Evidentiary Privileges in California Criminal Law

An “evidentiary privilege” is the right to

  • Refuse to testify in court or disclose certain information in a court case, or
  • Prevent someone else from testifying against you or disclosing certain information.1

There are several important California evidentiary privileges that could make a difference in a California criminal jury trial, such as

  • The privilege against self-incrimination (i.e., the right not to testify in your own criminal case),2
  • The lawyer-client privilege (also known as the attorney-client privilege),3
  • The spousal privilege (i.e., the right not to testify against your husband or wife, and the right to prevent confidential marital communications from being disclosed),4
  • The psychotherapist-patient privilege5--which does not apply if you are asserting the California insanity defense or claiming that you are not competent to stand trial,6
  • The penitent-clergy privilege,7
  • The sexual assault counselor privilege,8 and
  • The domestic violence counselor privilege.9
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Examples

Here are some examples of how these evidentiary privileges might work in California criminal cases:

  • A defendant in a California DUI case, who has never been arrested before, hires a criminal defense attorney. The defendant did drive drunk but is afraid to admit this to his attorney. The attorney assures him that—because of the attorney-client evidentiary privilege—everything he tells him will be confidential and cannot be disclosed or used against him in this criminal case.
  • A defendant is charged with California murder. The prosecutor suspects that the defendant's wife may know something about the crime. But the prosecutor may not call the wife as a witness against her husband, because of the spousal privilege.
  • A defendant is charged with California rape, but his accuser is lying. He thinks that he may be able to expose her lies by pointing out discrepancies between what she may have told sexual assault counselor at a help center, and what she told the cops. But he cannot call the sexual assault counselor as a witness, because of the sexual assault counselor privilege.

In order to help you better understand California evidentiary privileges, our California criminal defense attorneys10 will address the following:

1. California Evidence Rules on Witnesses and Subpoenas

2. California Evidentiary Privileges

2.1. Privilege against self-incrimination
2.2. Lawyer-client privilege
2.3. Spousal privilege
2.3.1. Testimonial privilege
2.3.2. Confidential marital communications
2.4. Psychotherapist-patient privilege
2.5. Penitent-clergy privilege
2.6. Sexual assault counselor privilege
2.7. Domestic violence counselor privilege

3. Evidentiary Privilege Waiver

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. California Evidence Rules on Witnesses and Subpoenas

In order to understand how evidentiary privileges work in California, a person must first understand these important California rules of evidence:

  1. Anyone who is called to be a witness must testify.
  2. When faced with a court subpoena, in most cases you must produce the thing or the information that is being subpoenaed.
  3. No one has the right to prevent another person from testifying or from disclosing anything under a subpoena.11

But these rules are true only as a general matter. Evidentiary privileges are exceptions to these rules.

In other words, if a person or information is protected by an evidentiary privilege, then that person doesn't have to testify—or that information doesn't have to be disclosed.12

2. California Evidentiary Privileges

The California Evidence Code sets out a long list of evidentiary privileges. Here, we discuss the ones that are most likely to be relevant to a criminal defendant.

2.1. Privilege against self-incrimination

The privilege against self-incrimination means that—if you are charged with a crime—you cannot be forced to testify at your own trial.13

This evidentiary privilege is connected to rights that are set forth in the Fifth Amendment to the U.S. Constitution, and Section 15 of the California Constitution.14

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It also means that you can't be forced to discuss anything with police or prosecutors.15 In this way, the privilege against self-incrimination is closely tied up with the “right to remain silent” that you hear about in Miranda warnings.

Example: Al is accused of breaking into a woman's hotel room and raping her. The police find him hiding in a toolshed near the hotel. He is arrested and charged with California burglary and rape.

But Al claims the woman invited him into her room and had consensual sex with him. He also claims that he was hiding in the toolshed because he was scared of being attacked by the woman's boyfriend.

At Al's trial, the prosecutor questions him about why he didn't tell that story—that he was hiding from the boyfriend—to the police when they found him in the toolshed.

