Copyright © 2010

Thomson Reuters

Chapter 5

PRIVILEGES

Table of Sections

Sec.

5.00 Introduction.

5.01 General Rule of Privilege.

5.02 Attorney–Client Privilege.

5.03 The Privilege Not to Testify Against a Spouse.

5.04 Privilege for Confidential Marital Communications.

5.05 The Physician–Patient Privilege.

5.06 The Psychotherapist–Patient Privilege.

5.07 Clergy–Penitent Privilege.

5.08 The Sexual Assault Counselor–Victim Privilege.

5.09 The Domestic Violence Counselor–Victim Privilege.

5.10 Human Trafficking Caseworker–Victim Privilege.

5.11 Privilege for Official Information.

5.12 Privilege for the Identity of Informer.

5.13 Secrecy of Vote.

5.14 Trade Secrets.

5.15 Applicability of Privileges.

5.16 Waiver of Privileges.

5.17 Commenting on Privileges.

5.18 Erroneously Compelled Disclosures.

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§ 5.00 Introduction

Comparative Note. Congress did not enact the article on privileges. Instead, Congress substituted a provision—Rule 501—that leaves the development and determination of federal privilege law to the federal Common Law. In 2008, however, Federal Rule of Evidence 502, relating to the attorney-client privilege and the work product doctrine, was enacted. Rule 502 is considered in § 5.02 which discusses the attorney-client privilege.

The California Evidence Code, by contrast, has five chapters devoted to privileges. Only the major privileges are covered in this chapter, and the commentary is limited to the California privileges.

When determining federal privilege law, federal courts often find it useful to consult the privileges as submitted to Congress. Accordingly, this chapter first sets out the Evidence Code privileges and then the corresponding proposed federal privileges which Congress declined to enact.

§ 5.01 General Rule of Privilege

FEDERAL RULES OF EVIDENCE

Rule 501. Privilege in General

The common law--as interpreted by United States courts in the light of reason and experience--governs a claim of privilege unless any of the following provides otherwise:

• the United States Constitution;

• a federal statute; or

• rules prescribed by the Supreme Court.

But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.

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CALIFORNIA EVIDENCE CODE

§ 901. Proceeding

"Proceeding" means any action, hearing, investigation, inquest, or inquiry (whether conducted by a court, administrative agency, hearing officer, arbitrator, legislative body, or any other person authorized by law) in which, pursuant to law, testimony can be compelled to be given.

§ 910. Applicability of division

Except as otherwise provided by statute, the provisions of this division apply in all proceedings. The provisions of any statute making rules of evidence inapplicable in particular proceedings, or limiting the applicability of rules of evidence in particular proceedings, do not make this division inapplicable to such proceedings.

§ 911. Refusal to be or have another as witness, or disclose or produce any matter

Except as otherwise provided by statute:

(a) No person has a privilege to refuse to be a witness.

(b) No person has a privilege to refuse to disclose any matter or to refuse to produce any writing, object, or other thing.

(c) No person has a privilege that another shall not be a witness or shall not disclose any matter or shall not produce any writing, object, or other thing.

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FEDERAL RULES OF EVIDENCE

Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver

The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection.

(a) Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a Waiver. When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a federal or state proceeding only if:

(1) the waiver is intentional;

(2) the disclosed and undisclosed communications or information concern the same subject matter; and

(3) they ought in fairness to be considered together.

(b) Inadvertent Disclosure. When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if:

(1) the disclosure is inadvertent;

(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and

(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5) (B).

(c) Disclosure Made in a State Proceeding. When the disclosure is made in a state proceeding and is not the subject of a state-court order concerning waiver, the disclosure does not operate as a waiver in a federal proceeding if the disclosure:

(1) would not be a waiver under this rule if it had been made in a federal proceeding; or

(2) is not a waiver under the law of the state where the disclosure occurred.

(d) Controlling Effect of a Court Order. A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court--in which event the disclosure is also not a waiver in any other federal or state proceeding.

(e) Controlling Effect of a Party Agreement. An agreement on the effect of disclosure in a federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.

(f) Controlling Effect of This Rule. Notwithstanding Rules 101 and 1101, this rule applies to state proceedings and to federal court-annexed and federal court-mandated arbitration proceedings, in the circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even if state law provides the rule of decision.

(g) Definitions. In this rule:

(1) "attorney-client privilege" means the protection that applicable law provides for confidential attorney-client communications; and

(2) "work-product protection" means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial.

RULE 502. PRIVILEGES RECOGNIZED ONLY AS PROVIDED <FONT>[NOT ENACTED]</FONT>

Except as otherwise required by the Constitution of the United States or provided by Act of Congress, and except as provided in these rules or in other rules adopted by the Supreme Court, no person has a privilege to:

(1) Refuse to be a witness; or

(2) Refuse to disclose any matter; or

(3) Refuse to produce any object or writing; or

(4) Prevent another from being a witness or disclosing any matter of producing any object or writing.

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Comparative Note. Under Rule 501, federal judges must determine federal privilege law from the federal Common Law in federal question cases and proceedings. In cases and proceedings in which state law governs under Erie,1 federal judges must determine the existence and application of privileges in accordance with state law.

California privilege law applies in all proceedings in which testimony can be compelled (§§ 901, 910). Section 911 postulates the general rule that no privileges are recognized in the absence of a statute. This section thus eliminates a California judge's Common Law powers to create privileges.

§ 5.02 Attorney–Client Privilege

CALIFORNIA EVIDENCE CODE

§ 950. Lawyer

As used in this article, "lawyer" means a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation.

§ 951. Client

As used in this article, "client" means a person who, directly or through an authorized representative, consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity, and includes an incompetent (a) who himself so consults the lawyer or (b) whose guardian or conservator so consults the lawyer in behalf of the incompetent.

§ 952. Confidential communication between client and lawyer

As used in this article, "confidential communication between client and lawyer" means 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 or those to whom disclosure 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.

§ 953. Holder of the privilege

As used in this article, "holder of the privilege" means:

(a) The client, if the client has no guardian or conservator.

(b) A guardian or conservator of the client, if the client has a guardian or conservator.

(c) The personal representative of the client if the client is dead, including a personal representative appointed pursuant to Section 12252 of the Probate Code.

(d) A successor, assign, trustee in dissolution, or any similar representative of a firm, association, organization, partnership, business trust, corporation, or public entity that is no longer in existence.

§ 954. Lawyer-client privilege

Subject to Section 912 and except as otherwise provided in this article, the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by:

(a) The holder of the privilege;

(b) A person who is authorized to claim the privilege by the holder of the privilege; or

(c) The person who was the lawyer at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if he is otherwise instructed by a person authorized to permit disclosure.

The relationship of attorney and client shall exist between a law corporation as defined in Article 10 (commencing with Section 6160) of Chapter 4 of Division 3 of the Business and Professions Code and the persons to whom it renders professional services, as well as between such persons and members of the State Bar employed by such corporation to render services to such persons. The word "persons" as used in this subdivision includes partnerships, corporations, limited liability companies, associations and other groups and entities.

§ 955. When lawyer required to claim privilege

The lawyer who received or made a communication subject to the privilege under this article shall claim the privilege whenever he is present when the communication is sought to be disclosed and is authorized to claim the privilege under subdivision (c) of Section 954.

§ 956. Exception: Crime or fraud

There is no privilege under this article if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud.

§ 956.5. Reasonable belief that disclosure of confidential communication relating to representation of client is necessary to prevent criminal act that lawyer reasonably believes likely to result in death of, or substantial bodily harm to, an individual; exception to privilege

There is no privilege under this article if the lawyer reasonably believes that disclosure of any confidential communication relating to representation of a client is necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in the death of, or substantial bodily harm to, an individual.

§ 957. Exception: Parties claiming through deceased client

There is no privilege under this article as to a communication relevant to an issue between parties all of whom claim through a deceased client, regardless of whether the claims are by testate or intestate succession, nonprobate transfer, or inter vivos transaction.

§ 958. Exception: Breach of duty arising out of lawyer-client relationship

There is no privilege under this article as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship.

§ 959. Exception: Lawyer as attesting witness

There is no privilege under this article as to a communication relevant to an issue concerning the intention or competence of a client executing an attested document of which the lawyer is an attesting witness, or concerning the execution or attestation of such a document.

§ 960. Exception: Intention of deceased client concerning writing affecting property interest

There is no privilege under this article as to a communication relevant to an issue concerning the intention of a client, now deceased, with respect to a deed of conveyance, will, or other writing, executed by the client, purporting to affect an interest in property.

§ 961. Exception: Validity of writing affecting property interest

There is no privilege under this article as to a communication relevant to an issue concerning the validity of a deed of conveyance, will, or other writing, executed by a client, now deceased, purporting to affect an interest in property.

§ 962. Exception: Joint clients

Where two or more clients have retained or consulted a lawyer upon a matter of common interest, none of them, nor the successor in interest of any of them, may claim a privilege under this article as to a communication made in the course of that relationship when such communication is offered in a civil proceeding between one of such clients (or his successor in interest) and another of such clients (or his successor in interest).

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FEDERAL RULES OF EVIDENCE

RULE 503. LAWYER–CLIENT PRIVILEGE <FONT>[NOT ENACTED]</FONT>

(a) Definitions. As used in this rule:

(1) A "client" is a person, public officer, or corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from him.

(2) A "lawyer" is a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation.

(3) A "representative of the lawyer" is one employed to assist the lawyer in the rendition of professional legal services.

(4) A communication is "confidential" if not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.

(b) General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client, (1) between himself or his representative and his lawyer or his lawyer's representative, or (2) between his lawyer and the lawyer's representative, or (3) by him or his lawyer to a lawyer representing another in a matter of common interest, or (4) between representatives of the client or between the client and a representative of the client, or (5) between lawyers representing the client.

(c) Who may claim the privilege. The privilege may be claimed by the client, his guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The person who was the lawyer at the time of the communication may claim the privilege but only on behalf of the client. His authority to do so is presumed in the absence of evidence to the contrary.

(d) Exceptions. There is no privilege under this rule:

(1) Furtherance of crime or fraud. If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud; or

(2) Claimants through same deceased client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction; or

(3) Breach of duty by lawyer or client. As to a communication relevant to an issue of breach of duty by the lawyer to his client or by the client to his lawyer; or

(4) Document attested by lawyer. As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness; or

(5) Joint clients. As to a communication relevant to a matter of common interest between two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of the clients.

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Comparative Note.

California. The attorney-client privilege is designed to promote effective representation by encouraging clients to disclose to their lawyers all pertinent information, favorable as well as unfavorable, without fear that others may be informed. The Code achieves this goal by providing clients and other holders of the privilege with the right to refuse to disclose and to prevent another from disclosing a confidential communication between the client and the attorney.

Not all matters the client discloses to a lawyer in confidence are protected. For example, if the client consults the lawyer to enable the client to commit a crime or a fraud, the client's communications are not protected from disclosure. The privilege, moreover, does not immunize the subject matter of the communication conveyed to the lawyer. Following an accident, for example, a client might tell his lawyer, "I ran the light." Though the client's statement to his lawyer is protected from disclosure by the attorney-client privilege, the privilege will not preclude the adverse party from calling the client as an adverse witness and asking him whether he ran the light. It is the communication and not the subject matter that is protected.

The same principle applies to tangible items which the client furnishes the lawyer. If the client gives the lawyer a written report in which the mechanic warns the client that the brakes might fail unless replaced, the adverse party may not only compel production of the report but may offer it in evidence to the extent that it is admissible under the rules. Tangible items, including documents, that exist prior to the formation of the attorney-client relationship do not acquire the protection afforded by the privilege simply because the client transfers them to the attorney.

To be privileged from disclosure, the attorney-client communication must meet a number of tests. First, the communication must have been made between a client and an attorney; second, the communication must have been made in the course of the attorney-client relationship; and, third, the communication must have been transmitted in confidence.

The Code defines an attorney as "a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation." Since the privilege is intended to encourage full disclosure, the client's reasonable but mistaken belief that the person he is consulting is an attorney does not defeat the privilege.

The Code defines a client as "a person who, directly or through an authorized representative, consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity * * *." A client is not limited to natural persons. The term includes corporations, public entities, and such unincorporated organizations as labor unions, social clubs, and fraternal societies when the organization is the client.

Although actual employment is not essential, to be privileged the information must be transmitted in the course of retaining a lawyer or securing a lawyer's legal services or advice in his professional capacity. The privilege "applies not only to communications made in anticipation of litigation, but also to [those made while securing] legal advice when no litigation is threatened."1 If employment does result, its termination does not affect the privilege. The protection against disclosure afforded by the privilege lasts until the privilege itself ends.

The privilege is not limited to the client's disclosures. It also protects the legal opinions and advice given by the lawyer in the course of the relationship.

The privilege created by the Code protects only information transmitted "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 or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted * * *." The Code rejects the eavesdropper doctrine, which permits individuals who overhear attorney-client communications to reveal them despite the desire of the attorney and client to keep the communications confidential. Clients are protected against the risk of disclosure by eavesdroppers and other wrongful interceptors of confidential information transmitted between clients and lawyers by permitting the holder of the privilege to assert the privilege against anyone, including an eavesdropper, who acquires the information without the client's consent.

If the client is aware that the means chosen for transmission discloses the information to third persons who are not authorized to be present, the communication is not confidential. Transmitting information under circumstances where others can easily overhear the communication is evidence that the client did not intend the communication to be confidential. Under the Code, however, communications between attorney and client are presumed to be confidential. The effect of the presumption is to shift to the party opposing the claim of privilege the burden of persuading the judge that the communication was not made in confidence.

