Chapter 10

Common Privileges
    Common Law
         • Attorney/Client *
        • Husband/Wife *

        • Doctor/Patient
        • Psychologist or Psychotherapist/Client
        • Counselor/Client
        • Clergy/Penitent
        • Law Enforcement/Confidential Informant*
        • News Reporter/Source
        • Accountant/Client
        • “State Secrets”   

What can you do when you’re really “privileged”?
    • Refuse to disclose a conversation
    • Prevent another from disclosing a conversation
    • Refuse to be a witness
    • Be anonymous
    • Keep someone else anonymous

What is a “privilege”?
    • Otherwise admissible evidence is kept from the jury because
    • either the Courts (common law) or the Legislature (statute) have determined that
    • Protection of a particular relationship, interest or right is more important than the evidenc

Who decides when you are privileged?
    • Federal Court
        • Source of privileges is “common law” and statute
        • Courts are free to decide and add new privileges by case law
    • California Courts
        • Privileges are limited to those enumerated by statute
        • Only the legislature can add to or change privileges

3 Basic Types of Privileges
    1. Privileges involving disclosure of a confidential communication
    2. Privilege not to be a witness
    3. Privilege to protect the identity of a person who told you something

Each privilege will examined from the standpoint of:
    • Elements of the privilege
    • Who the holder is
    • Duration of the privilege
    • Exceptions to the privilege

Common Privileges
    • Spousal Privilege
    • Attorney-Client Privilege
    • Confidential Informant Privilege

Spousal Privilege
Spousal Privilege consists of 2 distinct privileges
    • Privilege #1- Confidential Communication
    • Privilege #2- Testimonial Privilege

Spousal Privilege
Privilege #1- Confidential Communication

Each spouse has a privilege:
    • not to disclose, and
    • to prevent anyone else from disclosing
        any confidential communication shared during the course of the marriage.

Spousal Privilege
Privilege #1- Confidential Communication

Elements of the privilege
    1. Information shared between spouses
    2. In confidence
    3. During the course of the marriage

Spousal Privilege
Privilege #1- Confidential Communication

1. Information shared between spouses
    • What is a “communication”? Courts are not entirely in agreement.
        • Observations are not privileged, but
        • Communication may include “nonverbal conduct” and is not limited to written or spoken words

Spousal Privilege
Privilege #1- Confidential Communication

2. In confidence
    • Made out of the presence of others and intended to be secret
        • Cal. & Fed: any communication between spouses is presumed confidential and party seeking disclosure has burden of showing otherwise
    • Eavesdroppers
        • Older view: eavesdropper can testify
        • Modern & Cal. view: eavesdropper can only testify is parties were careless. (Fed. view varies)

Spousal Privilege
Privilege #1- Confidential Communication

3. During the course of the marriage
    • Separation or estrangement by “utter shambles” -
        • Fed: no privilege if marriage is on the rocks since nothing left to protect
        • Cal. & majority: communication is protected until the divorce is final

Spousal Privilege
Privilege #1- Confidential Communication

3. During the course of the marriage (cont.)
    • “Common Law” marriages?
        • Fed: If state recognizes C/L marriages, then federal court will recognize privilege.
            • Parties must satisfy all state requirements
            • Spouses asserting privilege have burden of proof
        • Cal: C/L marriages are not recognized in California.

Spousal Privilege
Privilege #1- Confidential Communication

Who is the “holder” of the confidential communication privilege?
    • Privilege belongs to both spouses, so either may prevent the other from disclosing.

Spousal Privilege
Privilege #1- Confidential Communication

What is the duration of the confidential communication privilege?
    • If it was confidential during the marriage, it remains so even after:
        • divorce
        • death

Spousal Privilege
Privilege #1- Confidential Communication

Two Exceptions to the confidential communications privilege
1. Disclosure to third parties
    • Voluntary disclosure to a third party waives the privilege as to the disclosing spouse
    • May even include disclosure to family members
    • Either present at the time of communication or disclosed to third party at a later time

Spousal Privilege
Privilege #1- Confidential Communication

Exceptions to the privilege (cont’d)
2. Criminal proceedings involving the family
    • If one spouse is charged with a crime against the other spouse or a family member, the privilege is waived.
    • If the spousal statements are made in furtherance of a criminal conspiracy between the spouses, the privilege is waived.
    • Does not matter whether both or only one spouse is charged, as long as the uncharged spouse has “substantial criminal involvement”.
    • Does not matter whether the conspiracy is charged as an offense.

Spousal Privilege
Privilege #2- Testimonial Privilege

    • Old common law: Either spouse was disqualified from testifying for or against the other (Hawkins v. U.S.)
        • Small minority still follow.
    • Modern law: Either spouse may but can not be forced to testify against a spouse. (Trammel v. U.S.)
        • Fed & Cal. view & majority rule.

