Evidentiary Privileges in California

Evidentiary Privileges in California

Posted By Hanson, Gorian, Bradford & Hanich || 26-Aug-2019

The Privilege Against Self-Incrimination

Under the Fifth Amendment to the United States constitution, an individual may not be compelled to be a witness against themselves in a criminal proceeding. California has a corresponding provision to its state constitution that recognizes a person’s privilege against self-incrimination.

Article 1, Section 15 provides that “Persons may not twice be put in jeopardy for the same offense, be compelled in a criminal cause to be a witness against themselves, or be deprived of life, liberty, or property without due process of law.”

To promote the protection of these constitutional rights, the California legislature explicitly recognized two evidentiary privileges in its evidence code involving a criminal defendant’s testimonial rights:

  • California Evidence Code § 930: A defendant’s privilege against being called as a witness and not to testify.
  • California Evidence Code § 940: Privilege Against Self-Incrimination

Although a criminal defendant may not be compelled to take the stand and offer testimony at their trial, they may waive the privilege and do so anyway.

Attorney Client Privilege

Sections 950 through 962 of the California Evidence Code relate to attorney-client privilege. These provisions protect confidential communications made between an attorney and their client. Section 952 defines “confidential communication between client and lawyer” to mean “information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation of those to whom disclose is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.”

Simply put, communications between a person and their attorney may not be admitted into evidence if such communications if made in confidence between an attorney and their client and any professional associates who need to know about such communications. This privilege is necessary to protect the information passed between a lawyer and their client. Without these protections against the use of communications between these parties as evidence, clients would not be forthcoming about vital information that is necessary for their attorney to provide comprehensive legal representation and protection.

Spousal Privileges

Sections 970 through 987 of the California Evidence Code govern privileges against the use of evidence that arise from the marriage of two people.

There are two kinds of spousal privileges under the evidence code:

  • The privilege not to testify against one’s spouse (Evidence Code § 970)
  • The privilege protecting confidential communications between spouses (Evidence Code § 980)

Under Section 970, a person does not have to take the stand and testify against their spouse at trial. This privilege exists as long as the marriage exists. Section 980 specifically protects private conversations and other communications between spouses while married. This privilege exists beyond marriage and allows one to prevent a former spouse from divulging information that one spouse told the other in confidence.

There are several exceptions to the privilege not to testify against a spouse, including:

  • Legal actions between spouses
  • Proceedings for committing a spouse due to their mental or physical condition
  • Proceeding regarding a spouse’s competence
  • Juvenile proceedings regarding child support
  • Criminal cases where a spouse or their child is the victim
  • Criminal proceedings where a third-party was harmed while one spouse committed a crime against the other spouse
  • Criminal cases for bigamy
  • Criminal proceedings for nonpayment of spousal or child support

Similar to the attorney-client privilege, theses “spousal privileges” were put in place to promote and foster open communication between spouses as a way to protect the marital relationship. Communication is a key part of a successful marriage. However, if a person had to worry about whether their spouse could be forced to testify about what they told them, they would be deterred from openly communicating with their spouse, endangering their marriage.

Doctor-Patient Privilege

California Evidence Code §§ 990-1007 regulate the use of confidential information between doctors and their patients as evidence in court. The Evidence Code defines “confidential communication between patient and physician” as “information, including information obtained by an examination of the patient, transmitted between a patient and his physician in the course of that relationship and in confidence by a means which, so far as the patient is aware, discloses the information to no third persons other than those who are present to further the interest of the patient in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the physician is consulted, and includes a diagnosis made and the advice given by the physician in the course of that relationship.”

Like the attorney-client and spousal privileges, the doctor-patient privilege was recognized to foster honesty and openness between doctors and their patients. Without such honesty and openness, a patient would be wary about divulging information that may be necessary for their medical treatment if they knew a court could compel their doctor to disclose such information. However, the privilege doesn’t provide absolute protection for communications between doctor and patient.

Section 996 through 1007 list certain exceptions to the doctor-patient privilege, including:

  • Lawsuits where the patient is a litigant
  • If the doctor’s services were sought as part of a scheme to commit a crime or tort
  • Criminal proceedings
  • Civil proceedings for damages
  • Claims made through a deceased patient
  • Medical malpractice cases between the doctor and the patient
  • A deceased patient’s wishes regarding their estate according to their will
  • The validity of provisions in a deceased patient’s will or other similar document
  • Commitment proceedings
  • Proceedings concerning the patient’s competence
  • Communications a doctor or patient is required to report by law
  • Proceedings regarding the revocation or suspension of a license

Clergy-Penitent Privilege

California Evidence Code §§ 1030-1034 protecting confidential communications made between clergy—such as priests and other similar religious authorities—and parishioners in the course of standard religious practice or discipline. For example, a priest cannot testify as to the confessions a church member made as part of the Catholic sacrament of confession.

The parishioner—also known as penitent—can refuse to testify about confidential communications made to the clergy, as well as bar the clergy from testifying against them. Furthermore, the clergy may refuse to testify against the penitent on their own accord.

Quality Legal Representation from Hanson, Gorian, Bradford & Hanich

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