The presence of third persons who can overhear the communication does not always strip the communication of protection. Third persons may be present to further the interests of the client in the consultation. Examples include spouses, parents, business associates, joint clients, interpreters, experts and others the client needs in consulting a lawyer or in securing the lawyer's advice or services.

Confidential communications are not limited to those that take place between the lawyer and the client. They also include communications by the client to third persons—such as the lawyers' secretary, guardians ad litem, as well as doctors and other experts employed by the lawyers to examine the client—who serve as conduits for the communication from the client to the attorney. These communications are considered confidential because they are "reasonably necessary for the transmission of the information" from the client to the attorney.

Confidential communications also embrace revelations by the client or by the attorney to experts whom the attorney desires to use in advising or serving the client. Such disclosures are entitled to protection because they are reasonably necessary for accomplishing the purpose for which the lawyer is consulted. Waiver of the privilege, however, will occur when the client designates or calls an expert as a witness to testify about matters which the expert could have learned only in the course of the attorney-client relationship.

As the holder of the privilege, the client, whether or not a party, has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication between the client and lawyer. The lawyer not only has the right to assert the privilege but has an obligation to do so if present when disclosure of the communication is sought.

Under the Code, the privilege may be claimed only if a holder of the privilege is in existence. In most jurisdictions, the privilege survives the death of the client.2 Under the Code, however, the privilege terminates when the client's estate is finally distributed and his personal representative is discharged.

Communications that otherwise would be privileged are not protected from disclosure if they fall within the enumerated exceptions. The key one is the crime-fraud exception. The Code provides that no privilege exists if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or fraud. A distinction is made between disclosures that merely reveal a plan to commit a crime or fraud and disclosures that are made for the purpose of obtaining the lawyer's help in aiding or enabling someone to commit or plan to commit a crime or fraud. Only the latter disclosures fall within the exception.

No privilege exists for communications relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the attorney-client relationship. As the Comment to § 958 emphasizes, "It would be unjust to permit a client either to accuse his attorney of a breach of duty and to invoke the privilege to prevent the attorney from bringing forth evidence in defense of the charge or to refuse to pay his attorney's fee and invoke the privilege to defeat the attorney's claim."

No privilege exists for communications which the lawyer reasonably believes must be disclosed to prevent a criminal act which the lawyer reasonably believes is likely to result in death or substantial bodily harm to an individual. This exception, which was added in 1993, parallels the exception for communications between a psychotherapist and a patient which the psychotherapist reasonably believes should be disclosed to prevent the patient from endangering himself or another.

Federal Rules. In 2008 Federal Rule of Evidence 502, relating to the attorney-client privilege and the work product doctrine, was enacted. According to the Advisory Committee Note, the rule has two purposes: "It resolves some longstanding disputes in the courts about the effect of certain disclosures of communications or information protected by the attorney-client privilege or as work product—specifically those disputes involving inadvertent disclosure and subject matter waiver." It also "responds to the widespread complaint that litigation costs necessary to protect against waiver of attorney-client privilege or work product have become prohibitive due to the concern that any disclosure (however innocent or minimal) will operate as a subject matter waiver of all protected communications or information."

§ 5.03 The Privilege Not to Testify Against a Spouse

CALIFORNIA EVIDENCE CODE

§ 970. Spouse's privilege not to testify against spouse; exceptions

Except as otherwise provided by statute, a married person has a privilege not to testify against his spouse in any proceeding.

§ 971. Privilege not to be called as a witness against spouse

Except as otherwise provided by statute, a married person whose spouse is a party to a proceeding has a privilege not to be called as a witness by an adverse party to that proceeding without the prior express consent of the spouse having the privilege under this section unless the party calling the spouse does so in good faith without knowledge of the marital relationship.

§ 972. Exceptions to privilege

A married person does not have a privilege under this article in:

(a) A proceeding brought by or on behalf of one spouse against the other spouse.

(b) A proceeding to commit or otherwise place his or her spouse or his or her spouse's property, or both, under the control of another because of the spouse's alleged mental or physical condition.

(c) A proceeding brought by or on behalf of a spouse to establish his or her competence.

(d) A proceeding under the Juvenile Court Law, Chapter 2 (commencing with Section 200) of Part 1 of Division 2 of the Welfare and Institutions Code.

(e) A criminal proceeding in which one spouse is charged with:

(1) A crime against the person or property of the other spouse or of a child, parent, relative, or cohabitant of either, whether committed before or during marriage.

(2) A crime against the person or property of a third person committed in the course of committing a crime against the person or property of the other spouse, whether committed before or during marriage.

(3) Bigamy.

(4) A crime defined by Section 270 or 270a of the Penal Code.

(f) A proceeding resulting from a criminal act which occurred prior to legal marriage of the spouses to each other regarding knowledge acquired prior to that marriage if prior to the legal marriage the witness spouse was aware that his or her spouse had been arrested for or had been formally charged with the crime or crimes about which the spouse is called to testify.

(g) A proceeding brought against the spouse by a former spouse so long as the property and debts of the marriage have not been adjudicated, or in order to establish, modify, or enforce a child, family or spousal support obligation arising from the marriage to the former spouse; in a proceeding brought against a spouse by the other parent in order to establish, modify, or enforce a child support obligation for a child of a nonmarital relationship of the spouse; or in a proceeding brought against a spouse by the guardian of a child of that spouse in order to establish, modify, or enforce a child support obligation of the spouse. The married person does not have a privilege under this subdivision to refuse to provide information relating to the issues of income, expenses, assets, debts, and employment of either spouse, but may assert the privilege as otherwise provided in this article if other information is requested by the former spouse, guardian, or other parent of the child.

Any person demanding the otherwise privileged information made available by this subdivision, who also has an obligation to support the child for whom an order to establish, modify, or enforce child support is sought, waives his or her marital privilege to the same extent as the spouse as provided in this subdivision.

§ 973. Waiver of privilege

(a) Unless erroneously compelled to do so, a married person who testifies in a proceeding to which his spouse is a party, or who testifies against his spouse in any proceeding, does not have a privilege under this article in the proceeding in which such testimony is given.

(b) There is no privilege under this article in a civil proceeding brought or defended by a married person for the immediate benefit of his spouse or of himself and his spouse.

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FEDERAL RULES OF EVIDENCE

RULE 505. HUSBAND–WIFE PRIVILEGE <FONT>[NOT ENACTED]</FONT>

(a) General rule of privilege. An accused in a criminal proceeding has a privilege to prevent his spouse from testifying against him.

(b) Who may claim the privilege. The privilege may be claimed by the accused or by the spouse on his behalf. The authority of the spouse to do so is presumed in the absence of evidence to the contrary.

(c) Exceptions. There is no privilege under this rule (1) in proceedings in which one spouse is charged with a crime against the person or property of the other or of a child of either, or with a crime against the person or property of a third person committed in the course of committing a crime against the other, or (2) as to matters occurring prior to the marriage, or (3) in proceedings in which a spouse is charged with importing an alien for prostitution or other immoral purpose in violation of 8 U.S.C. § 1328, with transporting a female in interstate commerce for immoral purposes or other offense in violation of 18 U.S.C. §§ 2421–2424, or with violation of other similar statutes.

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Comparative Note. The Code provides two spousal privileges. A married person has a privilege not to be called as a witness by the adverse party in any proceeding in which the other spouse is a party. Accordingly, unless the wife waives the privilege, a prosecutor may not call her to testify against her husband in a prosecution against the husband.

In addition, a married person has a privilege not to testify against a spouse in any proceeding irrespective of whether the spouse is a party. This privilege does not entitle a married person to decline to take the stand. It simply permits a married person to refuse to answer any question that would compel her to testify against her spouse. A criminal defendant, for example, may call a witness to establish that it was the witness's husband who committed the offense charged. In these circumstances, the witness can be compelled to take the stand since her husband is not a party, but she can refuse to answer any question that would compel her to testify against her husband.

The spousal privileges are designed to protect the marital relationship. According to the Comment to § 970, compelling a spouse to testify against the other spouse, "would seriously disturb or disrupt the marital relationship. Society stands to lose more from such disruption than it stands to gain from testimony which would be available if the privilege did not exist."

A valid marriage is essential to both privileges.

The privilege to decline answering any question compelling a spouse to testify against a spouse can be claimed only by the spouse whose testimony is sought. Because the privilege belongs only to the witness-spouse, the other spouse cannot claim the privilege.

This limitation also applies to a married person's privilege not to be called as a witness by the adverse party in an action in which the other spouse is a party. The privilege belongs only to the spouse whose testimony is sought.

Because the spousal privileges are not designed to encourage free and open communication between the spouses, the Code's general waiver provisions relating to confidential communications do not apply to the spousal privileges. Instead, the Code provides special rules pertaining to the waiver of the spousal privileges.

Married persons, like other privilege holders, can expressly waive their privileges. Moreover, spouses can lose the privileges by testifying. Unless erroneously compelled to do so, a married person who testifies in a proceeding to which his spouse is a party, or who testifies against his spouse in any proceeding, loses both spousal privileges in the proceeding in which the testimony is given.

Major exceptions to the spousal privileges include the following: The privileges do not apply to proceedings brought by or on behalf of one spouse against the other spouse; to proceedings to commit or otherwise place the other spouse or that spouse's property, or both, under the control of another because of the spouse's alleged mental or physical condition; to criminal proceedings in which one spouse is charged with a crime against the person or property of the other spouse or of a child, parent, relative, or cohabitant of either, whether or not committed before or during the marriage; and to proceedings "resulting from a criminal act which occurred prior to legal marriage of the spouses to each other regarding knowledge acquired prior to that marriage if prior to the legal marriage the witness spouse was aware that his or her spouse had been arrested for or had been formally charged with the crime or crimes about which the spouse is called to testify."

§ 5.04 Privilege for Confidential Marital Communications

CALIFORNIA EVIDENCE CODE

§ 980. Confidential marital communication privilege

Subject to Section 912 and except as otherwise provided in this article, a spouse (or his guardian or conservator when he has a guardian or conservator), whether or not a party, has a privilege during the marital relationship and afterwards to refuse to disclose, and to prevent another from disclosing, a communication if he claims the privilege and the communication was made in confidence between him and the other spouse while they were husband and wife.

§ 981. Exception: Crime or fraud

There is no privilege under this article if the communication was made, in whole or in part, to enable or aid anyone to commit or plan to commit a crime or a fraud.

§ 982. Commitment or similar proceedings

There is no privilege under this article in a proceeding to commit either spouse or otherwise place him or his property, or both, under the control of another because of his alleged mental or physical condition.

§ 983. Competency proceedings

There is no privilege under this article in a proceeding brought by or on behalf of either spouse to establish his competence.

§ 984. Proceeding between spouses

There is no privilege under this article in:

(a) A proceeding brought by or on behalf of one spouse against the other spouse.

(b) A proceeding between a surviving spouse and a person who claims through the deceased spouse, regardless of whether such claim is by testate or intestate succession or by inter vivos transaction.

§ 985. Criminal proceedings

There is no privilege under this article in a criminal proceeding in which one spouse is charged with:

(a) A crime committed at any time against the person or property of the other spouse or of a child of either.

(b) A crime committed at any time against the person or property of a third person committed in the course of committing a crime against the person or property of the other spouse.

(c) Bigamy.

(d) A crime defined by Section 270 or 270a of the Penal Code.

§ 986. Juvenile court proceedings

There is no privilege under this article in a proceeding under the Juvenile Court Law, Chapter 2 (commencing with Section 200) of Part 1 of Division 2 of the Welfare and Institutions Code.

§ 987. Communication offered by spouse who is criminal defendant

There is no privilege under this article in a criminal proceeding in which the communication is offered in evidence by a defendant who is one of the spouses between whom the communication was made.

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Comparative Note. Under the Code, a person, whether or not a party, has a privilege to refuse to disclose and to prevent another from disclosing a communication which was made in confidence between that person and his or her spouse while they were husband and wife. Since the purpose of the privilege is to encourage free and open communication between spouses, the privilege may be claimed to protect confidential communications made during a marriage even though the marriage has been terminated by the time the privilege is claimed.

To be privileged, the communication must meet a number of tests. First, the communication must have been made during the marital relationship. That requires a showing that the communication was made while the spouses were legally married.

California does not recognize Common Law marriages entered into within the state. California, however, does recognize Common Law marriages entered into in a state where such marriages are valid. Spouses legally married under the laws of such a state may claim the California privilege for confidential marital communications.

Second, the privilege protects only communications between the spouses. The privilege will not prevent a wife from testifying about noncommunicative acts, such as crimes, the husband performed in her presence.

Third, the communication must have been "made in confidence". If the communicating spouse is aware that the means chosen for transmitting the information discloses it to third persons, the communication is not confidential.1 Transmitting the information under circumstances where third persons can easily overhear it is evidence that the communicating spouse did not intend the communication to be confidential. Under the Code, communications between spouses are presumed to be confidential.2 The effect of the presumption is to place on the party opposing the claim of privilege the burden of persuading the judge that the communication was not made in confidence.

The Code rejects the eavesdropper doctrine. This doctrine permits individuals who overhear confidential communications between spouses to reveal them despite the desire of the spouses to keep them confidential. The Code protects spouses against the risk of disclosure by eavesdroppers and other wrongful interceptors of confidential information by permitting the spouses to assert the privilege against anyone, including the eavesdropper, who acquires the information without the spouses' consent.