Spousal Privilege
Privilege #2- Testimonial Privilege

Who is the “holder” of the testimonial privilege?
    • Old common law: both spouses “own” the privilege, so either can prevent the other from testifying.
    • Modern law: only the testifying spouse “owns” the privilege, so it is the testifying spouse’s option. The non-testifying spouse can not prevent the other.

Spousal Privilege
Privilege #2- Testimonial Privilege

What is the duration of the testimonial privilege?
    • The privilege applies only during the marriage.
    • An ex-spouse may be forced to testify about events occurring during the marriage
    • The divorce must be final. There is no exception for separation or “utter shambles”.

Spousal Privilege
Privilege #2- Testimonial Privilege

Exceptions to the testimonial privilege
    • Crimes against a family member (same as privilege #2)
    • Civil or juvenile custody proceedings

Attorney-Client Privilege
Neither an attorney or the client may be required to disclose a confidential communication made in the course of consultation.

Attorney-Client Privilege
Elements of the privilege
1. The client now is or was seeking to become a client of the attorney
    • Does not matter if client did not actually end up hiring the attorney
2. The communication was made to a member of the bar or his employee in their official capacity
    • Attorney may be licensed in any state, not just the one where the communication occurs.
    • Attorney need not be licensed at all as long as client reasonably thought they were.

Attorney-Client Privilege
Elements (cont’d)
3. Communication was in a private consultation.
4. The communication was made for the purpose of seeking legitimate legal counsel, advice, or assistance.

Attorney-Client Privilege
Who is the “holder” of the privilege?
    • The privilege is personal to the client and may be asserted only by or on behalf of the client.
    • The privilege is only meant to protect the client, not the attorney.
    • The attorney may invoke the privilege to protect the client, but not waive the privilege, only the client may.

Attorney-Client Privilege
What is the “duration” of the privilege?
    • Once it is privileged, it will be so forever, unless waived by the client.
    • Privilege continues even after the representation is over
    • Privilege continues even after the death of the attorney or client or both

Attorney-Client Privilege
Exceptions to the privilege
    • The privilege does not cover:
        • The facts of the events in question
        • the identity of the client or the amount of the fee paid
        • “last piece of the puzzle” exception if this would be the final link leading to client’s prosecution
        • Advice in furtherance of a crime
        • Statements of the attorney relating to the client’s mental or physical condition
        • Non-legal advice

Attorney-Client Privilege

    • The privilege does not cover: (cont’d)
        • statements made in the presence of third parties
        • Attorney staff, including secretaries, investigators, consulting experts are “necessary” and ok
        • Business partners or corporate officers ok
        • Family members or girl friends?
            • Fed: maybe
            • Cal: maybe not

Confidential Informant Privilege
Types of CI’s
    • Probable cause for a search warrant only
    • Percipient witness or participant in a charged offense
    • Anonymous tipster leading to further investigation

Confidential Informant Privilege
Elements of the CI Privilege
    • A Law enforcement officer
    • May refuse to disclose the identity of a CI
    • If it would jeopardize
    • his/her safety, or
    • the integrity of the investigation.

Confidential Informant Privilege

    • Who is the holder of the privilege?
        • The officer, not the CI.
        • Only the government can “waive” the privilege, not the CI.
   • What is the duration of the privilege?
        • As long as the need exists.

Confidential Informant Privilege
Exceptions to the CI Privilege
1. The CI is a material witness to the charged offense
    • Anonymous witnesses would violate the 6th amendment
    • Example: CI was a participant in the “buy” with which the defendant is charged
2. The CI has exculpatory information, such as
    • Not a reliable source for use in the search warrant
    • Has information that could be used to impeach a prosecution witness

Confidential Informant Privilege
    • So how does the defendant know if the exception applies if they don’t know who the CI is?
        • By requesting an “In Camera” (Chambers) review.
        • Process begins with a written motion for disclosure by the defendant.

Confidential Informant Privilege
    • If the CI was a particpant in or a percipient witness to the charged offense, disclosure may be granted without an “in camera” review.
    • If the CI was “present but not involved” or a source used for a search warrant, an in camera will be scheduled first to determine if the CI has exculpatory information.

Confidential Informant Privilege
In Camera Hearing
    • Only persons present are the judge, court reporter, the officer, and the CI.
    • Judge reviews and questions the officer and CI about the basis for reliability contained in the search warrant.
    • Judge may ask the CI what the source of his/her information about the defendant or the premises searched is.
    • The defense attorney may also submit questions in advance for the judge to ask.

Confidential Informant Privilege
    • The defendant and attorney do not know when or where the in camera is held.
    • At the next court hearing, the judge announces the decision whether or not to disclose the identity of the CI.
    • If disclosure is ordered, the people may opt to dismiss the case instead.

Confidential Informant Privilege
    • If the CI was an “anonymous tipster”, judge may resolve based only on the police reports.
    • If the anonymous information only lead to further investigation and the tipster will never be needed as a witness, disclosure need not be ordered.
    • If an “in camera” is ordered, usually only the officer is needed, not the tipster.