But the privilege against self-incrimination means that the prosecutor may not use Al's silence with the police against him in this way. That line of questioning leads to Al's conviction being overturned.16

2.2. Lawyer-client privilege

Simply put, the lawyer-client privilege—set forth in Evidence Code sections 950 et seq.—means that you have the right both

  • not to disclose, and
  • to prevent your lawyer from disclosing,

any confidential information you reveal to him/her in the course of your attorney-client relationship.17

In addition, your attorney must refuse to disclose any information to which the privilege would apply.18

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This evidentiary privilege applies to any communication you have with a lawyer if you have contacted him/her for the purpose of retaining him/her or receiving any legal services or advice. You don't need to have actually hired him/her as your lawyer—or paid him/her—yet.19

Example: Sheldon has just learned that he is being investigated for auto insurance fraud. He wants to hire a good lawyer to help him and decides to interview several firms. During his interviews, he discloses to the lawyers some important facts about the events related to the alleged fraud.

All of this communication is subject to the attorney-client privilege. Thus, the lawyers cannot be called to testify about anything Sheldon has told them—even the ones he chooses not to hire.

Exceptions to attorney-client privilege

But there are two important exceptions to the attorney-client privilege.

First, it does not apply if the criminal defendant sought out or used the services of the lawyer in order to enable him/her (or anyone else) to commit a crime or a fraud.20

Example: Let's return to Sheldon from our example above. Say that—instead of interviewing lawyers to represent him in an investigation for auto insurance fraud—he is looking for a lawyer who will give him advice about how to commit auto insurance fraud.

In this case, none of the communications he has with any of the attorneys will be privileged—and the attorneys must disclose or testify about these communications if they are called upon to do so.

Second, there is no lawyer-client privilege in situations where the lawyer reasonably believes that disclosure of confidential communication from his/her client is necessary to prevent a criminal act that that is likely to result in death or substantial bodily harm.21

Example: Paul, a California criminal defense attorney, represents Jason, who is being charged under California's gang sentencing enhancement law. At a meeting, Paul informs Jason that the prosecution will be calling Carlotta, a former criminal associate of Jason's, to the stand to testify against him.

It seems likely that Carlotta will be a star witness for the prosecution. But Jason tells Paul that they don't have to worry about Carlotta because “she'll never make it onto the witness stand.”

Jason's words make Paul think that Jason plans to have Carlotta killed or injured to prevent her from testifying. The attorney-client evidentiary privilege therefore won't prevent Paul from going to the prosecution to suggest that they arrange for some sort of protection for Carlotta—and disclosing what Jason said.

2.3. Spousal privilege/confidential marital communications

Another relationship that creates an evidentiary privilege in California law is the relationship between a married couple. This so-called spousal privilege has two elements.

2.3.1. Testimonial privilege

First, under the so-called spousal testimonial privilege, set forth in Evidence Code sections 970 and 971 EC, every married person has the privilege not to be called as a witness against his/her spouse in a criminal proceeding where the spouse is the defendant.22

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However, s/he may choose to testify if s/he wants to. In other words, you don't have the right to prevent your spouse from testifying against you.23

Example: Juan is charged with California grand theft in connection with the robbery of a jewelry store. His alibi defense is that he was with his wife Debra on the night the robbery occurred.

Debra chooses not to testify at his trial. This is her right under the California spousal privilege—and the prosecution may not call her to testify if she does not want to.

However, let's say Debra does decide to testify—and plans to testify that, in fact, Juan was not with her when the robbery occurred. She may do so, because the spousal privilege does not give Juan the right to prevent her from testifying.

The spousal testimonial privilege only applies to people who are currently married. Once you get divorced, the evidentiary privilege disappears—and you may be called to testify against your spouse.24

Exceptions to spousal testimonial privilege

The spousal testimonial privilege does not apply in every California criminal case. Specifically, it does not apply to cases where one spouse is charged with

  1. Any crime against the person or property of the other spouse or of a child, parent, relative, or cohabitant of either spouse,
  2. Any crime against the person or property of a third person that was committed in the course of a crime against the person or property of the other spouse,
  3. Bigamy, or
  4. Child neglect or spousal abandonment.25

Also, this evidentiary privilege does not apply in criminal cases where all of the following are true:

  1. The alleged crime occurred before the spouses got married,
  2. The spouse who is being called as a witness knew what s/he is being called to testify about before the marriage, and
  3. At the time of the marriage, the spouse being called as a witness knew that his/her spouse had been arrested for or charged with the alleged crime.26

According to Lancaster criminal defense attorney Neil Shouse27:

“There's a good reason why this exception to the spousal testimonial privilege exists. If it didn't, then two people who both knew about a criminal act could get married just to avoid having to testify against one another—basically, enter into a sham marriage so that they can claim this privilege.”