Both spouses are the holders of the privilege, and either may claim it.

Major exceptions to the privilege include communications made in whole or part to enable or aid anyone to commit or plan to commit a crime or fraud; communications offered in a proceeding to commit either spouse or otherwise place him or his property, or both, under the control of another because of his alleged mental or physical condition; communications offered in a proceeding brought by or on behalf of one spouse against the other spouse or between a surviving spouse and a person who claims through the deceased spouse, regardless of whether such claim is by testate or intestate succession or by inter vivos transaction; and communications offered in a criminal proceeding in which one spouse is charged with committing a crime at any time against the person or property of the other spouse or of a child of either spouse.

The proposed Federal Rules of Evidence do not contain a privilege for confidential marital communications.

§ 5.05 The Physician–Patient Privilege

CALIFORNIA EVIDENCE CODE

§ 990. Physician

As used in this article, "physician" means a person authorized, or reasonably believed by the patient to be authorized, to practice medicine in any state or nation.

§ 991. Patient

As used in this article, "patient" means a person who consults a physician or submits to an examination by a physician for the purpose of securing a diagnosis or preventive, palliative, or curative treatment of his physical or mental or emotional condition.

§ 992. Confidential communication between patient and physician

As used in this article, "confidential communication between patient and physician" means 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.

§ 993. Holder of the privilege

As used in this article, "holder of the privilege" means:

(a) The patient when he has no guardian or conservator.

(b) A guardian or conservator of the patient when the patient has a guardian or conservator.

(c) The personal representative of the patient if the patient is dead.

§ 994. Physician-patient privilege

Subject to Section 912 and except as otherwise provided in this article, the patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and physician if the privilege is claimed by:

(a) The holder of the privilege;

(b) A person who is authorized to claim the privilege by the holder of the privilege; or

(c) The person who was the physician at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if he or she is otherwise instructed by a person authorized to permit disclosure.

The relationship of a physician and patient shall exist between a medical or podiatry corporation as defined in the Medical Practice Act and the patient to whom it renders professional services, as well as between such patients and licensed physicians and surgeons employed by such corporation to render services to such patients. The word "persons" as used in this subdivision includes partnerships, corporations, limited liability companies, associations, and other groups and entities.

§ 995. When physician required to claim privilege

The physician who received or made a communication subject to the privilege under this article shall claim the privilege whenever he is present when the communication is sought to be disclosed and is authorized to claim the privilege under subdivision (c) of Section 994.

§ 996. Patient-litigant exception

There is no privilege under this article as to a communication relevant to an issue concerning the condition of the patient if such issue has been tendered by:

(a) The patient;

(b) Any party claiming through or under the patient;

(c) Any party claiming as a beneficiary of the patient through a contract to which the patient is or was a party; or

(d) The plaintiff in an action brought under Section 376 or 377 of the Code of Civil Procedure for damages for the injury or death of the patient.

§ 997. Exception: crime or tort

There is no privilege under this article if the services of the physician were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a tort or to escape detection or apprehension after the commission of a crime or a tort.

§ 998. Criminal proceeding

There is no privilege under this article in a criminal proceeding.

§ 999. Communication relating to patient condition in proceeding to recover damages; good cause

There is no privilege under this article as to a communication relevant to an issue concerning the condition of the patient in a proceeding to recover damages on account of the conduct of the patient if good cause for disclosure of the communication is shown.

§ 1000. Parties claiming through deceased patient

There is no privilege under this article as to a communication relevant to an issue between parties all of whom claim through a deceased patient, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction.

§ 1001. Breach of duty arising out of physician-patient relationship

There is no privilege under this article as to a communication relevant to an issue of breach, by the physician or by the patient, of a duty arising out of the physician-patient relationship.

§ 1002. Intention of deceased patient concerning writing affecting property interest

There is no privilege under this article as to a communication relevant to an issue concerning the intention of a patient, now deceased, with respect to a deed of conveyance, will, or other writing, executed by the patient, purporting to affect an interest in property.

§ 1003. Validity of writing affecting property interest

There is no privilege under this article as to a communication relevant to an issue concerning the validity of a deed of conveyance, will, or other writing, executed by a patient, now deceased, purporting to affect an interest in property.

§ 1004. Commitment or similar proceeding

There is no privilege under this article in a proceeding to commit the patient or otherwise place him or his property, or both, under the control of another because of his alleged mental or physical condition.

§ 1005. Proceeding to establish competence

There is no privilege under this article in a proceeding brought by or on behalf of the patient to establish his competence.

§ 1006. Required report

There is no privilege under this article as to information that the physician or the patient is required to report to a public employee, or as to information required to be recorded in a public office, if such report or record is open to public inspection.

§ 1007. Proceeding to terminate right, license or privilege

There is no privilege under this article in a proceeding brought by a public entity to determine whether a right, authority, license, or privilege (including the right or privilege to be employed by the public entity or to hold a public office) should be revoked, suspended, terminated, limited, or conditioned.

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Comparative Note. The physician-patient privilege seeks to promote effective diagnosis and treatment by encouraging full disclosure by patients. The privilege also seeks to protect the patient from the humiliation that might follow from the disclosure of the patient's ailments. The Code seeks to achieve these goals by giving patients, whether or not a party, a privilege to refuse to disclose and to prevent another from disclosing a confidential communication between the patient and the physician. To be privileged under the Code, the communication must meet a number of criteria.

First, the communication must be one made between the patient and the physician in the course of the physician-patient relationship. Second, only those aspects of the communication transmitted in the course of the physician-patient relationship are protected from disclosure. And, third, the communication must be transmitted in a way intended to keep the communication confidential.

To be protected from disclosure, the communication must be one made between the patient and the physician in the course of the physician-patient relationship. However, neither a contract to treat nor payment of the fees is necessary to the existence of the privilege.

The Code defines a patient as someone "who consults a physician or submits to an examination by a physician for the purpose of securing a diagnosis or preventive, palliative, or curative treatment of his physical or mental or emotional condition." No distinction is made between consultations for diagnosis and consultations for treatment.

The Code defines a physician as "a person authorized, or reasonably believed by the patient to be authorized, to practice medicine in any state or nation." The privilege thus protects patients from reasonable mistakes about the licensing status of the physician they consult.

Second, the privilege protects from disclosure only those communications between the patient and physician transmitted in the course of the physician-patient relationship. The privilege protects the patient's verbal disclosures as well as the nonverbal information which the physician obtains by examining the patient. Photographs and videotapes taken by a physician of a patient's condition are entitled to the same protection as the physicians's observations of the condition.1 The physician's diagnosis and advice are also within the privilege.2

Third, the information must be transmitted "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 * * *."

The Code rejects the eavesdropper doctrine. This doctrine permits individuals who overhear physician-patient communications to reveal them despite the desire of the patient and the physician to keep them confidential. Patients are protected against the risk of disclosure by eavesdroppers and other wrongful interceptors of confidential information by permitting the holder of the privilege to assert it against anyone, including the eavesdropper, who acquires the information without the patient's consent.

If the patient is aware that the means chosen for transmitting the information discloses it to third persons who are not authorized to be present, the communication is not deemed confidential.3 Such a communication acquires no protection and those who overhear it, as well as the patient and the physician, can be compelled to disclose the communication. Transmitting the information under circumstances where others can easily overhear it is evidence that the patient did not intend the communication to be confidential. Under the Code, however, communications between physicians and patients are presumed to be confidential.4 The effect of the presumption is to place on the party opposing the claim of privilege the burden of persuading the judge that the communication was not made in confidence.

The presence of third persons to further the interest of the patient in the consultation does not strip the information of its confidential nature. Spouse, parents, nurses, technicians, and others the patient needs in consulting the physician or in securing his or her services may be present.

Confidential communications are not limited to those that take place between the patient and the physician. They also include communications made to third persons—such as the physician's secretary or nurse or another physician—who serve as conduits for the communication from the patient to the physician. These communications are confidential because they are reasonably necessary for the transmission of the information.

Confidential communications also embrace revelations by the patient or the physician to experts whom the physician wishes to use in diagnosing or treating the patient's condition. These disclosures are entitled to protection because they are reasonably necessary for accomplishing the purpose for which the physician is consulted. These disclosures include also the information a physician provides a patient's health insurer to obtain payment of the physician's fees.5

As the holder of the privilege, a patient, whether or not a party, has a privilege to refuse to disclose or to prevent another from disclosing a confidential communication between the patient and the physician. The physician not only has the right to claim the privilege but has an obligation to do so if present when disclosure of the communication is sought.

The following are among the major exceptions to the privilege.

No privilege exists for communications relevant to an issue concerning the condition of the patient if the issue has been tendered by (1) the patient, (2) a party claiming through or under the patient, (3) a party claiming as a beneficiary of the patient through a contract to which the patient is or was a party, or (4) a plaintiff who brings an action under the Civil Procedure Code for damages for injury to or the death of the patient.

No privilege exists if the services of the physician were sought or obtained to enable or aid any one to commit or plan to commit a crime or a tort or to escape detection or apprehension after committing a crime or tort. No privilege exists if disclosure is sought in a criminal proceeding. In contrast, the psychotherapist-patient privilege applies in all proceedings.

No privilege exists in administrative proceedings brought by a public entity to determine whether a right, authority, license, or privilege (including the right or privilege to be employed by the public entity or to hold a public office) should be revoked, suspended, terminated, limited, or conditioned.

No privilege exists for communications relevant to an issue of breach, by the physician or by the patient, of a duty arising out of the physician-patient relationship.

No privilege exists for communications offered in proceedings to commit the patient or otherwise place him or his property, or both, under the control of another because of the patient's alleged mental or physical condition.

No privilege exists for communications offered in proceedings brought by or on behalf of the patient to establish his competence.

The proposed Federal Rules of Evidence do not contain an equivalent privilege.

§	5.06 The Psychotherapist–Patient Privilege

CALIFORNIA EVIDENCE CODE

§ 1010. Psychotherapist

As used in this article, "psychotherapist" means:

(a) A person authorized, or reasonably believed by the patient to be authorized, to practice medicine in any state or nation who devotes, or is reasonably believed by the patient to devote, a substantial portion of his or her time to the practice of psychiatry.

(b) A person licensed as a psychologist under Chapter 6.6 (commencing with Section 2900) of Division 2 of the Business and Professions Code.

(c) A person licensed as a clinical social worker under Article 4 (commencing with Section 4996) of Chapter 14 of Division 2 of the Business and Professions Code, when he or she is engaged in applied psychotherapy of a nonmedical nature.

(d) A person who is serving as a school psychologist and holds a credential authorizing that service issued by the state.

(e) A person licensed as a marriage, family, and child counselor under Chapter 13 (commencing with Section 4980) of Division 2 of the Business and Professions Code.

(f) A person registered as a psychological assistant who is under the supervision of a licensed psychologist or board certified psychiatrist as required by Section 2913 of the Business and Professions Code, or a person registered as a marriage, family, and child counselor intern who is under the supervision of a licensed marriage, family, and child counselor, a licensed clinical social worker, a licensed psychologist, or a licensed physician and surgeon certified in psychiatry, as specified in Section 4980.44 of the Business and Professions Code.

(g) A person registered as an associate clinical social worker who is under supervision as specified in Section 4996.23 of the Business and Professions Code.

(h) A person exempt from the Psychology Licensing Law pursuant to subdivision (d) of Section 2909 of the Business and Professions Code who is under the supervision of a licensed psychologist or board certified psychiatrist.

(i) A psychological intern as defined in Section 2911 of the Business and Professions Code who is under the supervision of a licensed psychologist or board certified psychiatrist.

(j) A trainee, as defined in subdivision (c) of Section 4980.03 of the Business and Professions Code, who is fulfilling his or her supervised practicum required by subparagraph (B) of paragraph (1) of subdivision (d) of Section 4980.36 of, or subdivision (c) of Section 4980.37 of, the Business and Professions Code and is supervised by a licensed psychologist, a board certified psychiatrist, a licensed clinical social worker, a licensed marriage and family therapist, or a licensed professional clinical counselor.

(k) A person licensed as a registered nurse pursuant to Chapter 6 (commencing with Section 2700) of Division 2 of the Business and Professions Code, who possesses a master's degree in psychiatric mental health nursing.

(l) An advanced practice registered nurse who is certified as a clinical nurse specialist pursuant to Article 9 (commencing with Section 2828) of Chapter 6 of Division 2 of the Business and Professions Code and who participates in expert clinical practice in the specialty of psychiatric-
mental health nursing.

(m) A person rendering mental health treatment or counseling services as authorized pursuant to Section 6924 of the Family Code.

(n) A person licensed as a professional clinical counselor under Chapter 16 (commencing with Section 4999.10) of Division 2 of the Business and Professions Code.

(o) A person registered as a clinical counselor intern who is under the supervision of a licensed professional clinical counselor, a licensed marriage and family therapist, a licensed clinical social worker, a licensed psychologist, or a licensed physician and surgeon certified in psychiatry, as specified in Sections 4999.42 to 4999.46, inclusive, of the Business and Professions Code.

(p) A clinical counselor trainee, as defined in subdivision (g) of Section 4999.12 of the Business and Professions Code, who is fulfilling his or her supervised practicum required by paragraph (3) of subdivision (c) of Section 4999.32 of, or paragraph (3) of subdivision (c) of Section 4999.33 of, the Business and Professions Code, and is supervised by a licensed psychologist, a board-certified psychiatrist, a licensed clinical social worker, a licensed marriage and family therapist, or a licensed professional clinical counselor.

