Transcript Relevance and Materiality

Privileges
General rules related to
privileges
1. Communications in specific relationships
(atty-client, marital, Dr-pt, therapist-pt,
counselor-) are presumed privileged
– not waived by use of electronic medium to
communicate (Evid. Code § 917)
General rules related to
privileges (cont.)
2. Privileges in Evidence Code apply in all
proceedings unless specifically provide for
by statute (§910)
General rules related to
privileges (cont.)
3. There is a statutory prohibition on Judicial
creation of new common law privileges
(§911). Further, Courts may not imply
new exceptions to existing privileges.
• Cf. FRE 501 which permits Courts to
define new privileges and create new
exceptions.
General rules related to
privileges (cont.)
4. A statutory privilege may not be enforced if
nondisclosure of the information deprives the
defendant of his Federal Constitutional right to a
fair trial.
•
Lead case: Davis v. Alaska (1974) 415 U.S.
308 (juvenile records) see also Delaney v. Sup
Ct (1990) 50 Cal.3d 785, 805 (newsperson
shield law) People v. Reber (1986) 177
Cal.App.3d 523, 531 (rt to cross witness on priv
psych records)
General rules related to
privileges (cont.)
5. Privileges can be waived:
• A waiver occurs if, without coercion, the holder of the
privilege discloses a significant part of the
communication.
• Merely disclosing the existence of a relationship with a
therapist etc does not waive
• Merely disclosing that a communication with counsel
occurred does not waive
• Accidental or inadvertent disclosure during discovery
may not be a waiver
• Putting an expert on witness list waives privilege.
General rules related to
privileges (cont.)
6. Placing matter at issue may waive
privilege:
• Suing for physical injuries waives
physician-patient privilege and right to
privacy in medical records
• Asserting psych defense to crime waives
privilege
General rules related to
privileges (cont.)
7. Failure to assert privilege waives it
• If holder had standing to assert it and
opportunity to do so
– e.g. if fail to object to interrogatories on
ground of privilege within 30 days -- waived
General rules related to
privileges (cont.)
• The Federal Rules of Evidence define no
privileges
• FRE 501 – Directs trial courts to the common
law principles on privilege as interpreted in the
light of reason and experience; or where state
substantive law applies in a civil case, the law of
privilege from that state applies
Attorney-Client Privilege
• In California, the rules related to the
attorney-client privilege are codified in
Evid. Code §§ 950-962.
• The statutory scheme provides the
applicable definitions, describes the
privilege and identifies the recognized
exceptions.
Attorney-Client Privilege (cont.)
• Additional detailed resource and textual
materials, including case law citations,
may be found at 2 Witkin California
Evidence (4th ed. 2000) §§ 98-136, pp.
350-397, and §§ 151-168, pp. 420-440
and (2007 supp.) §§ 98-136, pp. 61-68,
and §§ 151-168, pp. 73-78.
Attorney-Client Privilege (cont.)
• This privilege allows the holder of the
privilege to refuse to disclose confidential
communications between attorney and
client.
Attorney-Client Privilege (cont.)
• Further, the holder of the privilege may
prevent another person from disclosing
such communications.
Attorney-Client Privilege (cont.)
• The lawyer may claim the privilege except
where there is no holder of the privilege in
existence or where the holder instructs the
lawyer to permit disclosure. (Evid. Code §
954.)
Attorney-Client Privilege (cont.)
• The lawyer has an affirmative duty to
assert and claim the privilege whenever
present when the someone seeks to
disclose the confidential communication.
(Evid. Code § 955.)
Attorney-Client Privilege (cont.)
• A “lawyer” for the purposes of this
privilege is a person authorized, or
reasonably believed by the client to be
authorized, to practice law in any state or
nation. (Evid. Code § 950.)
Attorney-Client Privilege (cont.)
• A “client” is a person who consults a
lawyer, either directly or through an
authorized representative, for the
purposes of retaining the lawyer or
securing legal services or advice; a client
may be an incompetent person who either
consults the lawyer directly or through a
guardian or conservator. (Evid. Code §
951.)