Example: Ezra is involved in marijuana sales and trafficking. His friend and roommate Kathy knows a great deal about his drug dealing activities. Then Ezra is arrested for this crime.

Ezra knows that Kathy is likely to be a prime witness against him, since most of his drug dealing took place in the apartment they share. Kathy does not want to testify against Ezra. So they discuss getting married so that Kathy will be able to claim the spousal testimonial privilege.

But because of this exception to the privilege, Kathy would have to testify against Ezra even if they did get married.

2.3.2. Confidential marital communications

Second, under the “confidential marital communications” privilege of Evidence Code 980 EC, every person who has ever been married has a privilege not to disclose any communication that was made in confidence between him/her and his/her husband or wife while they married.28

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Not only that—but unlike the testimonial privilege, this evidentiary privilege is held by both spouses. This means that a husband may prevent his wife from revealing confidential marital communications in court even if she wants to reveal them—and vice versa.29

Also, unlike the testimonial privilege, the confidential marital communications privilege applies even after the couple has gotten divorced—BUT it applies only to confidential communications that took place while they were married, not before or after.30

Example: Let's return to Ezra from the example above. Let's say he keeps his drug-dealing activities a secret from Kathy while they are merely roommates. He falls in love with her, and they get married.

Their marriage prompts Ezra to turn over a new leaf, and he stops selling drugs. But he doesn't feel right about keeping his past a secret from Kathy, so on their one-year anniversary he tells her—in confidence—that he used to deal drugs.

Then Ezra is arrested for his past drug dealing activity. Kathy divorces him shortly after he is arrested.

Thanks to the marital communications evidentiary privilege, Kathy cannot go to court and reveal what Ezra told her about his marijuana dealing while they were married—even if she wanted to.

There are exceptions to this evidentiary privilege as well. The confidential marital communications privilege does not apply to any communications that were made to enable or help anyone to commit or plan a crime or fraud.31

Also, this privilege does not apply when a criminal defendant who is one of the spouses chooses to reveal the confidential communications in his/her own criminal case.32

2.4. Psychotherapist-patient privilege

Another evidentiary privilege exists for confidential communications between a patient and his/her psychotherapist. The psychotherapist-patient privilege is described in Evidence Code 1014 EC.33

“Psychotherapist” refers to a variety of professions, including psychiatrists, licensed psychologists, clinical social workers, school psychologists, and marriage/family therapists.34

Psychotherapy

As is the case with the attorney-client privilege, the patient has the right both not to disclose the confidential communications, and to prevent anyone else (including the psychotherapist) from disclosing the confidential communications.35

In addition, the psychotherapist is required to keep the information confidential as long as the privilege exists.36

However, it's important to note that this privilege applies only to confidential communications between the patient and the therapist. In a nutshell, this means communications that the patient could reasonably assume would not be overheard by or divulged to third parties.37

Example: Clarence tells a marriage and family therapist about his tumultuous relationship with his violent, abusive father.

Clarence also writes a blog in which he discusses these same issues, often summarizing what he told the therapist at each appointment.

Because Clarence broadcasts the content of his therapy appointments to the world, those communications are not covered by the psychotherapist-patient privilege.

Exceptions to the psychotherapist-patient privilege

There are several important exceptions to this privilege, namely:

  1. The privilege does not apply in cases where the defendant chooses to make his/her mental condition an issue—by pleading not guilty by reason of insanity, or arguing that s/he is not competent to stand trial;38
  2. The privilege does not apply if the psychotherapist's services were sought or used to enable anyone to commit a crime, or escape being caught or arrested after committing a crime;39 and
  3. The privilege does not apply if the psychotherapist reasonably believes that the patient's mental condition makes him/her dangerous to him/her-self, to someone else, or to someone else's property.40
2.5. Penitent-clergy privilege

Confidential communications made to a priest, minister, rabbi, or other clergyperson are also privileged under the Evidence Code 1033 EC. Both the clergyperson and the person who shared confidential communication with him/her have the right to claim this privilege.41

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So, for example, anything you share with a priest during a Catholic confession, or with a minister or rabbi from whom you seek counseling or advice, is privileged and need not be disclosed in court.

