Function: allows a client to refuse to disclose—and prevent anyone else from disclosing—communications with a lawyer that are intended to be confidential. (EC 954.)
Presumptively Privileged. Statement is presumptively privileged if party claiming the privilege establishes the information in question is a confidential communication made in the course of an attorney-client relationship. (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733.)
Confidential communication is statutorily defined. (EC 952.)
Limited Privilege. Only protects communications between attorney and client made for the purpose of seeking or delivering the attorney’s legal advice or representation.
Does Not Apply: in a criminal proceeding in which the D is charged with a crime against the parent, relative, or cohabitant of either spouse, whether committed before or during the marriage. (EC 972(e)(1).)
Spousal Privilege Not to Be Called as a Wtiness
Rule: Witness spouse has a privilege not to be called as a witness by adverse party where the spouse is a party. (EC 971.)
Waiver: if witness spouse testifies against the other spouse on any matter in a proceeding, the privilege not to testify is waived as to all matters in that proceeding. (EC 973.)
Does Not Apply: in a criminal proceeding in which the D is charged with a crime against the parent, relative, or cohabitant of either spouse, whether committed before or during the marriage. (EC 972(e)(1).)
Confidential Communications
Rule: A spouse has a privilege during the marital or domestic partnership and afterwards to refuse to disclose and to prevent another from disclosing a communication made in confidence with the other spouse while they were spouses. (EC 980.)
Presumption. Communications in the course of the marital are presumed confidential. (EC 917.)
Waiver. If one spouse reveals the communication to a third party, this constitutes a waiver under EC 912.
Privilege Holder. Both spouses are the holders of this privilege and either can claim it. (EC 980.)
Crime Exception. Privilege is inapplicable if communication was made to enable or aid anyone to commit or plan to commit a crime or a fraud. (EC 981.)
CCP 1219: DV & Sex Assault Victims
Not a ‘privilege’ to not testify. But functionally permits such victims not to testify.
Rule: when a person has been found in contempt of court for refusal to perform an act that the person is capable of performing, the court may order the person jailed until that act is performed. (In re Mark A. (2007) 156 Cal.App.4th 1124, 1143.)
DV Victims & Sex Assault Victims Refusal To Testify Concerning The DV/Sex Assault. “A court shall not imprison or otherwise confine or place in custody…[such individuals] for contempt if the contempt consists of refusing to testify concerning that sexual assault or domestic violence crime.” (CCP 1219(b).)
Two types of immunity: transactional and use immunity
Transactional Immunity: provides immunity from later prosecution related to any matter about which the witness testified
Use Immunity: only prevents authorities from using the actual testimony or evidence that was obtained under the immunity grant
Prevents law enforcement authorities from using only the testimony, or its fruit, that was obtained under a grant of immunity in a later prosecution of that witness