Privileges, generally
Category > Privileges, generally
Updated 3/6/2024Defendant did not waive his psychotherapist-patient privilege by telling police that his therapist had prescribed him antipsychotic medications. The trial court erred by finding defendant waived his psychotherapist-patient privilege by disclosing to law enforcement officers that he was seeing a psychotherapist who had prescribed hin antipsychotic medications.id: 26541
Updated 3/4/2024The trial court did not err in rejecting the newspersons’ shield law where a reporter’s unpublished notes were likely helpful to the defendant.Defendant and Parra were charged with murder. Parra had made statements to a local newspaper implicating defendant before he was charged. Defendant thereafter demanded all unpublished material relating to the interview, but the newspaper moved to quash the subpoena relying on the newspersons’ shield law described in the state constitution and Evidence Code section 1070. The trial court did not err in denying the motion to quash and finding the newspaper in contempt where the defense showed it was reasonably possible that the reporter’s notes could materially assist defendant at trial.id: 28121
Updated 2/26/2024Work-product protection applies in capital habeas proceedings after an order to show cause.Defendant argued in his habeas petition that the jury in his capital case impermissibly considered the opinion of an alternate juror. The superior court later ordered that he produce the statements of any alternate jurors he interviewed. Contrary to defendant’s claim, discovery in habeas proceedings following an order to show cause may exceed the scope of the criminal discovery scheme. However, the qualified work-product protection applies to discovery beyond that scope, and at this juncture of the proceedings precludes the superior court’s discovery order.id: 26434
It would not have compromised the government's official information privilege to notify the defense about the issues the FBI agent's testimony would address in advance of the in camera hearing.The police report stated that the victim told Edwards "of the FBI" about defendant's phone calls and visits, and Edwards urged her to call police. The FBI then informed the prosecutor of the need for an in camera hearing since Edwards was an FBI agent and there was a privilege for official information. The court erred in failing to provide defense counsel with notice of the issues that would be addressed at the hearing and an opportunity to be heard on those issues. It would not have compromised the privilege to notify the defense that Edward's testimony was at issue in advance of the in camera hearing.id: 18653
A spouse’s testimony before a grand jury does not waive his or her assertion of the spousal testimonial privilege at criminal trial.Defendant argued the trial court erred in admitting his wife’s testimony after finding her earlier testimony under a subpoena before the grand jury constituted a waiver of the spousal testimonial privilege. However, applying the plain language of Evidence Code section 973, a spouse’s testimony before a grand jury does not waive his or her subsequent assertion of the spousal testimonial privilege at a criminal trial. The error was prejudicial as to three of the four robbery convictions where the remaining evidence was not strong. id: 23609
The juvenile court erred by denying the appointment of a psychiatrist who said she would refuse to report suspected child abuse if she obtained the information during attorney-client protected conversations. The indigent minor in a juvenile delinquency case was entitled to ancillary services including a psychologist. Normally, mental health professionals are required to report suspected child abuse. The minor sought the appointment of a psychologist who informed the court she would not violate the attorney-client privilege and report suspected abuse, and the court denied the appointment for that reason. However, it erred in doing so. The law requiring mandatory reporting does not contravene established law on confidentiality and privilege governing defense experts and allowing that interpretation could jeopardize a criminal defendant’s right to a fair trial.id: 23179
The trial court erred in finding the location from which the officer viewed the drug transaction was privileged under section 1040 and by concluding it was not material information.Defendant was convicted of drug possession and the case was based largely on the observations of a police officer who declined to reveal the exact location of his observation. The trial court erred by finding the location was privileged under Evidence Code section 1040 and that it was not material for purposes of section 1042. The privilege cannot be upheld where the transcript reviewed at the in camera hearing provided no information about the location or why secrecy was necessary. Moreover, knowledge of the claimed location was key to the effective cross-examination of the officer and the court’s refusal to allow its disclosure denied defendant a fair trial.id: 23111
The trial court erred by finding the SVP defendant’s psychological records were admissible under the “dangerous patient” exception to the psychotherapist patient privilege. The trial court erred at defendant’s sexually violent predator trial in releasing his psychological records from a treatment center and allowing testimony from a therapist at the center. The materials were covered by the psychotherapist-patient privilege and did not come within the “dangerous patient” exception to the privilege. The prosecutor presented no evidence that defendant said anything to the therapist suggesting he might be a danger. The ruling was based on the prosecutor’s brief and conclusory offer of proof that the records would show and the parole officer believed defendant was dangerous. The error violated defendant’s federal constitutional right to informational privacy and was prejudicial where the information impacted the prosecutor’s experts at trial.id: 22023