§ 1010.5. Privileged communication between patient and educational psychologist

A communication between a patient and an educational psychologist, licensed under Article 5 (commencing with Section 4986) of Chapter 13 of Division 2 of the Business and Professions Code, shall be privileged to the same extent, and subject to the same limitations, as a communication between a patient and a psychotherapist described in subdivisions (c), (d), and (e) of Section 1010.

§ 1011. Patient

As used in this article, "patient" means a person who consults a psychotherapist or submits to an examination by a psychotherapist for the purpose of securing a diagnosis or preventive, palliative, or curative treatment of his mental or emotional condition or who submits to an examination of his mental or emotional condition for the purpose of scientific research on mental or emotional problems.

§ 1012. Confidential communication between patient and psychotherapist

As used in this article, "confidential communication between patient and psychotherapist" means information, including information obtained by an examination of the patient, transmitted between a patient and his psychotherapist 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 psychotherapist is consulted, and includes a diagnosis made and the advice given by the psychotherapist in the course of that relationship.

§ 1013. Holder of the privilege

As used in this article, "holder of the privilege" means:

(a) The patient when he has no guardian or conservator.

(b) A guardian or conservator of the patient when the patient has a guardian or conservator.

(c) The personal representative of the patient if the patient is dead.

§ 1014. Psychotherapist-patient privilege; application to individuals and entities

Subject to Section 912 and except as otherwise provided in this article, the patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist if the privilege is claimed by:

(a) The holder of the privilege.

(b) A person who is authorized to claim the privilege by the holder of the privilege.

(c) The person who was the psychotherapist at the time of the confidential communication, but the person may not claim the privilege if there is no holder of the privilege in existence or if he or she is otherwise instructed by a person authorized to permit disclosure.

The relationship of a psychotherapist and patient shall exist between a psychological corporation as defined in Article 9 (commencing with Section 2995) of Chapter 6.6 of Division 2 of the Business and Professions Code, a marriage and family corporation as defined in Article 6 (commencing with Section 4987.5) of Chapter 13 of Division 2 of the Business and Professions Code, a licensed clinical social workers corporation as defined in Article 5 (commencing with Section 4998) of Chapter 14 of Division 2 of the Business and Professions Code, or a professional clinical counselor corporation as defined in Article 7 (commencing with Section 4999.123) of Chapter 16 of Division 2 of the Business and Professions Code, and the patient to whom it renders professional services, as well as between those patients and psychotherapists employed by those corporations to render services to those patients. The word "persons" as used in this subdivision includes partnerships, corporations, limited liability companies, associations and other groups and entities.

§ 1014.5. Repealed by Stats.1994, c. 1270 (A.B.2659), § 2

§ 1015. When psychotherapist required to claim privilege

The psychotherapist who received or made a communication subject to the privilege under this article shall claim the privilege whenever he is present when the communication is sought to be disclosed and is authorized to claim the privilege under subdivision (c) of Section 1014.

§ 1016. Exception: Patient-litigant exception

There is no privilege under this article as to a communication relevant to an issue concerning the mental or emotional condition of the patient if such issue has been tendered by:

(a) The patient;

(b) Any party claiming through or under the patient;

(c) Any party claiming as a beneficiary of the patient through a contract to which the patient is or was a party; or

(d) The plaintiff in an action brought under Section 376 or 377 of the Code of Civil Procedure for damages for the injury or death of the patient.

§ 1017. Exception: Psychotherapist appointed by court or board of prison terms

(a) There is no privilege under this article if the psychotherapist is appointed by order of a court to examine the patient, but this exception does not apply where the psychotherapist is appointed by order of the court upon the request of the lawyer for the defendant in a criminal proceeding in order to provide the lawyer with information needed so that he or she may advise the defendant whether to enter or withdraw a plea based on insanity or to present a defense based on his or her mental or emotional condition.

(b) There is no privilege under this article if the psychotherapist is appointed by the Board of Prison Terms to examine a patient pursuant to the provisions of Article 4 (commencing with Section 2960) of Chapter 7 of Title 1 of Part 3 of the Penal Code.

§ 1018. Exception: Crime or tort

There is no privilege under this article if the services of the psychotherapist were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a tort or to escape detection or apprehension after the commission of a crime or a tort.

§ 1019. Exception: Parties claiming through deceased patient

There is no privilege under this article as to a communication relevant to an issue between parties all of whom claim through a deceased patient, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction.

§ 1020. Exception: Breach of duty arising out of psychotherapist-patient relationship

There is no privilege under this article as to a communication relevant to an issue of breach, by the psychotherapist or by the patient, of a duty arising out of the psychotherapist-patient relationship.

§ 1021. Exception: Intention of deceased patient concerning writing affecting property interest

There is no privilege under this article as to a communication relevant to an issue concerning the intention of a patient, now deceased, with respect to a deed of conveyance, will, or other writing, executed by the patient, purporting to affect an interest in property.

§ 1022. Exception: Validity of writing affecting property interest

There is no privilege under this article as to a communication relevant to an issue concerning the validity of a deed of conveyance, will, or other writing, executed by a patient, now deceased, purporting to affect an interest in property.

§ 1023. Exception: Proceeding to determine sanity of criminal defendant

There is no privilege under this article in a proceeding under Chapter 6 (commencing with Section 1367) of Title 10 of Part 2 of the Penal Code initiated at the request of the defendant in a criminal action to determine his sanity.

§ 1024. Exception: Patient dangerous to himself or others

There is no privilege under this article if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger.

§ 1025. Exception: Proceeding to establish competence

There is no privilege under this article in a proceeding brought by or on behalf of the patient to establish his competence.

§ 1026. Exception: Required report

There is no privilege under this article as to information that the psychotherapist or the patient is required to report to a public employee or as to information required to be recorded in a public office, if such report or record is open to public inspection.

§ 1027. Exception: Child under 16 victim of crime

There is no privilege under this article if all of the following circumstances exist:

(a) The patient is a child under the age of 16.

(b) The psychotherapist has reasonable cause to believe that the patient has been the victim of a crime and that disclosure of the communication is in the best interest of the child.

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FEDERAL RULES OF EVIDENCE

RULE 504. PSYCHOTHERAPIST–PATIENT PRIVILEGE <FONT>[NOT ENACTED]</FONT>

(a) Definitions.

(1) A "patient" is a person who consults or is examined or interviewed by a psychotherapist.

(2) A "psychotherapist" is (A) a person authorized to practice medicine in any state or nation, or reasonably believed by the patient so to be, while engaged in the diagnosis or treatment of a mental or emotional condition, including drug addiction, or (B) a person licensed or certified as a psychologist under the laws of any state or nation, while similarly engaged.

(3) A communication is "confidential" if not intended to be disclosed to third persons other than those present to further the interest of the patient in the consultation, examination, or interview, or persons reasonably necessary for the transmission of the communication, or persons who are participating in the diagnosis and treatment under the direction of the psychotherapist, including members of the patient's family.

(b) General rule of privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purposes of diagnosis or treatment of his mental or emotional condition, including drug addiction, among himself, his psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient's family.

(c) Who may claim the privilege. The privilege may be claimed by the patient, by his guardian or conservator, or by the personal representative of a deceased patient. The person who was the psychotherapist may claim the privilege but only on behalf of the patient. His authority so to do is presumed in the absence of evidence to the contrary.

(d) Exceptions.

(1) Proceedings for hospitalization. There is no privilege under this rule for communications relevant to an issue in proceedings to hospitalize the patient for mental illness, if the psychotherapist in the course of diagnosis or treatment has determined that the patient is in need of hospitalization.

(2) Examination by order of judge. If the judge orders an examination of the mental or emotional condition of the patient, communications made in the course thereof are not privileged under this rule with respect to the particular purpose for which the examination is ordered unless the judge orders otherwise.

(3) Condition an element of claim or defense. There is no privilege under this rule as to communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense, or, after the patient's death, in any proceeding in which any party relies upon the condition as an element of his claim or defense.

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Comparative Note. The psychotherapist-patient privilege is designed to promote effective diagnosis and treatment by psychotherapists by encouraging full disclosure by patients. It is also designed to enhance research on mental and emotional problems by encouraging full disclosure by research subjects. Accordingly, the Code provides patients and research subjects with a privilege to refuse to disclose and to prevent another from disclosing a confidential communication between the patient or research subject and the psychotherapist. To be privileged under the Code, the communication must meet a number of tests.

First, the communication must be between a patient and a psychotherapist in the course of the psychotherapist-patient relationship. A patient is defined as a person who consults a psychotherapist or submits to an examination by a psychotherapist for the purpose of securing a diagnosis or preventive, palliative, or curative treatment of his mental or emotional condition. Unless the dominant purpose is to seek diagnosis or treatment for a mental or emotional condition, the disclosures a person makes to a psychotherapist are not protected by the privilege.

A psychotherapist is defined broadly and includes a person authorized, or reasonably believed by the patient to be a psychiatrist, psychologist, marriage or family therapist, licensed clinical social worker, mental health nurse, or psychological intern.

Second, to be protected the communication must consist of information that is transmitted between the patient and the psychotherapist in the course of the psychotherapist relationship. The protected information includes the fact of consultation, as well as the patient's identity, as disclosure would identify the patient as having mental or emotional difficulties.

The privilege is not limited to disclosures made by the patient. It includes also the diagnosis made and the advice given by the psychotherapist in the course of the relationship. The privilege, however, does not cover warnings by psychotherapists about a patient's condition when the substantive law governing the case makes such warnings a material issue. In San Diego Trolley, Inc. v. Superior Court1 the plaintiff sought to recover for injuries she sustained when one of the defendant's trolleys ran over her. At her deposition, the trolley operator admitted that at the time of the accident she had been under psychiatric care for anxiety. Although the psychotherapist-patient privilege protected the patient's communications from disclosure, it did not prevent the plaintiff from discovering whether the psychotherapist had warned the defendant about whether the operator's medical condition impaired her ability to operate the trolley. Under the substantive law governing the personal injury action, such a warning and its disregard would constitute a ground of liability.2

Third, the information must be transmitted "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 psychotherapist is consulted * * *." The Code rejects the eavesdropper doctrine. This doctrine permits individuals who overhear psychotherapist-patient communications to reveal them despite the desire of the patient and the psychotherapist to keep the communications confidential. Patients are protected against the risk of disclosure by eavesdroppers and other wrongful interceptors of confidential information transmitted between patients and psychotherapists by permitting the holder of the privilege to assert it against anyone, including the eavesdropper, who acquires the information without the patient's consent.

If the patient is aware that the means chosen for transmission discloses the information to third persons who are not authorized to be present, the communication is not confidential.3 Such a communication acquires no protection and can be disclosed by those who overhear it. Transmitting the information under circumstances where others could easily overhear it is evidence that the patient did not intend the communication to be confidential. Under the Code, however, communications between psychotherapists and patients are presumed to be confidential.4 The effect of the presumption is to shift to the party opposing the claim of privilege the burden of persuading the judge that the communication was not made in confidence.

The presence of third persons to further the interest of the patient in the consultation does not strip the information of its confidential nature. Spouses, parents, and others who the patient needs in consulting the psychotherapist or in securing his services may be present. Moreover, disclosing information in the presence of members of a therapy group does not defeat the privilege.5

Confidential communications are not limited to those that take place between the patient and the psychotherapist. They also include communications made to third persons—such as the psychotherapist's secretary or a physician or clinical social worker—who serve as conduits for the communication from the patient to the psychotherapist. These communications are confidential because they are reasonably necessary for the transmission of the information.

Confidential communications also embrace revelations by the patient to experts the psychotherapist wishes to use in diagnosing or treating the patient's condition. These disclosures are entitled to protection because they are reasonably necessary for accomplishing the purpose for which the psychotherapist is consulted.

As the holder, a patient, whether or not a party, has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication between the patient and the psychotherapist. The psychotherapist not only has the right to claim the privilege, but is under an obligation to do so if present when disclosure of the communication is sought.

Communications that otherwise would be privileged are not protected from disclosure if they fall within the enumerated exceptions. The following are major exceptions.

1. No privilege exists for communications relevant to an issue concerning the mental or emotional condition of the patient if such issue has been tendered by (1) the patient; (2) any party claiming through or under the patient; (3) any party claiming as a beneficiary of the patient through a contract to which the patient is or was a party; or (4) a plaintiff in an action for the wrongful death of the patient or the parent in an action for injury to a child-patient.

The exception does not apply unless the patient tenders a specific mental or emotional condition. A claim for damages for physical injuries does not fall within the exception just because such injuries give rise to pain and other discomforts experienced at a mental level. On the other hand, a claim for damages for emotional distress can tender the patient's mental or emotional condition.

2. No privilege exists for communications between a patient and a psychotherapist appointed by order of a court to examine the patient.

3. No privilege exists for communications between a patient and a psychotherapist appointed by the Board of Prison Terms to examine the patient pursuant to the Penal Code provisions requiring the evaluation of prisoners for severe mental disorders.

4. No privilege exists for communications between a patient and psychotherapist if the services of the psychotherapist were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a tort or to escape detection or apprehension after committing a crime or a tort.

5. No privilege exists for communications relevant to an issue of breach, by the psychotherapist or by the patient, of a duty arising out of the psychotherapist-patient relationship.

6. No privilege exists for communications offered in proceedings initiated at the request of the accused under the Penal Code to determine his sanity in a criminal action.

