Doctor/Patient and Clergy/Confessor Privileges and Criminal Investigations

FROM THE CLASSROOM
By: Ray Hill, Professor Emeritus, Santa Rosa Junior College

Doctor/Patient and Clergy/Confessor Privileges and Criminal Investigations

This is third in a series of articles covering the California Evidence Code and criminal investigations. This time we will cover the Doctor/Patient and Clergy/Confessor privileges. One will be an easy source for suspect statements and the other is pretty much “locked down”, even more so than Attorney/Client.

DOCTOR-PATIENT

   This one is simple. Always try to talk to the doctor about any conversations that involve criminal activity. Any communication between doctor-patient that involves a patient’s knowledge or participation in criminal activity is not privileged in court (998 E.C.).

   A doctor might be hesitant to interview or give a statement because of his/her “Hippocratic Oath”. They don’t teach the Evidence Code in medical school! HIPPA regulations may cover medical conditions, but not suspect statements! You can try to diplomatically educate the doctor about the “crime exception”. If the doctor is still hesitant to speak, when he/she receives a subpoena, one must testify or face contempt of court sanctions. A search warrant or subpoena could also be issued for examination notes.

   Another exception to this privilege is when services are sought to enable or aid anyone to commit or plan to commit a crime or tort or to escape detection or apprehension for a crime or tort (997 E.C.).

    Doctors are required to make certain "proactive" reports to law enforcement. This includes suspected child abuse, sexual abuse, or neglect of a minor (11160 P.C.) and any injuries possibly caused by criminal means (gunshot, stabbing, sexual assault, physical assault (11161 P.C.). Failure to make these reports is a misdemeanor.

 CLERGY-CONFESSOR

   "The history of this nation has shown a uniform respect for the character of sacramental confession as inviolable by governmental agents interested in securing evidence of crime from the lips of criminals”. “All fifty states have ....

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