Newsperson's shield law's definition of unpublished information does not require a showing by the newsperson that the information was obtained in confidence.The term unpublished information in the California newsperson's shield law includes a newsperson's nonconfidential, eyewitness observations of an occurrence in a public place. However, the newsperson's protection under the shield law must yield to a criminal defendant's constitutional right to a fair trial when the newsperson's refusal to disclose information would unduly infringe on that right.id: 11951
Court should have permitted defense counsel to ask sexual assault victim counselor a sanitized question after she invoked the privilege.During cross-examination, the child molest victim stated that she had never attended a program at school where adults taught them about child abuse and "good touches and bad touches." Defendant then sought to introduce evidence that such a program had been taught, records showed the victim was present, and the victim had a discussion with a counselor after the program. The sexual assault counselor then invoked the victim-counselor privilege declared in Evidence Code section 1035.8. The court should have permitted defendant to ask the sanitized question whether the counselor remembered the victim had attended the program. The error was harmless as the school records were admitted, and they provided strong support for an inference that the victim was present.id: 12714
Marital privilege exception applies to crimes committed against a foster child of the husband or wife.Petitioner was subpoenaed to testify before the grand jury concerning an investigation as to whether her husband killed a foster child who resided with them. She challenged the order compelling her to testify in the grant jury proceedings arguing she could invoke the marital privilege against such testimony. Under Evidence Code section 972 there is a marital privilege exception for crimes committed against a child of the husband or wife. Petitioner argued the foster child was not a child for purposes of that provision. However, a foster child is a child under section 972 and the exception applied in the instant case.id: 12723
Statements made to psychotherapist in preparation of a report for the defense are not discoverable under the reciprocal discovery statutes.A defendant in a criminal case cannot be compelled under the reciprocal discovery statutes to supply the prosecution with his statements about the offense made to and relied upon by a psychotherapist for the purpose of preparing a report for the defense. Such statements are covered by the attorney-client privilege and are exempt from discovery under the provisions of Penal Code section 1054.6.id: 11884
Marital privilege applied to a couple who remained legally married but had no contact for 17 years.Susan Jurcoane sought review of an order denying her marital privilege claim, and requiring her to testify at a preliminary hearing where her husband was charged with two murders in 1984. Her husband fled California immediately after the killings and was charged a few days later. The couple never divorced and remained legally married. However, the couple had no contact for 17 years. The magistrate determined the marital privilege did not apply since a viable marital relationship no longer existed. However, the privilege contains no such limitation. Only the Legislature could choose to add such an exception to the existing express statutory marital privilege exceptions listed in Evidence Code section 972.id: 16562
Defendant's motive for attending psychotherapy is immaterial in determining whether the psychotherapist-patient privilege applies.The prosecutor argued the records of psychotherapy ordered as a condition of defendant's probation were not protected under the psychotherapist-patient privilege since defendant's motivation in attending therapy was to obtain probation rather than treatment of his mental or emotional condition. However, the records were protected since a defendant's motive for participating in psychotherapy is immaterial.id: 17395
Updated 7/12/2024The trial court did not err in allowing the jurors to learn that the defense had hired a DNA expert.Defendant argued the trial court erred in allowing the jurors to learn that he had retained a DNA expert. Contrary to the defense claim this was not information covered by the work product privilege and the prosecution did not err in calling attention to it. The court also did not err in failing to disclose to the defense that during its closing argument, the jurors sent a note asking about the DNA expert, or in failing to limit the prosecutor’s rebuttal on the issue.id: 28325
Updated 3/7/2024Threatening statements made to a therapist outside of a therapy session were not protected under the psychotherapist-patient privilege.A juvenile ward of the court made statements (threats to harm others) to an in-home counselor who interpreted them as threats. He was thereafter found to have violated his probation by making criminal threats under Penal Code section 422. Contrary to the minor’s claims, the psychotherapist-patient privilege (Evidence Code section 1014) did not apply because the statements did not occur during a therapy session.id: 26272
Updated 2/26/2024The denial of request for therapist’s record was proper under the psychotherapist-patient privilege and the confrontation clause does not apply pretrial.The trial court did not err by refusing to review or order the disclosure of her husband’s visit to a therapist. The trial court properly found the psychotherapist-patient privilege applied, and that defendant failed to show the documents contained material evidence that was not otherwise available. Moreover, the confrontation clause does not provide a pretrial right of discovery.id: 26230