7. No privilege exists for communications "when the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger."

Though the exception overrides the privilege, the exception does not require the psychotherapist to disclose the threatening communication or even to issue a warning. But in Tarasoff v. Regents of the University of California,6 the California Supreme Court held that a psychotherapist has a Common Law duty to use reasonable care to warn the intended victim of a patient who presents a serious danger of violence. The failure to discharge this duty can give rise to an action in negligence against the psychotherapist.7

8. No privilege exists if the patient is under the age of sixteen and the psychotherapist has reasonable cause to believe that the patient has been the victim of a crime and that disclosure of the communication is in the best interests of the child.

§ 5.07 Clergy–Penitent Privilege

CALIFORNIA EVIDENCE CODE

§ 1030. Member of the clergy

As used in this article, a "member of the clergy" means a priest, minister, religious practitioner, or similar functionary of a church or of a religious denomination or religious organization.

§ 1031. Penitent

As used in this article, "penitent" means a person who has made a penitential communication to a member of the clergy.

§ 1032. Penitential communication

As used in this article, "penitential communication" means a communication made in confidence, in the presence of no third person so far as the penitent is aware, to a member of the clergy who, in the course of the discipline or practice of the clergy member's church, denomination, or organization, is authorized or accustomed to hear those communications and, under the discipline or tenets of his or her church, denomination, or organization, has a duty to keep those communications secret.

§ 1033. Privilege of penitent

Subject to Section 912, a penitent, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a penitential communication if he or she claims the privilege.

§ 1034. Privilege of clergy

Subject to Section 912, a member of the clergy, whether or not a party, has a privilege to refuse to disclose a penitential communication if he or she claims the privilege.

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FEDERAL RULES OF EVIDENCE

RULE 506. COMMUNICATIONS TO CLERGYMEN <FONT>[NOT ENACTED]</FONT>

(a) Definitions. As used in this rule:

(1) A "clergyman" is a minister, priest, rabbi, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting him.

(2) A communication is "confidential" if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.

(b) General rule of privilege. A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual adviser.

(c) Who may claim the privilege. The privilege may be claimed by the person, by his guardian or conservator, or by his personal representative if he is deceased. The clergyman may claim the privilege on behalf of the person. His authority so to do is presumed in the absence of evidence to the contrary.

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Comparative Note. Under the Code, a penitent, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a penitential communication if the penitent claims the privilege. A member of the clergy has a more limited privilege. Whether or not a party, a member of the clergy has a privilege only to refuse to disclose a penitential communication if he or she claims the privilege. Unlike the penitent, a member of the clergy cannot prevent another from disclosing a penitential communication.

A penitent is a person who has made a penitential communication to a member of the clergy. A member of the clergy is "a priest, minister, religious practitioner, or similar functionary of a church or religious denomination or religious organization."

A penitential communication is "a communication made in confidence, in the presence of no third person so far as the penitent is aware, to a member of the clergy who, in course of the discipline or practice of his or her church, denomination, or organization, is authorized or accustomed to hear such communications and, under the discipline or tenets of his or her church, denomination, or organization, has a duty to keep such communications secret."

Penitential communications are not limited to confessions. Whether a particular communication qualifies as a penitential communication depends on whether the member of the clergy who receives it is authorized or accustomed to hear such communications and on whether the member of the clergy has a duty to keep the communication secret under the discipline or tenets of his or her church, denomination, or organization. In People v. Edwards1 an accused's admission of a crime to a member of the clergy was held to be outside the privilege because under the tenets of the clergyman's church such admissions were not entitled to secrecy.2

A penitential communication is not made in confidence if the penitent is aware that the means chosen for transmission discloses the communication to third persons.3 Such a communication does not acquire protection and can be disclosed by anyone having first-hand knowledge of the communication. Transmitting the information under circumstances where third persons can easily overhear the communication is evidence that the penitent did not intend the communication to be confidential. Under the Code, however, communications between penitents and members of the clergy are presumed to be confidential.4 The effect of the presumption is to place on the party opposing the claim of privilege the burden of persuading the judge that the communication was not made in confidence.

The Code rejects the eavesdropper doctrine. This doctrine permits individuals who overhear confidential communications between penitents and members of the clergy to reveal them despite their desire to keep the communications confidential. Penitents are protected against the risk of disclosure by eavesdroppers and other wrongful interceptors of confidential information by permitting them to assert the privilege against anyone, including the eavesdropper, who acquires the information without the penitent's consent. Member of the clergy, however, cannot object to disclosure by eavesdroppers. Under their privilege, they cannot prevent another from disclosing a penitential communication.

Both the penitent and member of the clergy can waive their respective privileges. But each can claim the privilege even if the other has waived. A penitent, however, can prevent a member of the clergy from revealing the penitential communication even if the member of the clergy waives his or her privilege. A member of the clergy does not have the same right, since a member of the clergy can refuse only to disclose a penitential communication.

The Code provides no exceptions to the clergy-penitent privilege.

§ 5.08 The Sexual Assault Counselor–Victim Privilege

CALIFORNIA EVIDENCE CODE

§ 1035. Victim

As used in this article, "victim" means a person who consults a sexual assault victim counselor for the purpose of securing advice or assistance concerning a mental, physical, or emotional condition caused by a sexual assault.

§ 1035.2. Sexual assault victim counselor

As used in this article, "sexual assault counselor" means any of the following:

(a) A person who is engaged in any office, hospital, institution, or center commonly known as a rape crisis center, whose primary purpose is the rendering of advice or assistance to victims of sexual assault and who has received a certificate evidencing completion of a training program in the counseling of sexual assault victims issued by a counseling center that meets the criteria for the award of a grant established pursuant to Section 13837 of the Penal Code and who meets one of the following requirements:

(1) Is a psychotherapist as defined in Section 1010; has a master's degree in counseling or a related field; or has one year of counseling experience, at least six months of which is in rape crisis counseling.

(2) Has 40 hours of training as described below and is supervised by an individual who qualifies as a counselor under paragraph (1). The training, supervised by a person qualified under paragraph (1), shall include, but not be limited to, the following areas:

(A) Law.

(B) Medicine.

(C) Societal attitudes.

(D) Crisis intervention and counseling techniques.

(E) Role playing.

(F) Referral services.

(G) Sexuality.

(b) A person who is employed by any organization providing the programs specified in Section 13835.2 of the Penal Code, whether financially compensated or not, for the purpose of counseling and assisting sexual assault victims, and who meets one of the following requirements:

(1) Is a psychotherapist as defined in Section 1010; has a master's degree in counseling or a related field; or has one year of counseling experience, at least six months of which is in rape assault counseling.

(2) Has the minimum training for sexual assault counseling required by guidelines established by the employing agency pursuant to subdivision (c) of Section 13835.10 of the Penal Code, and is supervised by an individual who qualifies as a counselor under paragraph (1). The training, supervised by a person qualified under paragraph (1), shall include, but not be limited to, the following areas:

(A) Law.

(B) Victimology.

(C) Counseling.

(D) Client and system advocacy.

(E) Referral services.

§ 1035.4. Confidential communication between the sexual assault counselor and the victim; disclosure

As used in this article, "confidential communication between the sexual assault counselor and the victim" means information transmitted between the victim and the sexual assault counselor in the course of their relationship and in confidence by a means which, so far as the victim is aware, discloses the information to no third persons other than those who are present to further the interests of the victim in the consultation or those to whom disclosures are reasonably necessary for the transmission of the information or an accomplishment of the purposes for which the sexual assault counselor is consulted. The term includes all information regarding the facts and circumstances involving the alleged sexual assault and also includes all information regarding the victim's prior or subsequent sexual conduct, and opinions regarding the victim's sexual conduct or reputation in sexual matters.

The court may compel disclosure of information received by the sexual assault counselor which constitutes relevant evidence of the facts and circumstances involving an alleged sexual assault about which the victim is complaining and which is the subject of a criminal proceeding if the court determines that the probative value outweighs the effect on the victim, the treatment relationship, and the treatment services if disclosure is compelled. The court may also compel disclosure in proceedings related to child abuse if the court determines the probative value outweighs the effect on the victim, the treatment relationship, and the treatment services if disclosure is compelled.

When a court is ruling on a claim of privilege under this article, the court may require the person from whom disclosure is sought or the person authorized to claim the privilege, or both, to disclose the information in chambers out of the presence and hearing of all persons except the person authorized to claim the privilege and such other persons as the person authorized to claim the privilege is willing to have present. If the judge determines that the information is privileged and must not be disclosed, neither he or she nor any other person may ever disclose, without the consent of a person authorized to permit disclosure, what was disclosed in the course of the proceedings in chambers.

If the court determines certain information shall be disclosed, the court shall so order and inform the defendant. If the court finds there is a reasonable likelihood that particular information is subject to disclosure pursuant to the balancing test provided in this section, the following procedure shall be followed:

(1) The court shall inform the defendant of the nature of the information which may be subject to disclosure.

(2) The court shall order a hearing out of the presence of the jury, if any, and at the hearing allow the questioning of the sexual assault counselor regarding the information which the court has determined may be subject to disclosure.

(3) At the conclusion of the hearing, the court shall rule which items of information, if any, shall be disclosed. The court may make an order stating what evidence may be introduced by the defendant and the nature of questions to be permitted. The defendant may then offer evidence pursuant to the order of the court. Admission of evidence concerning the sexual conduct of the complaining witness is subject to Sections 352, 782, and 1103.

§ 1035.6. Holder of the privilege

As used in this article, "holder of the privilege" means:

(a) The victim when such person has no guardian or conservator.

(b) A guardian or conservator of the victim when the victim has a guardian or conservator.

(c) The personal representative of the victim if the victim is dead.

§ 1035.8. Sexual assault victim-counselor privilege

A victim of a sexual assault, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between the victim and a sexual assault victim counselor if the privilege is claimed by any of the following:

(a) The holder of the privilege;

(b) A person who is authorized to claim the privilege by the holder of the privilege; or

(c) The person who was the sexual assault victim counselor at the time of the confidential communication, but that person may not claim the privilege if there is no holder of the privilege in existence or if he or she is otherwise instructed by a person authorized to permit disclosure.

§ 1036. Claim of privilege by sexual assault victim counselor

The sexual assault victim counselor who received or made a communication subject to the privilege under this article shall claim the privilege if he or she is present when the communication is sought to be disclosed and is authorized to claim the privilege under subdivision (c) of Section 1035.8.

§ 1036.2. Sexual assault

As used in this article, "sexual assault" includes all of the following:

(a) Rape, as defined in Section 261 of the Penal Code.

(b) Unlawful sexual intercourse, as defined in Section 261.5 of the Penal Code.

(c) Rape in concert with force and violence, as defined in Section 264.1 of the Penal Code.

(d) Rape of a spouse, as defined in Section 262 of the Penal Code.

(e) Sodomy, as defined in Section 286 of the Penal Code, except a violation of subdivision (e) of that section.

(f) A violation of Section 288 of the Penal Code.

(g) Oral copulation, as defined in Section 288a of the Penal Code, except a violation of subdivision (e) of that section.

(h) Sexual penetration, as defined in Section 289 of the Penal Code.

(i) Annoying or molesting a child under 18, as defined in Section 647a of the Penal Code.

(j) Any attempt to commit any of the above acts.

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Comparative Note. The Code provides that a victim of a sexual assault, whether or not a party, has a qualified privilege to refuse to disclose and to prevent another from disclosing a confidential communication between the victim and a sexual assault counselor. The purpose of the privilege is to promote effective counseling by encouraging full disclosure by victims. To be privileged, the communication must satisfy a number of tests.

First, the communication must be between the victim of a sexual assault and a sexual assault counselor in the course of the victim-sexual assault counselor relationship.

A sexual assault is defined broadly, ranging from various forms of rape to unlawful sexual intercourse and from various forms of lewd and lascivious conduct with children to molesting or annoying children. The term includes as well attempts to commit the enumerated offenses.

A victim is anyone who consults a sexual assault victim counselor for the purpose of securing advice or assistance concerning a mental, physical, or emotional condition caused by a sexual assault. A sexual assault victim counselor is someone whose primary purpose is to render advice or assistance to sexual assault victims and who is qualified to do so by reason of training and experience.

Second, the privilege extends only to information transmitted between the victim and the sexual assault counselor in the course of their relationship. The privilege includes all the facts and circumstances involved in the alleged sexual assault as well as all information regarding the victim's prior or subsequent sexual conduct and opinions regarding the victim's sexual conduct or reputation in sexual matters. The privilege, however, protects only the information transmitted between the victim and the counselor. It does not prevent disclosing the fact that the victim attended a sexual abuse presentation.1 But to encourage victims to seek advice and assistance, the privilege prevents disclosing the fact that the victim sought the help of a sexual abuse counselor.2

Third, the information must be transmitted "in confidence by a means which, so far as the victim is aware, discloses the information to no third persons other than those who are present to further the interests of the victim in the consultation or those to whom disclosures are reasonably necessary for the transmission of the information or an accomplishment of the purposes for which the sexual assault counselor is consulted." The Code rejects the eavesdropper doctrine, which allows individuals who overhear victim-sexual assault counselor communications to reveal them despite the desire of the victim and the counselor to keep them confidential. Victims are protected against the risk of disclosure by eavesdroppers and other wrongful interceptors by permitting the holder of the privilege to assert it against anyone, including eavesdroppers, who acquires the information without the victim's consent.

