You probably know that if you are charged with a crime in California or in any other state, you have the right to remain silent – that is, you can’t be forced to testify against or incriminate yourself.

The right to remain silent is a right granted to everyone in the U.S. by the Fifth Amendment to the United States Constitution.

But in a criminal case in the state of California, if you are the person who is charged with a crime, is there any way – that is, any legal way – that a Long Beach assault and battery lawyer can help you keep someone else from testifying against you?

IF YOU ARE CHARGED WITH A CRIME, WHAT IS YOUR FIRST PRIORITY?

You may be surprised to learn that in some circumstances, in fact, you can keep someone else from testifying against you.

But first things first. If you are charged with a crime in southern California – with any misdemeanor or felony – your future and your freedom may be on the line. You must seek a lawyer’s help as quickly as possible.

Reach out to an experienced criminal defense attorney at your first opportunity if you are arrested and charged with any crime in southern California. Your attorney will investigate the allegation against you, review the evidence, and question the witnesses.

WHAT IS AN EVIDENTIARY PRIVILEGE?

Generally speaking, criminal courts in this state may require a witness to appear at a criminal trial and provide testimony. A criminal court may even in some cases issue a subpoena to compel an unwilling witness to appear and testify at a trial.

However, the Fifth Amendment’s protection against self-incrimination is not the only reason why some otherwise key witnesses may be prevented from testifying – or may choose not to testify – in a California criminal trial.

Under California law, an “evidentiary privilege” is a privilege to:

1. decline to testify or to disclose particular information in a criminal case
2. prevent another party’s testimony or the disclosure of particular information against you

WHICH PRIVILEGES ARE RECOGNIZED IN CALIFORNIA CRIMINAL TRIALS?

Privileges are not constitutional rights, and the laws regarding privileges differ slightly from state to state. The California Evidence Code spells out a number of evidentiary privileges that are honored by the courts in this state.

The evidentiary privileges that are most likely to be asserted in a California criminal trial include:

1. the lawyer-client (or attorney-client) privilege
2. the spousal privilege (the right not to testify against your spouse)
3. the physician-patient privilege
4. the penitent-clergy privilege
5. the sexual assault counselor/domestic violence counselor privilege
6. the psychotherapist-patient privilege (which is inapplicable if a defendant claims insanity or incompetency)

WHAT IS THE REASONING BEHIND EVIDENTIARY PRIVILEGES?

The attorney-client privilege is probably the oldest evidentiary privilege. It has been a part of California law since 1851. For the privilege to apply, a client must have formally retained the attorney’s legal services. When a lawyer is not acting as a lawyer, the privilege does not apply.

The attorney-client privilege is necessary in order for attorneys to represent their clients effectively. A criminal defendant can speak freely with his or her attorney about all aspects of a case without fearing that anything said to the attorney will be disclosed.

HOW DOES THE SPOUSAL PRIVILEGE WORK?

Both federal and state laws protect the confidentiality of spouses. A spouse may not be forced to testify about the other spouse in a criminal trial or a grand jury proceeding. Spouses must be married when the privilege is asserted; spousal privilege lasts only as long as the marriage.

“Spousal privilege” is actually a term that describes two separate privileges: the spousal “communications” privilege and the spousal “testimonial” privilege.

The spousal communications privilege protects confidential communications between spouses during their marriage from testimonial disclosure, while spousal testimonial privilege protects anyone holding the privilege from being called to testify against his or her spouse.

The most common exception to spousal privilege is when a spouse is the victim of a crime committed by the other spouse. Another exception can apply in child abuse cases if one spouse is charged with abuse of the couple’s child or either spouse’s child from a previous marriage.

WHAT ABOUT PRIVILEGES FOR DOCTORS, THERAPISTS, AND CLERGY?

In California, the physician-patient and psychotherapist-patient privileges protect communications between a patient and doctor that are made within the scope of the doctor’s provision of services. Federal law, however, does not recognize any doctor-patient privilege.

However, federal and state law both recognize a clergy-penitent privilege. Like the attorney-client privilege, it allows someone to speak freely to a priest, pastor, rabbi, or other clerical figure without fearing that anything said will be disclosed.

The law in California defines a “penitent” as someone who has made a penitential communication – such as confessing to committing a crime – to a member of the clergy.

WHEN MAY AN EVIDENTIARY PRIVILEGE BE WAIVED?

Any of these evidentiary privileges may be waived if the person who holds the privilege either discloses part of the privileged communication or consents to someone else disclosing the privileged communication.

If you or someone you love has been arrested and charged with a crime in southern California, you must be advised and represented by a trustworthy and reputable Long Beach criminal defense attorney.

If you are prosecuted for a crime, you cannot expect leniency from southern California’s courts. They are notoriously tough.

HOW CAN A DEFENSE LAWYER HELP?

The right attorney will help you obtain release on bail, have your bail amount lowered, or obtain your release on your own “recognizance” – your promise to appear in court.

Your lawyer will use every available legal tool to protect your freedom. If the charge against you cannot be dismissed, your lawyer may recommend going to trial and asking a jury of your peers for a not guilty verdict.

But in some cases, the evidence against a defendant will be strong, and a conviction will be unavoidable. In these circumstances, your attorney may recommend accepting the prosecutor’s offer of a plea bargain agreement, and he or she will work for reduced or alternative sentencing.

Nothing is a higher priority than your freedom and your future. If you are accused of a crime in southern California, reach out at once to an experienced Long Beach defense attorney for the legal help that you are very much going to need. You have that right.