Updated 2/26/2024Marital privilege applied to a couple who separated but remained legally married. M.W. was the defendant’s legal wife although their divorce had been pending for years. The trial court erred when it denied M.W.’s assertion of the marital privilege and admitted the testimony of uncharged acts of abuse the defendant had committed against her. There was no exception to the marital privilege where the legal marriage is nonviable. id: 27502
Updated 2/24/2024Defendant’s challenge to the newsperson’s shield law failed where he did not show the notes he sought were material.Defendant argued the trial court violated his right to obtain evidence when it refused to require reporter to disclose her notes from a jailhouse interview with him. He argued the newsperson’s shield law should not apply because he was both the source of the information and the person seeking its disclosure. However, defendant failed to show that the information contained in the notes would have materially assisted his defense.id: 26642
Updated 2/3/2024The prosecutor’s notes taken during a Batson hearing were not protected work product where he had placed his juror rating system at issue. The defense filed a Batson/Wheeler motion during jury selection in defendant’s capital case. The motion was denied. The defense later moved for postconviction discovery under Penal Code section 1054.9 seeking access to the prosecutor’s jury selection notes. The prosecution argued the notes were protected as work product. However, during the Batson hearing the prosecutor had relied on an undisclosed juror rating system to explain his reasons for the peremptory challenges. By putting that rating system at issue, the prosecutor impliedly waived any claim of work product protection containing information about the system.id: 27726
Prosecutor’s reference to jury selection notes when offering reasons after Batson/Wheeler motion waives work product protection.The prosecutor’s jury selection notes, when referenced by a prosecutor offering a neutral reason for exercising a peremptory strike, are discoverable by the defendant as part of a postconviction writ of habeas corpus discovery.id: 26140
The reporter’s invocation of the newsperson’s shield law did not prevent defendant from properly challenging the admission of the jailhouse letter.Defendant argued the trial court erred by admitting a jailhouse letter he wrote to a fellow inmate, about which a newspaper reporter later questioned him. He argued the prosecution failed to establish the chain of custody by showing he wrote the letter. However, evidence showed that defendant wrote the letter and no one tampered with it. Moreover, the reporter’s invocation of the newsperson’s shield law did not prevent defendant from challenging the admission of the letter by restricting his cross-examination of the reporter.id: 24103
Probationers may be required to waive the psychotherapist-patient privilege to the extent necessary to allow the sex offender management professional to communicate with the supervising probation officer.Defendant was convicted of several sex offenses. The trial court ordered him to waive any psychotherapist-patient privilege to enable communication between the sex offender management professional and the probation department. The provision was constitutional where the court interpreted it to require waiver only insofar as necessary to enable communication between the supervising probation officer and the sex offender management professional.id: 23742
Statements made to a staff member at a psychiatric hospital where defendant admitted child sexual abuse were not covered by the psychotherapist-patient privilege.Defendant argued that the trial court erred by ruling that if he testified in his own defense, the prosecution could introduce privileged statements he made to a staff ember at a psychiatric hospital for impeachment. There is no general rule permitting communications protected under the psychotherapist-patient privilege to be admitted for impeachment purposes. However, an exception to the privilege applies where the therapist is required to report a statement describing child sexual abuse. Because the statements defendant made here were excluded from the privilege it would not have prevented their admission into evidence.id: 23985
The trial court properly imposed sex offender probation conditions that required defendant to waive his privilege against self-incrimination and the psychotherapist-patient privilege.Defendant pled no contest to two counts of lewd conduct with minors. The trial court granted probation and imposed sex offender probation conditions under Penal Code section 1203.067(b) that included waiving his privilege against self-incrimination while participating in polygraph exams, and waiving his psychotherapist-patient privilege allowing communication between his therapist and probation officer. The provision requiring a waiver of the privilege against self incrimination did not violate the 5th Amendment and was not otherwise improper. And the waiver of the psychotherapist-patient privilege was not invalid because it was “coerced.” id: 23533
Defendant lacked standing to challenge the court’s refusal to inform his wife of the privilege of one spouse not being forced to testify against the other. Defendant argued the trial court erred when it refused to inform his wife of the statutory privilege of one spouse not to be forced to testify against the other. However, the privilege is personal to the spouse seeking to avoid testifying, and because his wife held the privilege, defendant lacked standing to raise the issue. id: 21210
