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
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:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
In order to understand how evidentiary privileges work in California, a person must first understand these important California rules of evidence:
- Anyone who is called to be a witness must testify.
- When faced with a court subpoena, in most cases you must produce the thing or the information that is being subpoenaed.
- 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
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.
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
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
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
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.
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.
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
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
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
- Any crime against the person or property of the other spouse or of a child, parent, relative, or cohabitant of either spouse,
- 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,
- Bigamy, or
- Child neglect or spousal abandonment.25
Also, this evidentiary privilege does not apply in criminal cases where all of the following are true:
- The alleged crime occurred before the spouses got married,
- The spouse who is being called as a witness knew what s/he is being called to testify about before the marriage, and
- 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.
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
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
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
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:
- 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
- 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
- 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
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
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.
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
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.
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.
For legal representation…
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.
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 i