Attorney-Client Privilege (cont.)
• The holder of the privilege is normally the
client, but depending on the
circumstances, could also be the guardian
or conservator or the personal
representative. (Evid. Code § 953.)
Attorney-Client Privilege (cont.)
• The protected matter is a “confidential
communication” between lawyer and
client. (Evid. Code § 952.)
– This phrase means information transmitted
between the client and the lawyer in the
course of that relationship and in confidence.
Attorney-Client Privilege (cont.)
• The protected matter is a “confidential
communication” between lawyer and
client. (Evid. Code § 952.)
– This information includes legal opinions
rendered and advice given by the lawyer.
Attorney-Client Privilege (cont.)
• The protected matter is a “confidential
communication” between lawyer and client.
(Evid. Code § 952.)
– The client must not knowingly allow third parties to
hear or see the communication, with the exception of
those whose presence is necessary to further the
interest of the client in the consultation or those to
whom disclosure is reasonably necessary to
accomplish the purpose for which the lawyer was
consulted.
Attorney-Client Privilege (cont.)
• EXCEPTIONS: (Evid. Code §§ 956-962)
• No privilege where the services of the
lawyer were sought to facilitate a crime or
a fraud (Evid. Code § 956)
• No privilege where the lawyer reasonably
believes disclosure is necessary to prevent
a criminal act that will result in death or
great bodily injury. (Evid. Code § 956.5.)
Attorney-Client Privilege (cont.)
• EXCEPTIONS
• The privilege does not apply where the issue is whether
•
•
there has been a breach of duty arising out of the
attorney-client relationship. (Evid. Code § 958.)
There is no privilege where the issue is the intention or
competence of the client executing an attested
document when the lawyer is an attesting witness to the
execution of such a document. (Evid. Code § 959.)
Where there are joint clients, there is no privilege where
the confidential communications are offered in a
subsequent civil action between the clients. (Evid. Code
§ 962.)
Attorney-Client Privilege (cont.)
• EXCEPTIONS
• There are a group of exceptions that may apply where
•
•
the client is deceased.
There is no privilege where the issue is between parties
all of whom have a claim through a deceased client,
whether the claims are testate, intestacy or by inter
vivos transaction. (Evid. Code § 957.)
There is no privilege where the issue involves the
deceased client’s intent with respect to, or the validity
of, a conveyance, will or other writing purporting to
affect an interest in property. (Evid. Code §§960-961.)
Attorney-Client Privilege (cont.)
• FRE 502
– Sets limits on waiver of attorney-client
privilege and attorney work product
– Does not define the privilege, instead
references “applicable law”
Attorney Work Product Privilege
• In California, the rules related to the attorney work
•
•
product privilege are codified in Code of Civil Procedure
sections 2018.010-2018.080.
The statutory scheme sets forth the public policy to be
promoted by the work product rule, describes the
materials that fall within the rule and states the
exceptions to the rule.
Additional detailed resource and textual materials,
including case law citations, may be found at 2 Witkin
California Evidence (4th ed. 2000) §§ 137-150, pp. 397420, and (2007 supp.) §§ 137-150, pp. 69-73.
Attorney Work Product Privilege
(cont.)
• THE PUBLIC POLICY (CCP§ 2018.020)
• a) to encourage attorneys to thoroughly
prepare and investigate all aspects of their
cases (favorable and unfavorable); and
• b) to prevent attorneys from taking
advantage of an adversary’s efforts and
industry
Attorney Work Product Privilege
(cont.)
• The work product rule protects certain writings
•
•
from discovery and disclosure.
A writing that reflects an attorney’s impressions,
conclusions, opinions, theories or legal research
is not discoverable under any circumstances.
(CCP § 2018.030(a).)
Other work product of an attorney may be
discoverable if the court determines that denial
of such discovery will unfairly prejudice the party
seeking discovery or will result in an injustice.