The trial court did not err in upholding the section 1040 government information privilege as to the officer’s surveillance location.Defendant was convicted of drugs for sale based in part on what a police officer observed from a surveillance location. At trial, the prosecutor refused to identify the location citing the government information privilege described in Evidence Code section 1040. The court upheld the assertion of the privilege. Contrary to defendant’s claim, the surveillance location was not material because the police officer’s testimony about observations from that location were sufficiently corroborated by independent evidence that there was no realistic possibility that disclosing the location would have enabled defendant to raise a doubt as to the officer’s veracity.id: 20931
Defendant cannot challenge work product for the first time on appeal, and prosecution witness’s testimony about the evidence sent to a defense lab did not constitute a “writing” for purposes of the privilege.Defendant argued the trial court erred by permitting a prosecution witness to testify that she sent the evidence to a defense laboratory for testing. He claimed the testimony violated work product provisions. However, he did not invoke the work product privilege at trial and cannot raise it for the first time on appeal. Moreover, there was no violation of the privilege because the witness’s testimony regarding the evidence did not constitute a “writing” reflecting defense counsel’s impressions, conclusions or opinions.id: 20324
The state cannot require a parolee to waive his right to confidentiality of the psychotherapist-patient privilege.Defendant was informed by his parole officer that he must sign a waiver of the psychotherapist-patient privilege to allow his privately retained psychotherapist to communicate with the parole authority. However, the waiver requirement was an unreasonable condition of parole.id: 20095
Defendant could not assert the confidential marital communications privilege where he did not show that he entered into a valid common law marriage with the witness in Texas.The trial court did not err in failing to exclude the witness' testimony regarding an incriminating statement defendant made to her. Defendant argued the marital communications privilege under Evidence Code section 980 barred admission of the testimony because he and the witness had a valid common law marriage under Texas law. California does not recognize common law marriages but does recognize marriages considered valid in other states. Texas recognizes common law marriages if it is shown the parties agreed to be husband and wife, lived together in Texas pursuant to the agreement and held themselves out to the public as husband and wife. While the couple did live together there was no specific agreement to marry and the evidence the couple held themselves out as married was weak and ambiguous. The trial court properly found the privilege did not apply.id: 12715
The marital privilege did not apply because even though defendant was married to the witness at the time of the communication, the marriage was invalid since his divorce from an earlier marriage was not final.Defendant argued the court erred in denying the motion to exclude the testimony of Edith Ballew regarding communications he made to her during the time they were married. However, defendant and the witness were not legally married at the time of the communications because defendant's divorce was not final at the time of the marriage ceremony. The marital privilege applies only in the case of a valid marriage.id: 16392
Defendant was not entitled to discovery of the psychiatric records of his codefendant.The trial court erred in denying the motion to quash the defendant's subpoena seeking discovery of a codefendant. The codefendant was not part of the prosecution and he could not be required to decide whether to testify in order to litigate the issue of the motion to quash. The discovery statutes do not require that one defendant be obligated to provide materially exculpatory evidence to a codefendant, much less that one defendant provide privileged records to a codefendant.id: 11852
The trial court did not violate the psychotherapist-patient privilege by ordering disclosure of the notes and raw data of psychologist who testified at the suppression hearing.Defendant retained a psychologist to testify before trial in support of his motion to suppress his statement. He concluded the statement was involuntary. The trial court ordered
defense counsel to turn over to the prosecution, defendant's notes and raw data. The prosecutor did not use the materials for cross-examination at the hearing but did use them later during the sanity trial. Requiring disclosure of these materials did not violate the psychotherapist-patient
privilege.id: 19441
The psychotherapist-patient privilege does not apply in SVP proceedings, and the court did not err in denying the request for confidentiality of court-appointed experts.At defendant's Sexually Violent Predator proceedings, the trial court did not err in denying his request that the psychological evaluations of the doctor's appointed to assist him be kept confidential and not disclosed to the prosecutor. The psychotherapist-patient privilege applies to a court-appointed expert in a criminal proceeding, but does not apply in an SVP proceeding.id: 18537