If the victim is aware that the means chosen for transmitting the information discloses it to third persons who are not authorized to be present, the communication is not deemed confidential.3 Such a communication acquires no protection and can be disclosed by those who overhear it. Transmitting the information under circumstances where others can easily overhear it is evidence that the victim did not intend the communication to be confidential. Under the Code, however, communications between victims and their counselors are presumed to be confidential.4 Consequently, the person opposing the privilege has the burden of persuading the judge that the communication was not made in confidence.

The presence of third persons to further the interests of the victim in the consultation does not strip the information of its confidential nature. Spouses, parents, and others the victim needs in consulting the counselor may be present.

Confidential communications are not limited to those that take place between the victim and the counselor. They can also include communications made to third persons who serve as conduits for the communication from the victim to the counselor. Examples include revelations by the victim to others whom the counselor wishes to use in counseling the victim. These disclosures are protected because they are reasonably necessary for accomplishing the purposes for which the counselor is consulted.

As the holder of the privilege, a victim of sexual assault, whether or not a party, has a privilege to refuse to disclose and prevent another from disclosing a confidential communication between the victim and a sexual assault victim counselor. The counselor not only has the right to claim the privilege, but has an obligation do so if present when disclosure of the communication is sought.

A court in the exercise of its discretion may compel disclosure of information received by the sexual assault counselor if certain conditions are met. First, the judge must find that the information received by the counselor "constitutes relevant evidence of the facts and circumstances involving an alleged sexual assault about which the victim is complaining and which is the subject of a criminal proceeding * * *." Second, the judge must find that the probative value of the evidence outweighs the prejudicial effects that disclosure of the information might have on the victim, the treatment relationship, and the treatment services. In ruling on the claim, the judge may require an in camera disclosure of the information claimed to be privileged.

The sexual assault victim-counselor privilege does not mandate the receipt of the evidence. Whether evidence of the victim's sexual conduct is admissible to prove that the victim consented to the acts or to attack the credibility of the victim is governed by §§ 782 and 1103.5

The proposed Federal Rules of Evidence do not contain an equivalent privilege.

§ 5.09 The Domestic Violence Counselor–Victim Privilege

CALIFORNIA EVIDENCE CODE

§ 1037. Victim

As used in this article, "victim" means any person who suffers domestic violence, as defined in Section 1037.7.

§ 1037.1. Domestic violence counselor; qualifications; domestic violence victim service organization

(a)(1) As used in this article, "domestic violence counselor" means a person who is employed by a domestic violence victim service organization, as defined in this article, whether financially compensated or not, for the purpose of rendering advice or assistance to victims of domestic violence and who has at least 40 hours of training as specified in paragraph (2).

(2) The 40 hours of training shall be supervised by an individual who qualifies as a counselor under paragraph (1), and who has at least one year of experience counseling domestic violence victims for the domestic violence victim service organization. The training shall include, but need not be limited to, the following areas: history of domestic violence, civil and criminal law as it relates to domestic violence, the domestic violence victim-counselor privilege and other laws that protect the confidentiality of victim records and information, societal attitudes towards domestic violence, peer counseling techniques, housing, public assistance and other financial resources available to meet the financial needs of domestic violence victims, and referral services available to domestic violence victims.

(3) A domestic violence counselor who has been employed by the domestic violence victim service organization for a period of less than six months shall be supervised by a domestic violence counselor who has at least one year of experience counseling domestic violence victims for the domestic violence victim service organization.

(b) As used in this article, "domestic violence victim service organization" means a nongovernmental organization or entity that provides shelter, programs, or services to victims of domestic violence and their children, including, but not limited to, either of the following:

(1) Domestic violence shelter-based programs, as described in Section 18294 of the Welfare and Institutions Code.

(2) Other programs with the primary mission to provide services to victims of domestic violence whether or not that program exists in an agency that provides additional services.

§ 1037.2. Confidential communication; compulsion of disclosure by court; claim of privilege

(a) As used in this article, "confidential communication" means any information, including, but not limited to, written or oral communication, transmitted between the victim and the counselor in the course of their relationship and in confidence by a means which, so far as the victim is aware, discloses the information to no third persons other than those who are present to further the interests of the victim in the consultation or those to whom disclosures are reasonably necessary for the transmission of the information or an accomplishment of the purposes for which the domestic violence counselor is consulted. The term includes all information regarding the facts and circumstances involving all incidences of domestic violence, as well as all information about the children of the victim or abuser and the relationship of the victim with the abuser.

(b) The court may compel disclosure of information received by a domestic violence counselor which constitutes relevant evidence of the facts and circumstances involving a crime allegedly perpetrated against the victim or another household member and which is the subject of a criminal proceeding, if the court determines that the probative value of the information outweighs the effect of disclosure of the information on the victim, the counseling relationship, and the counseling services. The court may compel disclosure if the victim is either dead or not the complaining witness in a criminal action against the perpetrator. The court may also compel disclosure in proceedings related to child abuse if the court determines that the probative value of the evidence outweighs the effect of the disclosure on the victim, the counseling relationship, and the counseling services.

(c) When a court rules on a claim of privilege under this article, it may require the person from whom disclosure is sought or the person authorized to claim the privilege, or both, to disclose the information in chambers out of the presence and hearing of all persons except the person authorized to claim the privilege and such other persons as the person authorized to claim the privilege consents to have present. If the judge determines that the information is privileged and shall not be disclosed, neither he nor she nor any other person may disclose, without the consent of a person authorized to permit disclosure, any information disclosed in the course of the proceedings in chambers.

(d) If the court determines that information shall be disclosed, the court shall so order and inform the defendant in the criminal action. If the court finds there is a reasonable likelihood that any information is subject to disclosure pursuant to the balancing test provided in this section, the procedure specified in subdivisions (1), (2), and (3) of Section 1035.4 shall be followed.

§ 1037.3. Child abuse; reporting

Nothing in this article shall be construed to limit any obligation to report instances of child abuse as required by Section 11166 of the Penal Code.

§ 1037.4. Holder of the privilege

As used in this article, "holder of the privilege" means:

(a) The victim when he or she has no guardian or conservator.

(b) A guardian or conservator of the victim when the victim has a guardian or conservator, unless the guardian or conservator is accused of perpetrating domestic violence against the victim.

§ 1037.5. Privilege of refusal to disclose communication; claimants

A victim of domestic violence, whether or not a party to the action, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between the victim and a domestic violence counselor in any proceeding specified in Section 901 if the privilege is claimed by any of the following persons:

(a) The holder of the privilege.

(b) A person who is authorized to claim the privilege by the holder of the privilege.

(c) The person who was the domestic violence counselor at the time of the confidential communication. However, that person may not claim the privilege if there is no holder of the privilege in existence or if he or she is otherwise instructed by a person authorized to permit disclosure.

§ 1037.6. Claim of privilege by counselor

The domestic violence counselor who received or made a communication subject to the privilege granted by this article shall claim the privilege whenever he or she is present when the communication is sought to be disclosed and he or she is authorized to claim the privilege under subdivision (c) of Section 1037.5.

§ 1037.7. Domestic violence

As used in this article, "domestic violence" means "domestic violence" as defined in Section 6211 of the Family Code.

§ 1037.8. Notice; limitations on confidential communications

A domestic violence counselor shall inform a domestic violence victim of any applicable limitations on confidentiality of communications between the victim and the domestic violence counselor. This information may be given orally.

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Comparative Note. Under the Code, a victim of domestic violence, whether or not a party, has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication between the victim and a domestic violence counselor. The purpose of the privilege is to promote effective counseling by encouraging full disclosure by the victim. To be privileged, the communication must meet a number of tests.

First, the communication must be between the victim of domestic violence and a domestic violence counselor in the course of the domestic violence victim-counselor relationship. Domestic violence is defined as abuse perpetrated against a family or household member. A family or household member means "a spouse, former spouse, parent, child, any other adult person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who within the last six months regularly resided in the household."

Domestic violence also includes abuse against a person who is in, or has been in, a dating, courtship, or engagement relationship by a person with whom they have had a dating, courtship, or engagement relationship. The term also includes abuse against the mother of a minor child who under the Uniform Parentage Act is presumed to be the child of the male parent. Finally, the term embraces abuse by one parent against the other parent.

Abuse means "intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to herself, himself, or another."

A victim is anyone who suffers domestic violence as that term is defined. A domestic violence counselor is a person employed for the purpose of rendering advice or assistance to victims of domestic violence and who is qualified to do so by reason of training and experience.

Second, the privilege extends only to information transmitted between the victim and the counselor in the course of their relationship. The privilege includes "all information regarding the facts and circumstances involving all incidences of domestic violence, as well as all information about the children or the victim or abuser and the relationship of the victim with the abuser."

Third, to be privileged, the information must be transmitted "in confidence by a means which so far as the victim is aware, discloses the information to no third persons other than those who are present to further the interests of the victim in the consultation or those to whom disclosures are reasonably necessary for the transmission of the information or an accomplishment of the purposes for which the domestic violence counselor is consulted." The Code rejects the eavesdropper doctrine, which permits individuals who overhear domestic violence victim-counselor communications to reveal them despite the desire of the victim and the counselor to maintain them confidential. Victims are protected against the risk of disclosure by eavesdroppers and other wrongful interceptors by permitting the holder of the privilege to assert it against anyone, including the eavesdropper, who acquires the information without the victim's consent.

If the victim is aware that the means chosen for transmitting the information discloses it to third persons who are not authorized to be present, the communication is not confidential.1 Transmitting the information under circumstances where others can easily overhear it is evidence that the victim did not intend the communication to be confidential. Under the Code, communications between domestic violence victims and their counselors are presumed to be confidential.2 Thus, the person opposing the privilege has the burden of persuading the judge that the communication was not made in confidence.

The presence of third persons to further the interests of the victim in the consultation does not strip the information of its confidential nature. Spouses, parents, and others the victim needs in consulting the counselor may be present.

Confidential communications are not limited to those that take place between the victim and the counselor. They can also embrace communications made to third persons who serve as conduits for the communication from the victim to the counselor. Examples include revelations by the victim to others whom the counselor wishes to use in counseling the victim. These disclosures are protected because they are reasonably necessary for accomplishing the purposes for which the counselor is consulted.

As the holder of the privilege, the domestic violence victim, whether or not a party, has a privilege to refuse to disclose or to prevent another from disclosing a confidential communication between the victim and the domestic violence counselor. The counselor has the right as well as the obligation to claim the privilege if present when disclosure of the communication is sought.

The court in the exercise of its discretion may compel disclosure of information received by a domestic violence counselor if certain conditions are satisfied. First, the judge must find that information received by the counselor "constitutes relevant evidence of the facts and circumstances involving a crime [which was] allegedly perpetrated against the victim or another household member and which is the subject of a criminal proceeding * * *." Second, the judge must find that the probative value of the evidence outweighs the prejudicial effects that disclosure of the information may have on the victim, the counseling relationship, and the counseling services. The judge may compel disclosure without the required balancing if the victim is dead or is not the complaining witness in a criminal action against the perpetrator.

In ruling on the claim of privilege, the judge may hold an in camera hearing in which disclosure of the privileged information may be compelled. If the judge determines that particular information may be subject to disclosure pursuant to the balancing test, the judge must follow a prescribed procedure before ordering the information disclosed. At the conclusion of the hearing the judge must determine which items of information should be disclosed.

The domestic violence victim-counselor privilege does not mandate the receipt of the evidence. Whether the evidence is admissible depends on the rules of evidence. Moreover, the privilege does not limit any obligation to report instances of child abuse required by the Penal Code.

The proposed Federal Rules of Evidence do not have an equivalent provision.

§ 5.10 Human Trafficking Caseworker–Victim Privilege

CALIFORNIA EVIDENCE CODE

§ 1038. Privilege

(a) A trafficking victim, whether or not a party to the action, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between the victim and a human trafficking caseworker if the privilege is claimed by any of the following persons:

(1) The holder of the privilege.

(2) A person who is authorized to claim the privilege by the holder of the privilege.

(3) The person who was the human trafficking caseworker at the time of the confidential communication. However, that person may not claim the privilege if there is no holder of the privilege in existence or if he or she is otherwise instructed by a person authorized to permit disclosure. The human trafficking caseworker who received or made a communication subject to the privilege granted by this article shall claim the privilege whenever he or she is present when the communication is sought to be disclosed and he or she is authorized to claim the privilege under this section.

(b) A human trafficking caseworker shall inform a trafficking victim of any applicable limitations on confidentiality of communications between the victim and the caseworker. This information may be given orally.

§ 1038.1. Compulsion of disclosure by court

(a) The court may compel disclosure of information received by a human trafficking caseworker that constitutes relevant evidence of the facts and circumstances involving a crime allegedly perpetrated against the victim and that is the subject of a criminal proceeding, if the court determines that the probative value of the information outweighs the effect of disclosure of the information on the victim, the counseling relationship, and the counseling services. The court may compel disclosure if the victim is either dead or not the complaining witness in a criminal action against the perpetrator.

(b) When a court rules on a claim of privilege under this article, it may require the person from whom disclosure is sought or the person authorized to claim the privilege, or both, to disclose the information in chambers out of the presence and hearing of all persons except the person authorized to claim the privilege and those other persons that the person authorized to claim the privilege consents to have present.

(c) If the judge determines that the information is privileged and shall not be disclosed, neither he nor she nor any other person may disclose, without the consent of a person authorized to permit disclosure, any information disclosed in the course of the proceedings in chambers. If the court determines that information shall be disclosed, the court shall so order and inform the defendant in the criminal action. If the court finds there is a reasonable likelihood that any information is subject to disclosure pursuant to the balancing test provided in this section, the procedure specified in paragraphs (1), (2), and (3) of Section 1035.4 shall be followed.