2.6. Sexual-assault counselor privilege

There is an evidentiary privilege for confidential communications between a victim of sexual assault and a sexual assault counselor. The counselor may not reveal anything that s/he knows because of such communication.42

Sexual assault includes not only rape, but also various other California sex crimes such as Penal Code 262 PC spousal rape,Penal Code 288 PC lewd acts with a minor, and oral copulation by force or fear.43

2.7. Domestic violence counselor privilege

Finally, there is an evidentiary privilege for confidential communications between a victim of domestic violence and a domestic violence counselor. The counselor is required to keep all such communications secret.44

Example: Charles's ex-girlfriend Monique is accusing him of beating her. Charles is being charged with violating California's “domestic battery” law.

Charles knows that much of what Monique is alleging is not true. He also knows that she has visited a domestic violence victim service organization. Charles suspects that Monique has changed her story several times—and that she may have told the domestic violence counselor something different from what she eventually told the cops.

But because of the domestic violence counselor evidentiary privilege, Charles and his lawyer may not call the domestic violence counselor who counseled Monique to testify about what she told him.

3. Evidentiary Privilege Waiver

Any of the evidentiary privileges described above may be waived if the person who holds the privilege either

  • Discloses a significant part of the privileged communication, or
  • Consents to the disclosure of the privileged communication by anyone else.45

Example: Pierre wants to claim the clergy-penitent privilege for a discussion he had with the minister of his church about his role in a check fraud scheme. But it turns out that, with Pierre's permission, the minister used some of the things Pierre told him in a sermon. Pierre has therefore waived the privilege, and the minister may be called to testify about what Pierre told him.

Call us for help…

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If you or loved one is in need of help with evidentiary privileges and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Legal References:



1 Black's Law Dictionary (9th ed. 2009), privilege. (“3. An evidentiary rule that gives a witness the option to not disclose the fact asked for, even though it might be relevant; the right to prevent disclosure of certain information in court, esp. when the information was originally communicated in a professional or confidential relationship.”)

2 Evidence Code 940 EC – Privilege against self-incrimination. (“To the extent that such privilege exists under the Constitution of the United States or the State of California, a person has a privilege to refuse to disclose any matter that may tend to incriminate him.”)

See also Cal. Const., Art. I, § 15. (“Persons may not . . . be compelled in a criminal cause to be a witness against themselves [evidentiary privilege against self-incrimination] . . . .”)

3 Evidence Code 954 EC – Lawyer-client privilege. (“Subject to Section 912 and except as otherwise provided in this article, the client, whether or not a party, has a[n evidentiary] 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.”)

Evidence Code 955 EC – 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.”)

4 Evidence Code 970 EC – Spouse's privilege not to testify against spouse. (“Except as otherwise provided by statute, a married person has a privilege not to testify against his spouse in any proceeding.”)

Evidence Code 971 EC – 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[n evidentiary] 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.”)

Evidence Code 980 EC – 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.”)

5 Evidence Code 1014 EC – 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[n evidentiary] 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.”)

Evidence Code 1015 EC – 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.”)

6 Evidence Code 1016 EC – Exception [to the evidentiary privilege]: 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 376or 377 of the Code of Civil Procedure for damages for the injury or death of the patient.”)

Evidence Code 1023 EC – 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.”)

7 Evidence Code 1033 EC – [Evidentiary] 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.”)

Evidence Code 1034 EC – [Evidentiary] 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.”)

8 Evidence Code 1035.8 EC – Sexual assault counselor [evidentiary] 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 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 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.”)

Evidence Code 1036 EC – Claim of privilege by sexual assault counselor. (“The sexual assault 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.”)

9 Evidence Code 1037.5 EC – Privilege of refusal to disclose communication; claimants. (“A victim of domestic violence, whether or not a party to the action, has a[n evidentiary] 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.”)

Evidence Code 1037.6 EC – 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.”)

10 Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

11 Evidence Code 911 EC – 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.”)

12 Black's Law Dictionary (9th ed. 2009), privilege, endnote 1, above.

13 Evidence Code 940 EC – Privilege against self-incrimination, endnote 2, above.

14 U.S. Const., amend. V. (“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself [privilege against self-incrimination], nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”)

See also Cal. Const., Art. I, § 15, endnote 2, above.

15 See People v. Jacobs (1984) 158 Cal.App.3d 740, 750. (“We hold that under the circumstances of this case questioning appellant on cross-examination about his silence occurring both during and following his arrest violated appellant's privilege against self-incrimination under California Constitution, article I, section 15.”)