Juvenile court did not violate minor's right to privacy or the psychotherapist-patient privilege by ordering disclosure of medical and psychiatric records as a condition of probation.The minor argued that the juvenile court violated his right to privacy and the psychotherapist-patient privilege by ordering, as a condition of his probation, unnecessary and overbroad disclosure of his medical and psychiatric health records. While he has a privacy interest in these records, the state has a legitimate countervailing interest in protecting the public against the minor's violent and antisocial conduct. Moreover, by reasonably limiting disclosure of the otherwise privileged psychiatric records to the probation officer and the court, the court acted under the authority of Evidence Code section 1012 and avoided the unnecessary disclosure of those communications.id: 18426
The court did not err in allowing Dr. Oshrin to testify as a prosecution rebuttal witness even though the defense decided not to call him since other defense witnesses testified they relied in part on Dr. Oshrin's report.During the penalty phase, the defense called two psychologists who testified that in preparing for the case they read the report of Dr. Oshrin - who interviewed defendant and prepared the report, but was not called by the defense at trial. Defendant argued the trial court erred by allowing the prosecution to call Dr. Oshrin as a rebuttal witness. However, defendant waived all privileges regarding all matters the psychologists considered or on which they relied, including Dr. Oshrin's report. Because defendant waived these privileges regarding Dr. Oshrin's report, the prosecutor was free to call him as a rebuttal witness and question him about the report.id: 18281
The trial court did not err in allowing the reporter to use the shield law to prevent the production of his interview notes.Following defendant's arrest, he was interviewed by a newspaper reporter, and said he expected to get the death penalty. Prior to the penalty phase, the defense subpoenaed the reporter and his notes of the conversation. The newspaper and the reporter invoked the California shield law protections. Defendant argued the court erred in failing to require the reporter to produce his notes and limiting his responses to defendant's demeanor and perceived mental state. However, any claim that the notes would have been helpful was speculative, and defendant made no attempt to show what the notes might add. Moreover, the fact that the court held an in camera hearing to determine the extent of the reporter's reliance on the shield law did not affect his testimony as to defendant's interview demeanor.id: 18213
Wife's testimony about her observations of defendant on the night of the murder did not violate the confidential marital communication privilege.Defendant objected to his wife's testimony that when he returned home on the night of the murders, she observed him wearing a watch and possessing cocaine. However, the witness's observations were not confidential communications for purposes of the Evidence Code section 980 privilege. Another statement defendant made to his wife was not intended to have been confidential as evidenced by the fact that others were present when the statement was repeated.id: 17795
Exception to the spousal testimony privilege applies where no crime against the spouse is charged and the third party is the primary victim.Defendant was charged with the kidnapping and murder of a man defendant found with his wife. He was not charged with any crimes against his wife. The trial court compelled his wife to testify about the crimes to the third party pursuant to the exception to the spousal testimony privilege codified in Evidence Code section 972, subd.(e)(2). Contrary to defendant's claim, the exception to the privilege applies even where defendant is not charged with a crime against his wife. Moreover, the exception which applies to a crime against a third party committed in the course of a crime against the spouse, does not require that the spouse be the primary victim.id: 16852
Official information privilege is not waived where the information is shared among various governmental agencies.Petitioner subpoenaed items from police and sheriff's investigative reports relating to the death of a 21 month-old girl. Police argued the information was protected under the official information privilege set forth in Evidence Code section 1040, subd. (b)(2). Defense counsel argued the privilege was waived because the law enforcement agencies provided the information to the Social Services Agency. However, the privilege was not waived by allowing social workers to review the police reports for purposes of preparing their own reports. Moreover, the policy behind the official information privilege is one of governmental privilege, not merely single agency privilege.id: 16514
Psychotherapist-patient privilege does not apply in a hearing to forfeit firearms of a person detained for a mental disorder.Welfare and Institutions Code section 8102 authorizes the seizure and possible forfeiture of weapons belonging to persons detained for possible mental disorders under section 5150. In a section 8102 hearing, testimony of a psychiatrist who examines a person detained pursuant to section 5150, is admissible under Evidence Code section 1016 and not covered by the psychotherapist-patient privilege.id: 16436
Testimony of therapist from court-ordered treatment plan regarding the minor's progress did not violate the psychotherapist-patient privilege.The minor argued the testimony of his therapist from a court-ordered treatment center was erroneously admitted after he invoked the psychotherapist-patient privilege at the hearing to determine the effectiveness of his placement. However, the psychotherapist-patient privilege under Evidence Code sections 1012 and 1014, did not preclude the therapist from testifying at the adjudication of the supplemental petition concerning the minor's participation and progress in the court-ordered treatment plan.id: 15969