(CCP § 2018.030(b).)
Attorney Work Product Privilege
(cont.)
• The attorney is the holder of this privilege
and may assert it even if the client agrees
to waive it (not dependent on who pays
for the work)
• Cf. attorney client privilege, where client
has final say on waiving privilege
Attorney Work Product Privilege
(cont.)
• EXCEPTIONS
• CCP sections 2018.050 – 2018.080 set
forth the exceptions to the Work Product
Rule.
• The exceptions contain provisions that
allow for in camera inspection and
protective orders. (CCP §§ 2018.060; and
2018.070(b).)
Attorney Work Product Privilege
(cont.)
• EXCEPTIONS
• Where an attorney is suspected of knowingly
participating in a crime or fraud, and the legal
services were sought to enable or aid in the
commission of a crime, the Rule does not
protect work product in any official investigation
brought by a public prosecutor in the name of
the People of the State of California. (CCP §
2018.050.)
Attorney Work Product Privilege
(cont.)
• EXCEPTIONS
• Where disciplinary proceedings are
pending against an attorney, the State Bar
may discover the attorney’s work product
if it is relevant to the disciplinary
proceedings. (CCP § 2018.070.)
Attorney Work Product Privilege
(cont.)
• EXCEPTIONS
• Where the attorney and client litigate over
a breach or duty in their relationship, no
work product privilege exists if the work
product is relevant to the action.
(Civ.Pro.§ 2018.080.)
MARITAL PRIVILEGES
Testimonial privileges
• 1. Privilege not to testify against spouse,
and
• 2. Privilege not to be called as a witness in
spouse’s litigation by adverse party
MARITAL PRIVILEGES (cont.)
Rules for these testimonial privileges:
• privilege personal to testifying spouse (party spouse cannot invoke
privilege and prevent witness spouse from testifying)
• requires valid marriage
• no requirement of viable marriage
• common law marriage not recognized in CA
• does not apply in criminal case where other spouse is victim
• does not apply in criminal case if defendant spouse is accused of
crime against cohabitant, parent, relative of either spouse whether
before or during marriage
• may not apply in dissolution setting where former spouse is seeking
to adjudicate property, debt, child support or spousal support issues
• Exceptions (Mendez § 28.03)
MARITAL PRIVILEGES (cont.)
3. Marital communications privilege
• both parties hold this privilege and may assert it to
prevent other from disclosing
• requires valid marriage
• applies to confidential communications made during
marriage
• may be asserted after marriage is over so long as
confidential communications occurred during valid
marriage
• no privilege if communication was made to enable or
commit a crime or fraud
• Exceptions (Mendez § 27.03)
Medical Privileges
• MEDICAL PRIVILEGES:
• 1. physician-patient privilege Mendez
Chap. 24
• 2. psychotherapist-patient privilege
Mendez Chap. 23
OTHER COUNSELING
PRIVILEGES:
• 1. Clergy-penitent privilege Mendez
Chap 29
• 2. Sexual assault victim-counselor
privilege Mendez Chap 25
• 3. Domestic violence victim-counselor
privilege Mendez Chap 26
• 4. Human trafficking victim-counselor
privilege Mendez Chap 30
PRIVILEGE AGAINST SELF
INCRIMINATION
1. This privilege bars evidence of communications
or testimony of the accused but not real or
physical evidence derived from him (Schmerber
v CA 384 U.S. 757, 764)
• a party, including defendant, may not compel a
witness to invoke the privilege IFO the jury
• a witness who testifies at PX is entitled to invoke
privilege at trial
PRIVILEGE AGAINST SELF
INCRIMINATION (cont.)
2. This privilege applies in any proceeding –
civil or criminal
the witness has the right to decline to
answer questions which may tend to
incriminate him in criminal activity
PRIVILEGE AGAINST SELF
INCRIMINATION (cont.)
3. Once granted immunity, a witness cannot
assert the privilege
PRIVILEGE AGAINST SELF
INCRIMINATION (cont.)