16 Based on the facts of the same.

17 Evidence Code 954 EC – Lawyer-client privilege, endnote 3, above.

18 Evidence Code 955 EC – When lawyer required to claim [evidentiary] privilege, endnote 3, above.

19 Evidence Code 951 EC – Client [for purposes of evidentiary privilege]. (“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.”)

20 Evidence Code 956 EC – Exception [to evidentiary privilege]: 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.”)

21 Evidence Code 956.5 EC – Exception [to evidentiary privilege]: Prevention of criminal act likely to result in death or substantial bodily harm. (“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.”)

22 Evidence Code 970 EC – Spouse's [evidentiary] privilege not to testify against spouse, endnote 4, above.

Evidence Code 971 EC – Privilege not to be called as a witness against spouse, endnote 4, above.

23 Evidence Code 970 EC, Law Revision Commission Comments. (“The privileges under this article are not as broad as the privilege provided by existing law. Under existing law, a married person has a privilege to prevent his spouse from testifying against him, but only the witness spouse has a privilege under this article.”)

24 Evidence Code 970 EC – Spouse's [evidentiary] privilege not to testify against spouse, endnote 4, above.

Evidence Code 971 EC – Privilege not to be called as a witness against spouse, endnote 4, above.

25 Evidence Code 972 EC – Exceptions to [evidentiary] privilege. (“A married person does not have a privilege under this article in: . . . (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.”)

26 See same. (“(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.”)

27 Our Lancaster criminal defense attorneys have conducted dozens of jury trials and juvenile adjudication hearings, defending everything from sex crimes to California firearms cases.

28 Evidence Code 980 EC – Confidential marital communication privilege, endnote 4, above.

29 See same.

30 Evidence Code 980 EC, Law Revision Commission Comments. (“The privilege may be claimed as to confidential communications made during a marriage even though the marriage has been terminated at the time the privilege is claimed. This states existing law.”)

31 Evidence Code 981 EC – Exception [to evidentiary privilege]: 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.”)

32 Evidence Code 987 EC – 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.”)

33 Evidence Code 1014 EC – Psychotherapist-patient [evidentiary] privilege; application to individuals and entities, endnote 5, above.

34 Evidence Code 1010 EC – Psychotherapist [for purposes of evidentiary privilege]. (“As used in this article, “psychotherapist” means a person who is, or is reasonably believed by the patient to be: (a) A person 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 and family therapist under Chapter 13 (commencing with Section 4980) of Division 2 of the Business and Professions Code. . . . .”)

35 Evidence Code 1014 EC – Psychotherapist-patient [evidentiary] privilege; application to individuals and entities, endnote 5, above.

36 Evidence Code 1015 EC – When psychotherapist required to claim [evidentiary] privilege, endnote 5, above.

37 Evidence Code 1012 EC – Confidential communication between patient and psychotherapist [for purposes of evidentiary privilege]. (“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.”)

38 Evidence Code 1016 EC – Exception [to the evidentiary privilege]: Patient-litigant exception, endnote 6, above.

Evidence Code 1023 EC – Exception: Proceeding to determine sanity of criminal defendant, endnote 6, above.

39 Evidence Code 1018 EC – Exception: Crime or tort. (“There is no [evidentiary] 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.”)

40 Evidence Code 1024 EC – Exception: Patient dangerous to himself or others. (“There is no [evidentiary] 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.”)

41 Evidence Code 1033 EC – [Evidentiary] privilege of penitent, endnote 7, above.

Evidence Code 1034 EC – [Evidentiary] privilege of clergy, endnote 7, above.

See also Evidence Code 1032 EC – 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.”)

42 Evidence Code 1035.8 EC – Sexual assault counselor [evidentiary] privilege, endnote 8, above.

Evidence Code 1036 EC – Claim of privilege by sexual assault counselor, endnote 8, above.

43 Evidence Code 1036.2 EC – Sexual assault [for purposes of evidentiary privilege]. (“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.”)

44 Evidence Code 1037.5 EC – Privilege of refusal to disclose communication; claimants, endnote 9, above.

Evidence Code 1037.6 EC – Claim of [evidentiary] privilege by counselor, endnote 9, above.

45 Evidence Code 912 EC – Waiver of [evidentiary] 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), 966 (lawyer referral service-client privilege), 980 (privilege for confidential marital communications), 994 (physician-patient privilege), 1014 (psychotherapist-patient privilege), 1033 (privilege of penitent), 1034 (privilege of clergy member), 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.”)

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