Chapter 4 - §1. Overview

• Jurisdiction: United States

§1. Overview

§1.1. Source of privileges. The only privileges recognized in California are those provided by a statute or the constitution. See Evid. C. §§230, 911; Mitchell v. Superior Ct. (1984) 37 Cal.3d 268, 274 n.3; People v. Barefield (3d Dist.2021) 68 Cal.App.5th 890, 899; 7 Cal. Law Revision Comm'n Rep. (1965) p. 1153. As a general rule, no other privileges can be considered or created by the courts. See Evid. C. §911; Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 373; Duronslet v. Kamps (1st Dist.2012) 203 Cal.App.4th 717, 736; People v. Velasquez (5th Dist.1987) 192 Cal.App.3d 319, 327.

Federal Comparison
FRE 501 provides that the common law governs privilege claims unless the U.S. Constitution, a federal statute, or Supreme Court rules provide otherwise.

§1.2. Judicial interpretation. Because privileges impede on the court's objective of determining the truth, they should be construed narrowly and their exceptions expansively. See People v. Sinohui (2002) 28 Cal.4th 205, 212; People v. Barefield (3d Dist.2021) 68 Cal.App.5th 890, 900; Ford v. City of Los Angeles (2d Dist.2020) 47 Cal.App.5th 277, 284; People v. Petrilli (1st Dist.2014) 226 Cal.App.4th 814, 822; Union Bank v. Superior Ct. (1st Dist.2005) 130 Cal.App.4th 378, 392. This general rule of interpretation, however, does not apply to constitutionally based privileges. Regents of the Univ. of Cal. v. Superior Ct. (4th Dist.2008) 165 Cal.App.4th 672, 680; see, e.g., People v. Seijas (2005) 36 Cal.4th 291, 304 (privilege against self-incrimination should be construed liberally in favor of right intended to be secured); People v. Wharton (1991) 53 Cal.3d 522, 554 (psychotherapist-patient privilege should be construed liberally and its exceptions narrowly).

§1.3. Types of privileges. Generally, there are two types of privileges: (1) privileges that protect confidential communications and (2) privileges that protect other rights or information.

1. Privileges that protect confidential communications. Privileges that protect confidential communications encourage the development of certain relationships that public policy has deemed important. See, e.g., People v. Sinohui (2002) 28 Cal.4th 205, 213 (purpose of spousal privilege is to preserve marital relationship); Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 380 (purpose of attorney-client privilege is to encourage full and frank discussion between attorney and client). The privileges that apply most in the criminal context are the following:

(1) Attorney-client privilege. Evid. C. §954. See "Attorney-client privilege," ch. 4-C, §4.

(2) Clergy-penitent privilege. Evid. C. §§1033 to 1034. See "Clergy-penitent privilege," ch. 4-C, §11.

(3) Psychotherapist-patient privilege. Evid. C. §1014. See "Psychotherapist-patient privilege," ch. 4-C, §10.

(4) Marital-communications privilege. Evid. C. §980. See "Marital-communications privilege," ch. 4-C, §9.2.

(5) Sexual-assault counselor-victim privilege. Evid. C. §1035.8. See "Sexual-assault counselor-victim privilege," ch. 4-C, §12.

(6) Domestic-violence counselor-victim privilege. Evid. C. §1037.5. See "Domestic-violence counselor-victim privilege," ch. 4-C, §13.

(7) Human-trafficking caseworker-victim privilege. Evid. C. §1038. See "Human-trafficking caseworker-victim privilege," ch. 4-C, §14.

2. Other privileges. Privileges that protect rights or information other than confidential communications and that apply most in the criminal context include the following:

(1) Criminal defendant's testimonial privilege. Evid. C. §930. See "Defendant's testimonial privilege," ch. 4-C, §2.

(2) Self-incrimination privilege. Evid. C. §940. See "Privilege against self-incrimination," ch. 4-C, §3.

(3) Marital testimonial privilege. Evid. C. §970. See "Marital testimonial privilege," ch. 4-C, §9.1.

(4) Officer-records privilege. Evid. C. §1043. See "Officer-records privilege," ch. 4-C, §6.

(5) Official-information privilege. Evid. C. §1040. See "Official-information privilege," ch. 4-C, §7.

(6) Informant privilege. Evid. C. §1041. See "Informant privilege," ch. 4-C, §8.

(7) Work-product privilege. CCP §2018.030; Pen. C. §1054.6. See "Work-product privilege," ch. 4-C, §5.

§1.4. Application of privileges. Except as otherwise provided by statute, privileges apply in all proceedings, including any action, hearing, investigation, grand-jury investigation, or inquiry by a court, administrative agency, hearing officer, arbitrator, legislative body, or any other person authorized by law in which testimony can be compelled. See Evid. C. §§901, 910; Amgen Inc. v. Health Care Servs. (2d Dist.2020) 47 Cal.App.5th 716, 733; 7 Cal. Law Revision Comm'n Rep. (1965) p. 1150. The fact that a statute limits or makes rules of evidence inapplicable in a particular proceeding does not affect the applicability of privileges to that proceeding. Evid. C. §910. Some of the common ways in which privileges apply in criminal proceedings are the following:

1. Application to warrants. Privileges can be invoked to prevent law-enforcement authorities from obtaining, reviewing, or disclosing privileged information seized or sought under a search warrant. See Pen. C. §1524(c); People v. Superior Ct. (Laff) (2001) 25 Cal.4th 703, 716, 719.