§ 1038.2. Definitions

(a) As used in this article, "victim" means any person who is a "trafficking victim" as defined in Section 236.1.

(b) As used in this article, "human trafficking caseworker" means any of the following:

(1) A person who is employed by any organization providing the programs specified in Section 18294 of the Welfare and Institutions Code, whether financially compensated or not, for the purpose of rendering advice or assistance to victims of human trafficking, who has received specialized training in the counseling of human trafficking victims, and who meets one of the following requirements:

(A) Has a master's degree in counseling or a related field; or has one year of counseling experience, at least six months of which is in the counseling of human trafficking victims.

(B) Has at least 40 hours of training as specified in this paragraph and is supervised by an individual who qualifies as a counselor under subparagraph (A), or is a psychotherapist, as defined in Section 1010. The training, supervised by a person qualified under subparagraph (A), shall include, but need not be limited to, the following areas: history of human trafficking, civil and criminal law as it relates to human trafficking, societal attitudes towards human trafficking, peer counseling techniques, housing, public assistance and other financial resources available to meet the financial needs of human trafficking victims, and referral services available to human trafficking victims. A portion of this training must include an explanation of privileged communication.

(2) A person who is employed by any organization providing the programs specified in Section 13835.2 of the Penal Code, whether financially compensated or not, for the purpose of counseling and assisting human trafficking victims, and who meets one of the following requirements:

(A) Is a psychotherapist as defined in Section 1010, has a master's degree in counseling or a related field, or has one year of counseling experience, at least six months of which is in rape assault counseling.

(B) Has the minimum training for human trafficking counseling required by guidelines established by the employing agency pursuant to subdivision (c) of Section 13835.10 of the Penal Code, and is supervised by an individual who qualifies as a counselor under subparagraph (A). The training, supervised by a person qualified under subparagraph (A), shall include, but not be limited to, law, victimology, counseling techniques, client and system advocacy, and referral services. A portion of this training must include an explanation of privileged communication.

(c) As used in this article, "confidential communication" means information transmitted between the victim and the caseworker in the course of their relationship and in confidence by a means which, so far as the victim is aware, discloses the information to no third persons other than those who are present to further the interests of the victim in the consultation or those to whom disclosures are reasonably necessary for the transmission of the information or an accomplishment of the purposes for which the human trafficking counselor is consulted. It includes all information regarding the facts and circumstances involving all incidences of human trafficking.

(d) As used in this article, "holder of the privilege" means the victim when he or she has no guardian or conservator, or a guardian or conservator of the victim when the victim has a guardian or conservator.

<EN>---

Comparative Note. Under the Code, a trafficking victim, whether or not a party to the action, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between the victim and a human trafficking caseworker.

A "victim" means any person who is a "trafficking victim" as defined in California Penal Code § 236.1. This section punishes any person who deprives or violates the personal liberty of another with the intent to effect or maintain a felony violation of enumerated offenses, including prostitution, or to obtain forced labor or services.

A human trafficking caseworker is defined as a person who is employed by any organization providing the programs specified in § 18294 of the Welfare and Institutions Code, whether financially compensated or not, for the purpose of rendering advice or assistance to victims of human trafficking, who has received specialized training in the counseling of human trafficking victims, and who meets at least one additional enumerated criterion.

A "confidential communication" is defined as information transmitted between the victim and the caseworker in the course of their relationship and in confidence by a means which, so far as the victim is aware, discloses the information to no third persons other than those who are present to further the interests of the victim in the consultation or those to whom disclosures are reasonably necessary for the transmission of the information or an accomplishment of the purposes for which the human trafficking counselor is consulted. It includes all information regarding the facts and circumstances involving all incidences of human trafficking.

As the holder of the privilege, a trafficking victim, whether or not a party to the action, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between the victim and a human trafficking caseworker. The human trafficking caseworker who received or made a communication subject to the privilege has the obligation to claim the privilege whenever he or she is present when the communication is sought to be disclosed and he or she is authorized to claim the privilege.

The court may compel disclosure of information received by a human trafficking caseworker if it constitutes relevant evidence of the facts and circumstances involving a crime allegedly perpetrated against the victim and is the subject of a criminal proceeding, provided the court determines that the probative value of the information outweighs the effect of disclosure of the information on the victim, the counseling relationship, and the counseling services. In ruling on the claim of privilege, the judge may hold an in camera hearing in which disclosure of the privileged information may be compelled. If the judge determines that particular information may be subject to disclosure pursuant to the balancing test, the judge must follow a prescribed procedure before ordering the information disclosed. At the conclusion of the hearing the judge must determine which items of information should be disclosed.

The proposed Federal Rules of Evidence do not contain an equivalent privilege.

§ 5.11 Privilege for Official Information

CALIFORNIA EVIDENCE CODE

§ 1040. Privilege for official information

(a) As used in this section, "official information" means information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.

(b) A public entity has a privilege to refuse to disclose official information, and to prevent another from disclosing official information, if the privilege is claimed by a person authorized by the public entity to do so and:

(1) Disclosure is forbidden by an act of the Congress of the United States or a statute of this state; or

(2) Disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice; but no privilege may be claimed under this paragraph if any person authorized to do so has consented that the information be disclosed in the proceeding. In determining whether disclosure of the information is against the public interest, the interest of the public entity as a party in the outcome of the proceeding may not be considered.

(c) Notwithstanding any other provision of law, the Employment Development Department shall disclose to law enforcement agencies, in accordance with the provisions of subdivision (k) of Section 1095 and subdivision (b) of Section 2714 of the Unemployment Insurance Code, information in its possession relating to any person if an arrest warrant has been issued for the person for commission of a felony.

<EN>---

FEDERAL RULES OF EVIDENCE

RULE 509. SECRETS OF STATE AND OTHER OFFICIAL INFORMATION <FONT>[NOT ENACTED]</FONT>

(a) Definitions.

(1) Secret of state. A "secret of state" is a governmental secret relating to the national defense or the international relations of the United States.

(2) Official information. "Official information" is information within the custody or control of a department or agency of the government the disclosure of which is shown to be contrary to the public interest and which consists of: (A) intragovernmental opinions or recommendations submitted for consideration in the performance of decisional or policymaking functions, or (B) subject to the provisions of 18 U.S.C. § 3500, investigatory files compiled for law enforcement purposes and not otherwise available, or (C) information within the custody or control of a governmental department or agency whether initiated within the department or agency or acquired by it in its exercise of its official responsibilities and not otherwise available to the public pursuant to 5 U.S.C. § 552.

(b) General rule of privilege. The government has a privilege to refuse to give evidence and to prevent any person from giving evidence upon a showing of reasonable likelihood of danger that the evidence will disclose a secret of state or official information, as defined in this rule.

(c) Procedures. The privilege for secrets of state may be claimed only by the chief officer of the government agency or department administering the subject matter which the secret information sought concerns, but the privilege for official information may be asserted by any attorney representing the government. The required showing may be made in whole or in part in the form of a written statement. The judge may hear the matter in chambers, but all counsel are entitled to inspect the claim and showing and to be heard thereon, except that, in the case of secrets of state, the judge upon motion of the government, may permit the government to make the required showing in the above form in camera. If the judge sustains the privilege upon a showing in camera, the entire text of the government's statements shall be sealed and preserved in the court's records in the event of appeal. In the case of privilege claimed for official information the court may require examination in camera of the information itself. The judge may take any protective measure which the interests of the government and the furtherance of justice may require.

(d) Notice to government. If the circumstances of the case indicate a substantial possibility that a claim of privilege would be appropriate but has not been made because of oversight or lack of knowledge, the judge shall give or cause notice to be given to the officer entitled to claim the privilege and shall stay further proceedings a reasonable time to afford opportunity to assert a claim of privilege.

(e) Effect of sustaining claim. If a claim of privilege is sustained in a proceeding to which the government is a party and it appears that another party is thereby deprived of material evidence, the judge shall make any further orders which the interests of justice require, including striking the testimony of a witness, declaring a mistrial, finding against the government upon an issue as to which the evidence is relevant, or dismissing the action.

<EN>---

Comparative Note. None.

§ 5.12 Privilege for the Identity of Informer

CALIFORNIA EVIDENCE CODE

§ 1041. Privilege for identity of informer

(a) Except as provided in this section, a public entity has a privilege to refuse to disclose the identity of a person who has furnished information as provided in subdivision (b) purporting to disclose a violation of a law of the United States or of this state or of a public entity in this state, and to prevent another from disclosing such identity, if the privilege is claimed by a person authorized by the public entity to do so and:

(1) Disclosure is forbidden by an act of the Congress of the United States or a statute of this state; or

(2) Disclosure of the identity of the informer is against the public interest because there is a necessity for preserving the confidentiality of his identity that outweighs the necessity for disclosure in the interest of justice; but no privilege may be claimed under this paragraph if any person authorized to do so has consented that the identity of the informer be disclosed in the proceeding. In determining whether disclosure of the identity of the informer is against the public interest, the interest of the public entity as a party in the outcome of the proceeding may not be considered.

(b) This section applies only if the information is furnished in confidence by the informer to:

(1) A law enforcement officer;

(2) A representative of an administrative agency charged with the administration or enforcement of the law alleged to be violated; or

(3) Any person for the purpose of transmittal to a person listed in paragraph (1) or (2).

(c) There is no privilege under this section to prevent the informer from disclosing his identity.

<EN>---

FEDERAL RULES OF EVIDENCE

RULE 510. IDENTITY OF INFORMER <FONT>[NOT ENACTED]</FONT>

(a) Rule of privilege. The government or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation.

(b) Who may claim. The privilege may be claimed by an appropriate representative of the government, regardless of whether the information was furnished to an officer of the government or of a state or subdivision thereof. The privilege may be claimed by an appropriate representative of a state or subdivision if the information was furnished to an officer thereof, except that in criminal cases the privilege shall not be allowed if the government objects.

(c) Exceptions.

(1) Voluntary disclosure; informer a witness. No privilege exists under this rule if the identity of the informer or his interest in the subject matter of his communication has been disclosed to those who would have cause to resent the communication by a holder of the privilege or by the informer's own action, or if the informer appears as a witness for the government.

(2) Testimony on merits. If it appears from the evidence in the case or from other showing by a party that an informer may be able to give testimony necessary to a fair determination of the issue of guilt or innocence in a criminal case or of a material issue on the merits in a civil case to which the government is a party, and the government invokes the privilege, the judge shall give the government an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony. The showing will ordinarily be in the form of affidavits, but the judge may direct that testimony be taken if he finds that the matter cannot be resolved satisfactorily upon affidavit. If the judge finds that there is a reasonable probability that the informer can give the testimony, and the government elects not to disclose his identity, the judge on motion of the defendant in a criminal case shall dismiss the charges to which the testimony would relate, and the judge may do so on his own motion. In civil cases, he may make any order that justice requires. Evidence submitted to the judge shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the government. All counsel and parties shall be permitted to be present at every stage of proceedings under this subdivision except a showing in camera, at which no counsel or party shall be permitted to be present.

(3) Legality of obtaining evidence. If information from an informer is relied upon to establish the legality of the means by which evidence was obtained and the judge is not satisfied that the information was received from an informer reasonably believed to be reliable or credible, he may require the identity of the informer to be disclosed. The judge shall, on request of the government, direct that the disclosure be made in camera. All counsel and parties concerned with the issue of legality shall be permitted to be present at every stage of proceedings under this subdivision except a disclosure in camera, at which no counsel or party shall be permitted to be present. If disclosure of the identity of the informer is made in camera, the record thereof shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the government.

<EN>---

Comparative Note. None.

§ 5.13 Secrecy of Vote

CALIFORNIA EVIDENCE CODE

§ 1050. Privilege to protect secrecy of vote

If he claims the privilege, a person has a privilege to refuse to disclose the tenor of his vote at a public election where the voting is by secret ballot unless he voted illegally or he previously made an unprivileged disclosure of the tenor of his vote.

<EN>---

FEDERAL RULES OF EVIDENCE

RULE 507. POLITICAL VOTE <FONT>[NOT ENACTED]</FONT>

Every person has a privilege to refuse to disclose the tenor of his vote at a political election conducted by secret ballot unless the vote was cast illegally.

<EN>---

Comparative Note. None.

§ 5.14 Trade Secrets

CALIFORNIA EVIDENCE CODE

§ 1060. Privilege to protect trade secret

If he or his agent or employee claims the privilege, the owner of a trade secret has a privilege to refuse to disclose the secret, and to prevent another from disclosing it, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice.

§ 1061. Procedure for assertion of trade secret privilege

(a) For purposes of this section, and Sections 1062 and 1063:

(1) "Trade secret" means "trade secret," as defined in subdivision (d) of Section 3426.1 of the Civil Code, or paragraph (9) of subdivision (a) of Section 499c of the Penal Code.

(2) "Article" means "article," as defined in paragraph (2) of subdivision (a) of Section 499c of the Penal Code.

(b) In addition to Section 1062, the following procedure shall apply whenever the owner of a trade secret wishes to assert his or her trade secret privilege, as provided in Section 1060, during a criminal proceeding:

(1) The owner of the trade secret shall file a motion for a protective order, or the people may file the motion on the owner's behalf and with the owner's permission. The motion shall include an affidavit based upon personal knowledge listing the affiant's qualifications to give an opinion concerning the trade secret at issue, identifying, without revealing, the alleged trade secret and articles which disclose the secret, and presenting evidence that the secret qualifies as a trade secret under either subdivision (d) of Section 3426.1 of the Civil Code or paragraph (9) of subdivision (a) of Section 499c of the Penal Code. The motion and affidavit shall be served on all parties in the proceeding.