4. A witness who voluntarily testifies in a
civil or criminal proceeding, waives the
privilege for the entire scope of relevant
cross examination
PRIVILEGE AGAINST SELF
INCRIMINATION (cont.)
5. This privilege applies not only to testimony, but also to
extrajudicial statements
• out of court confessions/admissions are admissible only
if given voluntarily
• prosecution must prove voluntariness by a
preponderance of the evidence
• compliance with Miranda is required
• corpus delicti rule – slight or prima facie evidence of
injury, loss, or harm and a criminal agency as the cause
independent of the confession – safeguard against false
confessions
PRIVILEGE NOT TO BE CALLED
AS A WITNESS
Evid Code § 930 a defendant in a criminal case has a
privilege not to be called as a witness and not to testify.
• This privilege does not apply in civil cases.
• This privilege has not been extended to most civil
commitment proceedings (see e.g. MDO and SVP
proceedings).
• Cases are split in other types of proceedings (e.g. PC§
1026.5 and proceedings to extend Youth Authority
commitments).
• Even if defendant testifies at preliminary hearing, he still
enjoys privilege not to be called as a witness and to not
testify.
INFORMANT PRIVILEGE
. Evid Code §§ 1041 and 1042 – applies to criminal
proceedings only (civil or administrative
proceedings would be covered by § 1040 official
information privilege)
• applies to informants who gave info to a police
officer
• officer is holder of privilege
• sets forth procedures as to how to litigate the
issue
POLICE OFFICER PERSONNEL
RECORDS
• 1. Pitchess v. Superior Court (1974) 11 Cal. 3d 531 allows criminal
defendant to seek discovery from arresting officer’s personnel
records of past misconduct by officer if defendant can show
relevance and materiality
• 2. statutory scheme Evid Code §§1043-1045 sets forth detailed
procedure
• requires “good cause” showing of materiality
-- propensity for violence
-- history of dishonesty
-- racial motivation
• applies in all types of proceedings
• exclusive method to discover police personnel records
MISCELLANEOUS PRIVILEGES
1. Governmental Privilege: Evid. Code § 1040
applies to “official information”:
-info obtained in confidence by gov. employee
in course of official duties,
-and to information that is not open to the
public prior to the request for it
-Government can claim privilege if a Federal or
State law protects it
-Or if disclosure is “against public interest”
MISCELLANEOUS PRIVILEGES
(cont.)
2. Privilege to protect the secrecy of vote
• Evid Code § 1050 – a person has the right
to protect the tenor of her vote at a public
election if the election was by secret ballot
and there are no claims of voter
misconduct and there has been no prior
disclosure of the tenor of the vote
MISCELLANEOUS PRIVILEGES
(cont.)
3. Trade Secrets
• Evid Code §§ 1060-1063
• 1060—so long as no fraud or injustice, owner of
trade secret may refuse to disclose it
• 1061 – procedure for asserting trade secret priv
• 1062 – excludes public from criminal proceeding
if evid of privileged trade secret is to be heard
• 1063 – procedure for sealing
MISCELLANEOUS PRIVILEGES
(cont.)
4. Immunity of Newsperson from contempt
• Evid Code § 1070 – protection from
contempt (incarceration) but not from
other sanctions – covers confidential
sources and unpublished information
(defined in § 1070 (c) )
MISCELLANEOUS PRIVILEGES
(cont.)
5. Immunity of Sexual Assault Victims and
Domestic Violence Victims from contempt
• Code of Civil Procedure § 1219 (b) – no
imprisonment for contempt for victim of sexual
assault or domestic violence where contempt
consists of refusal to testify about that event
• CCP § 1219 (c) defines sexual assault (narrowly
e.g. 261.5; sexual battery not included) and
domestic violence (broadly – anything within
Fam. Code § 6211)
MISCELLANEOUS PRIVILEGES
(cont.)
6. Juvenile records – Welfare and
Institutions Code § 827 sets forth difficult
process by which such records can be
viewed