BELIEVES disclosure is NECESSARY to prevent crime likely to result in DEATH or SUBSTANTIAL BODILY HARM
What rules apply w regards to physician-patient privilege?
FRE?
Multi-state (majority view)?
CA law?
FRE –> no such privilege
Multi-state –> Majority approach is that patient has privilege to prevent disclosure of:
- CONFIDENTIAL INFO conveyed to physician (or dentist or nurse)
- for the purpose of medical treatment
CA –>
- must be licensed physician (or someone patient reasonably believes is licensed) or staff
- must be for the purpose of diagnosis or treatment
What EXCEPTIONS apply w regards to physician-patient privilege?
Multi-state (majority view)(5)?
CA law (+3)?
MULTI-STATE –>
- services were sought to further CRIME or TORT or to escape apprehension
- Case involves claim of breach of fiduciary duty btwn patient and physician
- Patient has put physical condition at issue
- Patient has waived privilege
- state law does not supply a privilege
ADDITIONAL CA exceptions:
- privilege does NOT apply in criminal cases
- does not apply to info physician is required to report to a public office (EXAMPLE –> gunshot wounds, communicable diseases)
- Im commitment proceedings, competency proceedings, or proceedings to revoke or suspend a license
What rules apply w regards to psychotherapist/social worker-client privilege?
FRE?
CA law?
FRE –> Confidential info between client/patient and psychotherapist or social worker is privileged
CA –> SAME, except covers more people (incl. sexual assault counselors, DV counselors, school psychologists, marriage counselors, and mental health nurses, assistants, and interns)
What EXCEPTIONS apply w regards to psychotherapist/social worker-client privilege?
FRE?
CA law?
PRIVILEGE does NOT apply if:
- services were sought to AID in crime/fraud or to escape apprehension
- Case involved breach of duty
- patient put mental condition at issue
Additional CA exceptions:
- statements to court-appointed therapist
- therapist has REASONABLE CAUSE to believe:
(i) patient is a danger to himself or others AND
(ii) disclosure is necessary to end danger - patient is under 16 and therapist has REASONABLE CAUSE to believe:
(i) child has been VICTIM of CRIME AND
(ii) disclosure is in his BEST INTERESTS
What is the rule w regards to spousal immunity?
FRE ?
CA distinction?
FRE –>
- one spouse cannot be compelled to testify against another spouse in a CRIMINAL proceeding
- ONLY WITNESS spouse can invoke privilege
- can be claimed only DURING marriage, but covers info learned before and during marriage
CA DISTINCTION –>
- spousal immunity applies to both CIVIL and CRIMINAL proceedings
- ALSO applies to DP’s
What is the rule w regards to marital communications privilege?
FRE ?
CA distinction?
FRE –>
- applies in ALL cases (criminal and civil)
- protects CONFIDENTIAL spousal communications made during marriage
- Each spouse can claim privilege to prevent other spouse from disclosing confidential marital communications
- privilege survives marriage
CA –> SAME, but also applies to DP’s
What is the rule w regards to privilege against self-incrimination?
FRE ?
CA?
See 5th amendment
CA –> Same
What is the rule w regards to clergy-penitent privilege?
Federal?
CA?
Federal –> person has a privilege to:
- REFUSE to disclose, AND
- to PREVENT others from disclosing,
- a confidential communication made by person to a member of clergy IN THEIR CAPACITY as spiritual advisor
CA –> protects penitential communications made to cleric:
1. who routinely receives such communications; AND
2. whose religion requires them to be kept secret
NOTE –> both penitent and cleric hold privilege
Is there an accountant-client privilege?
Federal –> NO
CA –> NO
Is there a professional journalist privilege?
Federal –> NO
CA –> “Journalist Contempt Shield” —> journalist CANNOT be held in contempt for refusing to reveal:
(i) a confidential source; OR
(ii) any unpublished background material
NOTE –> not a true privilege bc journalist can be sanctioned in other ways. For example, discovery sanctions if journalist is a party.
What are the rule re: government privileges?
Federal?
CA?
Federal law –> official info not otherwise open to public (or identity of informer) may be protected by gov privilege)
- NO privilege exists if identity of informer is voluntarily disclosed by holder of privilege
CA –>
- if FED or STATE statute forbids disclosure, it’s privileged
- Absent a statute, official info is privileged ONLY IF trial judge concludes that public interest in keeping it confidential OUTWEIGHS need for disclosure
What special privileges does CA have that are not under FRE?
- unqualified privilege for a voter’s secret ballot (unless she voted illegally OR has already revealed her vote)
- qualified privilege for:
(i) trade secrets
(ii) personnel records of police and prison guards
What special presumption exists under CA law (with no FRE counterpart) with regards to communications btwn privileged persons?
In CA –>
- A communication between persons in a privileged relationship is PRESUMED to have been made in confidents
- the evidence proponent has the burden of proof to establish that the communication was not confidential
NOTE –> this is true even if it was made electronically