(2) Any party in the proceeding may oppose the request for the protective order by submitting affidavits based upon the affiant's personal knowledge. The affidavits shall be filed under seal, but shall be provided to the owner of the trade secret and to all parties in the proceeding. Neither the owner of the trade secret nor any party in the proceeding may disclose the affidavit to persons other than to counsel of record without prior court approval.

(3) The movant shall, by a preponderance of the evidence, show that the issuance of a protective order is proper. The court may rule on the request without holding an evidentiary hearing. However, in its discretion, the court may choose to hold an in camera evidentiary hearing concerning disputed articles with only the owner of the trade secret, the people's representative, the defendant, and defendant's counsel present. If the court holds such a hearing, the parties' right to examine witnesses shall not be used to obtain discovery, but shall be directed solely toward the question of whether the alleged trade secret qualifies for protection.

(4) If the court finds that a trade secret may be disclosed during any criminal proceeding unless a protective order is issued and that the issuance of a protective order would not conceal a fraud or work an injustice, the court shall issue a protective order limiting the use and dissemination of the trade secret, including, but not limited to, articles disclosing that secret. The protective order may, in the court's discretion, include the following provisions:

(A) That the trade secret may be disseminated only to counsel for the parties, including their associate attorneys, paralegals, and investigators, and to law enforcement officials or clerical officials.

(B) That the defendant may view the secret only in the presence of his or her counsel, or if not in the presence of his or her counsel, at counsel's offices.

(C) That any party seeking to show the trade secret, or articles containing the trade secret, to any person not designated by the protective order shall first obtain court approval to do so:

(i) The court may require that the person receiving the trade secret do so only in the presence of counsel for the party requesting approval.

(ii) The court may require the person receiving the trade secret to sign a copy of the protective order and to agree to be bound by its terms. The order may include a provision recognizing the owner of the trade secret to be a third-party beneficiary of that agreement.

(iii) The court may require a party seeking disclosure to an expert to provide that expert's name, employment history, and any other relevant information to the court for examination. The court shall accept that information under seal, and the information shall not be disclosed by any court except upon termination of the action and upon a showing of good cause to believe the secret has been disseminated by a court-approved expert. The court shall evaluate the expert and determine whether the expert poses a discernible risk of disclosure. The court shall withhold approval if the expert's economic interests place the expert in a competitive position with the victim, unless no other experts are available. The court may interview the expert in camera in aid of its ruling. If the court rejects the expert, it shall state its reasons for doing so on the record and a transcript of those reasons shall be prepared and sealed.

(D) That no articles disclosing the trade secret shall be filed or otherwise made a part of the court record available to the public without approval of the court and prior notice to the owner of the secret. The owner of the secret may give either party permission to accept the notice on the owner's behalf.

(E) Other orders as the court deems necessary to protect the integrity of the trade secret.

(c) A ruling granting or denying a motion for a protective order filed pursuant to subdivision (b) shall not be construed as a determination that the alleged trade secret is or is not a trade secret as defined by subdivision (d) of Section 3426.1 of the Civil Code or paragraph (9) of subdivision (a) of Section 499c of the Penal Code. Such a ruling shall not have any effect on any civil litigation.

(d) This section shall have prospective effect only and shall not operate to invalidate previously entered protective orders.

§ 1062. Exclusion of public from criminal proceeding; motion; contents; hearing; determination

(a) Notwithstanding any other provision of law, in a criminal case, the court, upon motion of the owner of a trade secret, or upon motion by the People with the consent of the owner, may exclude the public from any portion of a criminal proceeding where the proponent of closure has demonstrated a substantial probability that the trade secret would otherwise be disclosed to the public during that proceeding and a substantial probability that the disclosure would cause serious harm to the owner of the secret, and where the court finds that there is no overriding public interest in an open proceeding. No evidence, however, shall be excluded during a criminal proceeding pursuant to this section if it would conceal a fraud, work an injustice, or deprive the People or the defendant of a fair trial.

(b) The motion made pursuant to subdivision (a) shall identify, without revealing, the trade secrets which would otherwise be disclosed to the public. A showing made pursuant to subdivision (a) shall be made during an in camera hearing with only the owner of the trade secret, the People's representative, the defendant, and defendant's counsel present. A court reporter shall be present during the hearing. Any transcription of the proceedings at the in camera hearing, as well as any articles presented at that hearing, shall be ordered sealed by the court and only a court may allow access to its contents upon a showing of good cause. The court, in ruling upon the motion made pursuant to subdivision (a), may consider testimony presented or affidavits filed in any proceeding held in that action.

(c) If, after the in camera hearing described in subdivision (b), the court determines that exclusion of trade secret information from the public is appropriate, the court shall close only that portion of the criminal proceeding necessary to prevent disclosure of the trade secret. Before granting the motion, however, the court shall find and state for the record that the moving party has met its burden pursuant to subdivision (b), and that the closure of that portion of the proceeding will not deprive the People or the defendant of a fair trial.

(d) The owner of the trade secret, the People, or the defendant may seek relief from a ruling denying or granting closure by petitioning a higher court for extraordinary relief.

(e) Whenever the court closes a portion of a criminal proceeding pursuant to this section, a transcript of that closed proceeding shall be made available to the public as soon as practicable. The court shall redact any information qualifying as a trade secret before making that transcript available.

(f) The court, subject to Section 867 of the Penal Code, may allow witnesses who are bound by a protective order entered in the criminal proceeding protecting trade secrets, pursuant to Section 1061, to remain within the courtroom during the closed portion of the proceeding.

<EN>---

FEDERAL RULES OF EVIDENCE

RULE 508. TRADE SECRETS <FONT>[NOT ENACTED]</FONT>

A person has a privilege, which may be claimed by him or his agent or employee, to refuse to disclose and to prevent other persons from disclosing a trade secret owned by him, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice. When disclosure is directed, the judge shall take such protective measure as the interests of the holder of the privilege and of the parties and the furtherance of justice may require.

<EN>---

Comparative Note. None.

§ 5.15 Applicability of Privileges

CALIFORNIA EVIDENCE CODE

§ 901. Proceeding

"Proceeding" means any action, hearing, investigation, inquest, or inquiry (whether conducted by a court, administrative agency, hearing officer, arbitrator, legislative body, or any other person authorized by law) in which, pursuant to law, testimony can be compelled to be given.

§ 910. Applicability of division

Except as otherwise provided by statute, the provisions of this division apply in all proceedings. The provisions of any statute making rules of evidence inapplicable in particular proceedings, or limiting the applicability of rules of evidence in particular proceedings, do not make this division inapplicable to such proceedings.

<EN>---

Comparative Note. The California privileges apply in all proceedings in which testimony can be compelled.

§ 5.16 Waiver of Privileges

CALIFORNIA EVIDENCE CODE

§ 912. Waiver of privilege

(a) Except as otherwise provided in this section, the right of any person to claim a privilege provided by Section 954 (lawyer-client privilege), 980 (privilege for confidential marital communications), 994 (physician-patient privilege), 1014 (psychotherapist-patient privilege), 1033 (privilege of penitent), 1034 (privilege of clergyman), 1035.8 (sexual assault counselor-victim privilege), or 1037.5 (domestic violence counselor-victim privilege) is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone. Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has the legal standing and opportunity to claim the privilege.

(b) Where two or more persons are joint holders of a privilege provided by Section 954 (lawyer-client privilege), 994 (physician-patient privilege), 1014 (psychotherapist-patient privilege), 1035.8 (sexual assault counselor-victim privilege), or 1037.5 (domestic violence counselor-victim privilege), a waiver of the right of a particular joint holder of the privilege to claim the privilege does not affect the right of another joint holder to claim the privilege. In the case of the privilege provided by Section 980 (privilege for confidential marital communications), a waiver of the right of one spouse to claim the privilege does not affect the right of the other spouse to claim the privilege.

(c) A disclosure that is itself privileged is not a waiver of any privilege.

(d) A disclosure in confidence of a communication that is protected by a privilege provided by Section 954 (lawyer-client privilege), 994 (physician-patient privilege), 1014 (psychotherapist-patient privilege), 1035.8 (sexual assault counselor-victim privilege), or 1037.5 (domestic violence counselor-victim privilege), when disclosure is reasonably necessary for the accomplishment of the purpose for which the lawyer, physician, psychotherapist, sexual assault counselor, or domestic violence counselor was consulted, is not a waiver of the privilege.

<EN>---

FEDERAL RULES OF EVIDENCE

RULE 511. WAIVER OF PRIVILEGE BY VOLUNTARY DISCLOSURE <FONT>[NOT ENACTED]</FONT>

A person upon whom these rules confer a privilege against disclosure of the confidential matter or communication waives the privilege if he or his predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the matter or communication. This rule does not apply if the disclosure is itself a privileged communication.

<EN>---

Comparative Note. The California waiver provision is discussed in connection with each of the privileges enumerated in the waiver section. The general rule is that waiver will occur when a privilege holder, without coercion, discloses or consents to disclosure of a significant part of the privileged communication.

§ 5.17 Commenting on Privileges

CALIFORNIA EVIDENCE CODE

§ 913. Comment on, and inferences from, exercise of privilege

(a) If in the instant proceeding or on a prior occasion a privilege is or was exercised not to testify with respect to any matter, or to refuse to disclose or to prevent another from disclosing any matter, neither the presiding officer nor counsel may comment thereon, no presumption shall arise because of the exercise of the privilege, and the trier of fact may not draw any inference therefrom as to the credibility of the witness or as to any matter at issue in the proceeding.

(b) The court, at the request of a party who may be adversely affected because an unfavorable inference may be drawn by the jury because a privilege has been exercised, shall instruct the jury that no presumption arises because of the exercise of the privilege and that the jury may not draw any inference therefrom as to the credibility of the witness or as to any matter at issue in the proceeding.

<EN>---

FEDERAL RULES OF EVIDENCE

RULE 513. COMMENT UPON OR INFERENCE FROM CLAIM OF PRIVILEGE; INSTRUCTION <FONT>[NOT ENACTED]</FONT>

(a) Comment or inference not permitted. The claim of a privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel. No inference may be drawn therefrom.

(b) Claiming privilege without knowledge of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.

(c) Jury instruction. Upon request, any party against whom the jury might draw an adverse inference from a claim of privilege is entitled to an instruction that no inference may be drawn therefrom.

<EN>---

Comparative Note. If judges and parties were permitted to comment on the exercise of a privilege and if jurors were permitted to draw adverse inferences from the its exercise, a party would be under great pressure to forego claiming the privilege, and its protection would be largely lost. Accordingly, the Code prohibits any comment on the exercise of a privilege as well as the drawing of any adverse inference from its exercise. Moreover, the Code provides that, upon request, the court must instruct the jurors not to draw any adverse inferences from the exercise of the privilege.

§ 5.18 Erroneously Compelled Disclosures

CALIFORNIA EVIDENCE CODE

§ 919. Admissibility where disclosure erroneously compelled; claim of privilege; coercion

(a) Evidence of a statement or other disclosure of privileged information is inadmissible against a holder of the privilege if:

(1) A person authorized to claim the privilege claimed it but nevertheless disclosure erroneously was required to be made; or

(2) The presiding officer did not exclude the privileged information as required by Section 916.

(b) If a person authorized to claim the privilege claimed it, whether in the same or a prior proceeding, but nevertheless disclosure erroneously was required by the presiding officer to be made, neither the failure to refuse to disclose nor the failure to seek review of the order of the presiding officer requiring disclosure indicates consent to the disclosure or constitutes a waiver and, under these circumstances, the disclosure is one made under coercion.

<EN>---

FEDERAL RULES OF EVIDENCE

RULE 512. PRIVILEGED MATTER DISCLOSED UNDER COMPULSION OR WITHOUT OPPORTUNITY TO CLAIM PRIVILEGE <FONT>[NOT ENACTED]</FONT>

Evidence of a statement or other disclosure of privileged matter is not admissible against the holder of the privilege if the disclosure was (a) compelled erroneously or (b) made without opportunity to claim the privilege.

<EN>---

Comparative Note. Under the Code, if a judge erroneously overrules a privilege claim and compels disclosure of the privileged information, the person authorized to claim the privilege may still assert the privilege in a subsequent proceeding. Erroneously coerced disclosures do not operate as a waiver; evidence of the erroneous disclosure is therefore inadmissible. Moreover, neither the failure to resist an erroneous order to disclose privileged information nor the failure to seek review of the order constitutes a waiver of the privilege. The person authorized to claim the privilege may still claim it in a later stage of the same proceeding or in a subsequent proceeding.

Sometimes, no party to a proceeding is authorized to claim a privilege and the person from whom the information is sought is likewise not authorized to claim the privilege. In these circumstances, the Code requires a court on its own motion or the motion of any party, to exclude the privileged matter. If the judge fails to do so, the person authorized to claim the privilege may still claim it in a subsequent proceeding.

The Code requires lawyers, physicians, psychotherapists, sexual assault counselors, domestic assault counselors, and human trafficking caseworkers to claim the privilege on behalf of their clients or patients if present when disclosure of the privileged communication is sought. If the holder is not present, their failure to claim the privilege will not preclude the holder from claiming the privilege in a subsequent proceeding. Neither will their failure excuse the court's obligation to exclude the privileged information on its own motion or the motion of any party.