Note
Because the rules of evidence applicable at trial do not apply in determining probable cause to make an arrest or conduct a search, police and magistrates issuing warrants can rely on privileged information in making a probable-cause determination in those situations. See Brinegar v. U.S. (1949) 338 U.S. 160, 173-74 & n.12; People v. Navarro (2d Dist.2006) 138 Cal.App.4th 146, 162; People v.Morgan (1st Dist.1989) 207 Cal.App.3d 1384, 1388-89. As a result, a party cannot complain that a warrant is void or that evidence obtained should be suppressed because the probable cause used to support the arrest or search was based on privileged information. See Navarro, 138 Cal.App.4th at 162.

2. Application to testimony. Some privileges can be invoked to prevent the holder of the privilege from being called as a witness or to prevent the holder or others from testifying about privileged information. See, e.g., Evid. C. §930 (criminal defendant's testimonial privilege), §970 (marital testimonial privilege), §980 (marital-communications privilege; spouse can prevent others from disclosing privileged information); Menendez v. Superior Ct. (1992) 3 Cal.4th 435, 448 (psychotherapist-patient privilege; patient can prevent others from disclosing privileged information). See "Holder," ch. 4-C, §1.7.1(1).

3. Application to formal discovery. Privileges can be invoked to prevent certain discovery in criminal cases.

(1) Discovery under Pen. C. §§1054-1054.10. Discovery in criminal matters is governed by a set of mandatory rules contained in Pen. C. §§1054 to 1054.10. These discovery rules were designed to be an exclusive statutory vehicle for discovery in criminal cases, and courts are prohibited from broadening the scope of discovery beyond what is provided in these rules or other express statutory provisions or what is mandated by the federal Constitution. People v. Landers (1st Dist.2019) 31 Cal.App.5th 288, 305; see Pen. C. §1054(e). The discovery rules apply to both felonies and misdemeanors. Hobbs v. Municipal Ct. (4th Dist.1991) 233 Cal.App.3d 670, 695-96, disapproved on other grounds, People v. Tillis (1998) 18 Cal.4th 284. The discovery rules are generally reciprocal—that is, they apply equally to the prosecution and the defense. Izazaga v. Superior Ct. (1991) 54 Cal.3d 356, 373; see Wardius v. Oregon (1973) 412 U.S. 470, 475 ("discovery must be a two-way street" in the absence of a strong state interest). The reciprocity requirement is intended to protect a defendant's due-process rights by preventing situations where certain information is disclosed to the prosecution but not to the defense that would interfere with the defendant's ability to secure a fair trial. People v. Valdez (2012) 55 Cal.4th 82, 120. This general right to reciprocal discovery does not, however, create a right to obtain discovery from nonparties or between codefendants. See People v. Thompson (2016) 1 Cal.5th 1043, 1094; Kling v. Superior Ct. (2010) 50 Cal.4th 1068, 1077; Nielsen v. Superior Ct. (1st Dist.1997) 55 Cal.App.4th 1150, 1156; People v. Superior Ct. (Broderick) (4th Dist.1991) 231 Cal.App.3d 584, 594. The disclosures under Pen. C. §§1054.1 and 1054.3 are due at least 30 days before trial unless good cause is shown why a disclosure should be denied, restricted, or deferred. Pen. C. §1054.7. However, this disclosure obligation may arise at a later time, such as when disclosable information becomes known to or comes into the possession of a party within 30 days before trial, upon which "disclosure shall be made immediately" See id. Thus, in practicality, this statutory discovery scheme creates a continuing duty of disclosure beginning 30 days before trial through its conclusion. Landers, 31 Cal.App.5th at 306.

(a) Prosecution's mandatory duty to disclose. Under Pen. C. §1054.1, if the prosecution possesses or knows that an investigating agency possesses the following information, it must be disclosed to the defense:

[1] Witness information.

[a] Name & address. The prosecution must disclose the name and address of any person it intends to call as a witness at trial. Pen. C. §1054.1(a). This includes any person the prosecution reasonably anticipates it will call as a witness (e.g., a rebuttal witness). Izazaga, 54 Cal.3d at 375-76 & n.11; see People v. Mora (2018) 5 Cal.5th 442, 513. Other than the name of the victim or witness, no attorney shall disclose or permit to be disclosed to a defendant, members of the defendant's family, or anyone else, the personal identifying information of a victim or witness without court approval after hearing; however, such personal identifying information may be disclosed to individuals employed by the attorney or appointed by the court to assist in the...