SVP evaluators use of former therapy records did not violate the psychotherapist-patient privilege.At defendant's sexually violent predator trial (under Welfare and Institution's Code section 6600 et seq.) the evaluating psychologists were permitted to review and use his statements to former treating psychologists. Contrary to defendant's claim, the psychotherapist-patient privilege did not preclude the psychologists from considering defendant's therapy records because the privilege never attached to his communications with the treatment staff at Atascadero or his MDSO evaluator.id: 14955
After upholding the surveillance location privilege, the court did not err in failing to strike the officer's testimony where the location was not material to guilt.Trial court sustained the police officer's invocation of the confidential privilege for his surveillance location. Appellant claimed that after upholding the privilege the court erred in failing to strike the officer's testimony because the location was material to the issue of guilt and nondisclosure deprived him of a fair trial pursuant to the requirements of Evidence Code section 1042, subdivision (a). However, the evidence did not establish the location was material to guilt. The officer was standing at eye level, 15 feet away from the drug transaction which took place at 5:45 p.m. under good lighting conditions. The officer had an unobstructed view and saw appellant receive cash in exchange for a small object later identified as rock cocaine.id: 12712
Court did not err in upholding the privilege of confidentiality for the exact surveillance location where the location was not material on the issue of guilt.From a surveillance location an officer observed the minor's involvement in a drug transaction. At the jurisdictional hearing the minor attempted to cross-examine the officer regarding the location of the surveillance. The court upheld the prosecutor's assertion of the privilege of confidentiality for the location of the surveillance pursuant to Evidence Code section 1040. The minor argued that pursuant to section 1042, subd. (a) an adverse finding was required because the privileged information was material. However, the court did not err in upholding the privilege because that exact surveillance location of the officer was not material on the issue of the minor's guilt.id: 12713
Defendant waived the psychotherapist patient privilege when he called the doctor to testify at the first trial.Defendant argued the court erred in admitting the testimony of a defense expert called as a rebuttal witness by the prosecution over defense objection. Defendant claimed the testimony violated the psychotherapist patient privilege. However, defendant waived the privilege when he called the doctor to testify on his behalf at the first trial.id: 12716
Defendant was not entitled to discovery of child molest victim's psychological records where the Court of Appeal reviewed the records and determined they would not assist defendant.The trial court did not err in refusing to provide defendant with the psychological records of two therapists who saw the child molest victim. The Court of Appeal reviewed the requested records and determined they contained no information that was potentially essential to vindicate defendant's right to a fair trial and to confront the victim. Defendant's right of confrontation did not outweigh the victim's right to privacy as reflected by the privilege protecting the confidentiality of her psychologists' records.id: 12717
Defendant who confided in the Mexican consul held no consular privilege.The consular privilege to withhold evidence in criminal proceedings is held and may be waived only by the consul's government, not by the individual consul. Further, defendant who confided in the consul holds no such privilege is thus on appeal statutorily precluded from asserting error by the trial court in failing to assert the privilege on the government's behalf.id: 12718
Freelance journalist was protected under newsperson's shield law as to unpublished information acquired before he entered into the Hustler contract.A third party witness/freelance journalist, qualified for the protections afforded a newsperson under Article I, section 2(b) of the California Constitution and Evidence Code section 1070. These provisions provided the witness with newsperson's shield protection both before and after the execution of the contract with <i>Hustler</i> magazine. Moreover, the shield provisions did not violate defendant's right to a fair trial where the court, after reviewing the material, specifically found there was nothing in the tapes that represented significant impeachment information.id: 12719
In resolving crime-fraud exception the court is not limited to independent evidence and may review allegedly privileged materials in camera.Vacating the Ninth Circuit's <i>en banc</i> ruling, a unanimous Supreme Court per Justice Blackmun held that in determining the applicability of the crime-fraud exception to the attorney-client privilege, the court is not limited to independent evidence, but may consider the content of the contested communications themselves. Moreover the court may review the allegedly privileged materials <i>in camera</i>. Before such review, however, the party opposing the privilege must make a showing of a factual basis adequate to support a good faith belief by a reasonable person that such review may reveal evidence to establish the exception's applicability.id: 12720
Letter to psychotherapist was not privileged where psychological treatment was not the dominant purpose in writing the letter.Appellant argued the court prejudicially erred in admitting into evidence his letter to a psychotherapist who conducts the county Adult Sex Offender Treatment Program. He claimed the letter violated the psychotherapist-patient privilege (Evidence Code section 1014). However, appellant's asserted purpose in writing the letter - to avoid a prison sentence - was not protected under section 1014. Nowhere in his testimony did appellant suggest that even part of his purpose was to receive treatment. He therefore failed to meet his burden of establishing that treatment was his dominant purpose and the letter was not a privileged communication.id: 12721
