Privilege & Immunity

Attorney-Client Privilege

Spousal Privilege

Spousal Privilege Not to Testify Against His/Her Spouse
  • Rule: witness spouse has a privilege not to testify against the other spouse. (EC 970.)
  • Privilege Holder: witness-spouse
  • Privilege may be claimed only if there is a valid marriage or domestic partnership in effect at the time the witness testifies. (People v. Bradford (1969) 70 Cal.2d 333, 343.)
  • 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).)
  • Invocation In Jury’s Presence. Contempt is not a constitutional right. (People v. Lopez (2012) 71 Cal.App.4th 1550; People v. Morgain (2009) 177 Cal.App.4th 454.)

Immunity

  • 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
  • Statutes
    • PC 1324 governs immunity in felony proceedings.
  • PC 1324.1 governs immunity in misdemeanor proceedings.