Privileges, Judicial Notice, and Presumptions (Federal and California)

The attorney-client privilege protects a CONFIDENTIAL communication between a client (or prospective client) and a lawyer made for the purpose of obtaining or providing legal advice. It belongs to the CLIENT (the lawyer asserts it on the client's behalf), survives the client's death (Swidler & Berlin v. United States), and covers communications, not underlying facts — a client cannot shield a fact merely by telling it to a lawyer. The presence of a necessary third party (an interpreter, an accountant aiding the legal advice) does not destroy confidentiality, but the presence of a stranger does.

The CRIME-FRAUD exception defeats the privilege where the client sought the lawyer's services to further a future or ongoing crime or fraud. Distinct from privilege, the WORK-PRODUCT doctrine (Hickman v. Taylor; codified for civil cases in FRCP 26(b)(3)) protects materials prepared in anticipation of litigation; ordinary work product yields on a showing of substantial need and undue hardship, while OPINION work product (an attorney's mental impressions, conclusions, legal theories) is nearly absolutely protected.

FRE 502 limits the waiver effect of disclosing privileged or work-product material, especially inadvertent disclosures, and permits non-waiver orders binding in other proceedings.

There are TWO distinct marital privileges. (1) The spousal testimonial privilege (spousal immunity) applies only in CRIMINAL cases and lets a witness-spouse refuse to testify against the defendant-spouse about anything; under Trammel v. United States the privilege belongs to the WITNESS-spouse, who may choose to testify, and it lasts only as long as the marriage.

(2) The confidential marital communications privilege applies in BOTH civil and criminal cases, is held by BOTH spouses, protects only CONFIDENTIAL communications made DURING a valid marriage, and survives divorce (though it does not reach communications before or after the marriage, or statements made in furtherance of a crime). Neither privilege applies in proceedings between the spouses or where one spouse is charged with a crime against the other or the children.

FRE 501 establishes that federal courts apply common-law privileges 'in the light of reason and experience,' but in a civil case where STATE law supplies the rule of decision (a diversity claim), STATE privilege law governs — so California privilege rules can control a federal diversity case.

California codifies privileges in the Evidence Code and recognizes some the federal system does not. CEC 954 is the attorney-client privilege (broadly similar). CEC 1014 establishes a robust PSYCHOTHERAPIST-PATIENT privilege held by the patient — federal law recognizes a psychotherapist privilege too (Jaffee v. Redmond), but California's is detailed and includes the Tarasoff-derived dangerous-patient exception (no privilege where disclosure is necessary to prevent a threatened danger). CEC 994 provides a PHYSICIAN-PATIENT privilege in CIVIL cases — the FEDERAL courts do NOT recognize a general physician-patient privilege.

CEC 1033-1034 protect penitential (clergy) communications, held by both the penitent and the clergy member. California's marital privileges are split into the testimonial privilege (CEC 970-973, a spouse's privilege not to testify against the other and not to be called) and the confidential marital communications privilege (CEC 980). Importantly, Proposition 8 does NOT abrogate privileges — they are expressly preserved — so all of these survive in criminal cases.

Privileges are not absolute; each can be WAIVED or defeated by a recognized exception, and the bar examiners test those triggers far more than the elements. The attorney-client privilege is waived by voluntary disclosure of a significant part of the communication, by failing to assert it, or by putting the advice in issue (an advice-of-counsel defense); FRE 502 softens this by providing that an INADVERTENT disclosure does not waive if the holder took reasonable steps to prevent and to rectify it, and a court order of non-waiver binds third parties in other federal and state proceedings.

The CRIME-FRAUD exception defeats the privilege where the client sought or used the lawyer's services to further a FUTURE or ONGOING crime or fraud — past wrongdoing remains protected, and the proponent must make a prima facie showing of the wrongful purpose, after which a judge may conduct in camera review (United States v. Zolin).

The privilege belongs to the CLIENT, survives death (Swidler & Berlin v. United States), and shields only communications, not the underlying facts or pre-existing documents; the presence of a necessary agent (interpreter, accountant aiding legal advice) preserves confidentiality, but a stranger's presence destroys it.

The TWO marital privileges have distinct exceptions: neither the spousal testimonial privilege (held by the witness-spouse under Trammel, criminal cases only, lasting only during marriage) nor the confidential marital communications privilege (held by both spouses, civil and criminal, surviving divorce) applies in litigation BETWEEN the spouses or where one spouse is charged with a crime against the other spouse or the children.

The psychotherapist-patient privilege (Jaffee v. Redmond federally; CEC 1014 in California) yields under the Tarasoff-derived DANGEROUS-PATIENT exception when disclosure is necessary to prevent a threatened serious danger, and California adds a patient-litigant exception when the patient tenders his mental condition. Work two hypotheticals. First, CRIME-FRAUD: a client consults a lawyer to learn how to structure cash deposits to evade reporting requirements he then commits — the consultation furthers an ongoing crime, so the privilege is defeated even though the lawyer was unaware of the scheme.

Second, FRE 501 CHOICE OF LAW: in a federal diversity suit applying California substantive law, a party seeks a physician's confidential treatment records; federal common law recognizes NO general physician-patient privilege, but because state law supplies the rule of decision, FRE 501 directs application of California privilege law, and CEC 994's physician-patient privilege may protect the records.

Two final points round out the section: judicial notice of adjudicative facts under FRE 201 is conclusive in CIVIL cases but only permissive (the jury MAY but need not accept it) in CRIMINAL cases, preserving the jury-trial right;

and presumptions diverge sharply, with FRE 301 shifting only the burden of PRODUCTION in federal civil cases (the bursting-bubble Thayer model) while California's CEC 600-670 distinguish presumptions affecting the burden of producing evidence (CEC 603-604) from the stronger presumptions affecting the burden of PROOF/persuasion (CEC 605-606), which actually shift the persuasion burden — so a California answer must classify the presumption before stating its effect.

Privileges: Federal vs. California

FRE 201 governs judicial notice of ADJUDICATIVE facts — facts about the parties and events of the case. A court may take notice of a fact not subject to reasonable dispute because it is either (1) generally known within the trial court's territorial jurisdiction, or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned (an almanac, a calendar). Notice may be taken at any stage, even on appeal, and is mandatory if a party requests it and supplies the necessary information.

The instruction differs by case type: in a CIVIL case the jury MUST accept a noticed fact as conclusive; in a CRIMINAL case the jury MAY but is NOT required to accept it (preserving the right to a jury determination). Presumptions: FRE 301 provides that in federal civil cases a presumption shifts only the burden of PRODUCTION (the 'bursting bubble' Thayer model), not the burden of persuasion, which stays with the party who had it originally.

California is different — CEC 600-670 split presumptions into those affecting the burden of PRODUCING evidence (CEC 603-604) and the more powerful presumptions affecting the burden of PROOF/persuasion (CEC 605-606), which actually shift the persuasion burden. On a CA essay, classify the presumption before stating its effect.