Marital privilege could not be asserted where their conduct showed no expectation of privacy.Defendant argued the use of a tape recording of the jailhouse conversation between he and his wife violated the confidential communications privilege of Evidence Code section 980. However, the participants had no expectation of privacy where they were in a regular jail visiting room speaking loudly to each other through the plexiglass with knowledge that a guard was watching them. The privilege could not be asserted.id: 12722
Privilege for confidential marital communications did not apply where defendant suspected authorities were reading the letters he sent his wife.Defendant moved to exclude letters he had written to his wife while in custody in Japan claiming the letters were confidential marital communications pursuant to Evidence Code section 980. However, defendant noted that he believed the Japanese or United States authorities were intercepting and reading the letters. The letters were therefore not written in confidence and the privilege for confidential marital communications did not apply.id: 12724
Psychotherapist-patient privilege may not be claimed once the communication loses its confidential status.Defendant argued the statements made to his psychotherapist regarding threats to kill others were admitted in violation of the psychotherapist-patient privilege. However, at the time of trial, the doctor had already revealed the communications. The privilege may no longer be claimed once the communication is no longer confidential.id: 12725
Statements made within the psychotherapeutic relationship which lead therapists to conclude defendant poses a threat to a victim are not privileged.Because the defendant made comments within the psychotherapeutic relationship which led his therapists to reasonably conclude he posed a threat to the victim, such comments were not privileged pursuant to Penal Code section 1024. Moreover, because the preliminary facts justifying application of section 1024 existed prior to the realization of the threatened danger, not only were the therapists free to communicate such statements to the victim, but defendant's statements were not privileged and the trial court correctly ruled that evidence concerning those statements was admissible at trial.id: 12726
The trial court properly required defendant's wife to testify because defendant committed crimes against cohabitants.Evidence Code section 972, subdivision (e)(1) provides an exception to the privilege not to testify against one's spouse when the spouse is charged with a crime against a cohabitant of either. Defendant was a cohabitant of the victims where he lived in the victims' two story house under an arrangement where he would take care of the house and yard. Moreover, the confidential marital communications privilege did not prevent defendant's wife from testifying regarding a suicide note she found in the trash can because the message from defendant was never communicated to his wife in a confidential manner.id: 12728
There is no marital testimonial privilege where the victim was a cohabitant of defendant's spouse.At trial the witness asserted the privilege not to testify against her husband. The court compelled her testimony after concluding that pursuant to Evidence Code section 972, subdivision (e), there is no marital privilege where the victim is a cohabitant of defendant's spouse. Defendant argued that a cotenant whose relationship is commercial is not a cohabitant within the meaning of section 872. However, because of the particular vulnerability of individuals in their own homes, the marital privilege does not apply to criminal acts against any cohabitants.id: 12729
Trial court did not err in refusing to review pretrial records of molest victim's psychotherapist.Before trial commenced in the sexual molestation case, defendant served subpoenas on psychotherapists who had treated the complaining witness. The trial court was not required, at the pretrial state of the proceedings, to review or grant discovery of privileged information in the hands of third party psychotherapist providers. Pretrial access to such information was not necessary to vindicate defendant's federal constitutional right to confront and cross-examine the complaining witness at trial or to receive a fair trial.id: 12730
Wife who testified against her husband during the preliminary hearing could not assert her testimonial privileges during the subsequent trial.Defendant's wife testified against him during the preliminary hearing. He argued that the court erred in compelling her to testify against him during the trial. However, the wife, by testifying at the preliminary hearing, effectively lost her privilege not to testify or to be called to testify against defendant during his subsequent trial. Thus, the trial court did not err in rejecting the wife's effort to assert her testimonial privileges under Evidence Code section 970 and 971 during defendant's trial.id: 12731
