Chapter 4 - §2. Defendant's testimonial privilege

• Jurisdiction: United States

§2. Defendant's testimonial privilege

§2.1. Overview. Under Evid. C. §930, a criminal defendant has a privilege not to be called as a witness and not to testify in his own criminal case. Cramer v. Tyars (1979) 23 Cal.3d 131, 137. This is known as the defendant's testimonial privilege. The rationale for this privilege is to ensure that the accusatorial system of justice does not become inquisitorial. Id. at 137-38.

1. Source of privilege. The privilege under Evid. C. §930 derives from the protection against self-incrimination found in the Fifth Amendment to the U.S. Constitution and in California Constitution article 1, §15. Cramer, 23 Cal.3d at 137; see People v. Carter (2005) 36 Cal.4th 1114, 1198; People v. Lopez (4th Dist.2006) 137 Cal.App.4th 1099, 1106, disapproved on other grounds, Hudec v. Superior Ct. (2015) 60 Cal.4th 815. The statutory privilege exists only to the extent that such a privilege exists under either the state or the federal constitution. Evid. C. §930. Thus, the scope of the privilege's protection, its exceptions, and the circumstances that permit its waiver are not governed by the statute but by the courts' interpretations of those constitutional provisions. See 2 Witkin, California Evidence (5th ed.), Witnesses §374; see, e.g., Black v. State Bar (1972) 7 Cal.3d 676, 685-88 (relying on court interpretations of both constitutional provisions to determine whether privilege not to be called as witness applied in attorney disciplinary proceeding); cf. Maldonado v. Superior Ct. (2012) 53 Cal.4th 1112, 1135 (interpreting parallel statutory language in Evid. C. §940). But after the passage of Proposition 8 (Victims' Bill of Rights) in 1982, the protections afforded by the state constitutional provision should not be interpreted to permit an exclusion of evidence that would be impermissible under the federal constitution. Cf. People v. May (1988) 44 Cal.3d 309, 318-19 (interpreting other aspect of privilege against self-incrimination under Evid. C. §940). For a discussion of Proposition 8, see "Exceptions to admissibility," ch. 1, §3.2.

2. Distinguished from privilege against self-incrimination. Although the privilege described in Evid. C. §930 derives from the privilege against self-incrimination in Evid. C. §940, the two are very distinct. Cramer, 23 Cal.3d at 137; see People v. Ford (1988) 45 Cal.3d 431, 440; People v. Whelchel (4th Dist.1967) 255 Cal.App.2d 455, 460. The testimonial privilege under Evid. C. §930 applies only to a defendant in a criminal case in which he is the subject, and it applies regardless of whether the defendant would be in any danger of incriminating himself by appearing as a witness or testifying. See Evid. C. §930; Cramer, 23 Cal.3d at 137-38. By contrast, the privilege against self-incrimination under Evid. C. §940 applies to any person (e.g., defendant, witness) in any type of proceeding—whether civil, criminal, administrative, investigatory, or adjudicatory—as long as the person claiming the privilege can show that testifying or providing evidence would pose a reasonable danger that he would incriminate himself. See Evid. C. §940; Cramer, 23 Cal.3d at 137. For a discussion of Evid. C. §940, see "Privilege against self-incrimination," ch. 4-C, §3.

§2.2. Elements of defendant's testimonial privilege. For the defendant's testimonial privilege to apply, the person must be (1) a defendant in his own criminal case and (2) called as witness or compelled to testify. Evid. C. §930.

1. Defendant in criminal case. The testimonial privilege applies only to a defendant in a criminal case. Evid. C. §930. Thus, the privilege applies only in proceedings that are criminal in nature; it does not apply in civil proceedings. In re Scott (2003) 29 Cal.4th 783, 815; Cramer v. Tyars (1979) 23 Cal.3d 131, 137; see People v. Berg (4th Dist.2019) 34 Cal.App.5th 856, 871-72 (habeas corpus proceeding deemed civil in nature for purpose of asserting privilege against self-incrimination). A proceeding is considered criminal in nature if it has a punitive purpose, even if the statute authorizing the proceeding defines or characterizes it as a civil action. See Allen v. Illinois (1986) 478 U.S. 364, 368-69; In re Gault (1967) 387 U.S. 1, 49-50; Thurston v. Clark (1895) 107 Cal. 285, 289; see also 2 Witkin, California Evidence (5th ed.), Witnesses §384 (privilege against self-incrimination applies to broad category of quasi-criminal proceedings).

(1) Proceedings in which privilege applies. The testimonial privilege applies in the following proceedings because they are considered to be criminal in nature:

(a) Criminal prosecution. A defendant can assert the testimonial privilege in a criminal prosecution. 2 Witkin, California Evidence (5th ed.), Witnesses §384. This includes the sanity phase of a criminal trial. People v. Flores (2d Dist.1976) 55 Cal.App.3d 118, 122. Although the guilt and sanity phases of trials in which a defendant pleads "not guilty" and "not guilty by reason of insanity" are bifurcated, a defendant cannot be compelled to testify on the issue of sanity because the sanity phase is "a continuation of the same criminal proceeding." Id.; People v. Lamey (2d Dist.1930) 103 Cal.App. 66, 67-68.

(b) Recommitment hearing after insanity verdict. A defendant can assert the testimonial privilege in the prosecution's case-in-chief during a recommitment hearing to determine whether the defendant's period of involuntarily custody in the state mental hospital should be extended after initially being committed after a finding of not guilty by reason of insanity. Hudec v. Superior Ct. (2015) 60 Cal.4th 815, 826; see Pen. C. §1026.5(b). Before the California Supreme Court's decision in Hudec, courts were divided on whether the defendant's testimonial privilege applied in proceedings to extend a defendant's commitment to a state hospital or other treatment facility under Pen. C. §1026.5. Compare People v. Lopez (4th Dist.2006) 137 Cal.App.4th 1099, 1116 (privilege inapplicable), with People v. Haynie (5th Dist.2004) 116 Cal.App.4th 1224, 1230 (privilege applicable). The court in Hudec resolved this conflict by finding that the privilege not to be called as a witness is clearly implicated and relevant when a defendant is called by the prosecution in a proceeding to recommit him under Pen. C. §1026.5 because the statutory language of §1026.5(b) (7) expressly provides that a defendant in such a proceeding is "entitled to the rights guaranteed under the federal and State Constitutions for criminal proceedings." Hudec, 60 Cal.4th at 822, 824-26.

(c) SVP proceeding. A defendant may be able to assert the testimonial privilege in a sexually-violent-predator (SVP) proceeding. While courts had previously held that the testimonial privilege was not available in SVP proceedings, after the California Supreme Court's decision in Hudec, the First District Court of Appeal held that a defendant in an SVP proceeding is similarly situated to a defendant in a recommitment hearing after an insanity verdict and thus should be permitted to assert his testimonial privilege unless the prosecution can justify the need for the compelled testimony. See People v. Curlee (1st Dist.2015) 237 Cal.App.4th 709, 720. Because the First District Court of Appeal concluded that the record before it was inadequate to determine whether a justification for the compelled testimony was made, the court remanded the matter to the trial court to conduct an evidentiary hearing to allow the prosecution an opportunity to make the requisite showing. Id. at...