Dangerous-patient exception to the psychotherapist-patient privilege applied to two of four counseling sessions where the doctor believed the patients were dangerous and disclosure was necessary to prevent harm.Defendant brothers were charged with the murder of their parents. The issue was the validity of the claim of the psychotherapist-patient privilege as to four sessions between defendants and a clinical psychologist. The communications did not lose their confidential status for purposes of the privilege when they were passed on to the therapist's girlfriend and from her onto others. However, the dangerous-patient exception to the privilege applied as to two of the sessions because the doctor reasonably believed the patients were dangerous and that disclosure of the communications was necessary to prevent harm to his wife and girlfriend. The exception did not apply to the two other sessions because disclosure was not necessary to prevent harm. The privilege was upheld as to those sessions and the Supreme Court rejected the ruling that the sessions were not really therapy sessions because the patients were motivated by self-interest and the doctor by self-preservation.id: 12732
Defendant waived the psychotherapist-patient privilege where he placed his mental condition in issue on direct examination.Defendant argued the court erred in failing to place limitations on prosecutorial access to his psychiatric records from several state hospitals. However, he placed his mental condition in issue by claiming that mental problems had prompted his admission into St. Mary's as a teenager and had continued through his incarceration at Chope Hospital as an arrestee in this case. He also accused Napa and Atascadero of professional malpractice, but suggested he had, nonetheless adjusted well in Napa. The court did not err in concluding that defendant had waived the psychotherapist-patient privilege insofar as it might otherwise apply to recorded information about his condition, treatment and performance at these institutions.id: 12710
Admission of defense psychiatrist's pretrial testimony did not violate the attorney-client privilege or the psychotherapist-patient privilege which was waived when defendant tendered the mental defense at trial.Defendant challenged the trial court's ruling permitting the prosecutor to impeach the testimony of his trial experts with the testimony, given at a pretrial hearing to suppress defendant's incriminating statements, of Dr. Mayland, a defense psychiatrist. However, defendant waived the attorney-client privilege protecting his statements to Mayland when Mayland took the stand at the pretrial hearing and revealed them. Moreover, defendant waived the psychotherapist-patient privilege and the Fifth Amendment privilege against self-incrimination when he raised his rage reaction defense at trial. At that point, Mayland's testimony was not protected by any applicable privilege or constitutional right and could be used by the prosecutor for impeachment or rebuttal.id: 12711
Counsel was not ineffective in failing to point out the marital privilege only allows a spouse to refuse to testify against a spouse where there was no offer of proof as to the wife's proposed testimony.Defendant's wife invoked the marital privilege and refused to testify at the penalty trial. He argued defense counsel provided ineffective assistance of counsel in failing to point out that the marital privilege only permits the spouse to refuse to give testimony against his or her spouse. The wife's testimony may have been favorable to defendant as she may have been a percipient witness on the night of the crime. However, defendant was unable to demonstrate prejudice because the record contained no offer of proof regarding the content of the witness' proposed testimony.id: 12327
Defendant was not entitled to full disclosure of prosecution witness' psychiatric reports.Shortly after the complaint was filed, defendant subpoenaed a private psychiatrist for records relating to psychotherapy of a prosecution witness. The parties claimed the psychotherapist-patient privilege but sanitized excerpts were released. Defendant argued the limited disclosure of the records prejudicially undermined his right to cross-examine the witness effectively at trial. However, these were not records generated by the prosecution in preparation of the case and the prosecutor had no greater access to them than defendant. It is unlikely defendant was constitutionally entitled to them even if they were material to his case. Even if he were entitled to the records, no error occurred given that on three separate occasions the records were reviewed in camera and the court concluded they contained no information significant enough to override the witness' privilege of confidential psychotherapy.id: 11853
Trial court is not required to provide a section 1524, subdivision (c) hearing to a physician suspected of Medi-Cal fraud.A physician suspected of Medi-Cal fraud is not entitled as a matter of right to a Penal Code section 1524, subdivision (c) hearing to determine the applicability of the physician patient privilege to patient files seized from his office pursuant to a search warrant. The trial court has the inherent authority to determine the applicability of the physician-patient privilege, and also has the discretion to fashion an appropriate remedy to protect the interests and confidentiality of the Medi-Cal patients.id: 11062
Trial court did not prejudicially err in excluding testimony of a psychotherapist that the child molest victim was lying.The trial court did not prejudicially err in excluding testimony of a family psychotherapist that the alleged child molest victim was lying. While expert opinion in this area is admissible on the issue of the victim's ability to tell the truth, defendant's offer of proof was narrowly directed to the truth of the allegation and the court had no discretion to admit the evidence. Moreover, the court did not err in finding the psychotherapist-patient privilege required exclusion of the evidence. Since evidence of the victim's emotional state was before the jury, and the expert's testimony would have been substantially cumulative, the evidence was not of such value or importance that it could outweigh the psychotherapist-patient privilege.id: 10009
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245