There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate. Therefore, a person cannot be examined as a witness as to matters which are privileged. The general classes of privilege are stated in 503 of Division 1 of this Title. This

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Section provides the principles underlying the privileges stated in 503 of this Title:

1. A husband cannot be examined for or against his wife without his consent, nor a wife for or against her husband without her consent; nor can either during the marriage or afterward, without the witness’s consent, be examined as to any communication made by one to the other during the marriage.
2. An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment, nor can any attorney’s secretary, stenographer or clerk be examined without the consent of the employer, concerning any fact the know- ledge of which has been acquired in such capacity.

3. A clergyman or priest cannot, without the consent of the person making the confession, be examined as to any confession made to him in his professional character in the course of discipline enjoined by the church to which he belongs.
4. A licensed physician or surgeon cannot, without the consent of the patient, be examined in a civil action as to any information acquired in attending the patient, which was necessary to enable him to prescribe or act for the patient, provided, however, that either before or after probate, upon the contest of any will executed, or claimed to have been executed, by such patient or after the death of such patient, in any action involving the validity of any instrument executed or claimed to have been executed, by him, conveying or transferring any real or personal property, such physician or surgeon may testify to the mental condition of said patient and in so testifying may disclose information acquired by him concerning said deceased which is necessary to enable him to prescribe or act for such deceased; provided, further, that after the death of the patient, the executor of his will or the administrator of his estate, or the surviving spouse of the deceased or, if there be no surviving spouse, the children of the deceased personally, or if minors by their guardian, may give their consent, in any action or proceeding brought to recover damages on account of the death of the patient; pro- vided, further, that where any person brings an action to recover damages for personal injuries, such action shall be deemed to constitute a consent by the person bringing such action that any physician or surgeon who has prescribed for or treated said person and whose testimony is material in said action shall testify; and provided,

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further, that the bringing of an action to recover for the death of a patient, by the executor of his will, or by the administrator of his estate, or by the surviving spouse of the deceased, or if there by no surviving spouse by the children personally or, if minors, by their guardian(s), shall be deemed consent to the testimony of any physician or surgeon who attended said deceased.
5. A public officer cannot be examined as to communications made to him in official confidence, when the public interest would suffer by its disclosure. Any determination of whether or not such communications should be, in fact, disclosed, shall be made by the court or judge thereof hearing the case, sitting in camera. No matter sought to be disclosed may be ordered by the court to be disclosed until a period of five (5) days has elapsed, during which the interested parties may appeal. If an appeal is timely taken, no disclosure may be ordered until the appeal is disposed with in favor of the party seeking disclosure.

SOURCE: CCP § 1881, modified.

COURT DECISIONS: See People v. Santos, Superior Court Cr. #86F-79 (8/20/80) in which the Court interpreted § 503 of Div. 1 in accordance with the latest Federal inter- pretation of the marital privilege. This Section has been changed to reflect both § 503 and the Santos case.

COMMENT: 1. Subsection 1 has been materially changed from the rule at Common Law. At Common Law the non-witness spouse shared the privilege so that he or she could forbid the testimony of the witness-spouse in privileged areas. This Subsection and 503, and the U.S. Supreme Court have all decided that the privilege should be reduced to that of the witness-spouse only. Thus, if the witness-spouse desires to testify about marital affairs, he or she may without obtaining the consent of the other spouse. The courts now believe that if one spouse is willing to testify against the other, the marriage is in such a bad shape that it is beyond the protection of the privilege.

2. Section 504 of Div. 1 states that claims of privilege are to be governed by the principles of the common law as they may be interpreted by the Superior Court of Guam in light of reason and experience.” Therefore, the Commission is continuing the definition of privileges as contained in prior law, modified only where needed to conform with Division 1 and with clarity.

3. CCP § 1881 contains the first sentence of Subparagraph 5 of this Section dealing with government privilege. The Attorney General has suggested that at least procedures be stated to guide the court in determining when to use the privilege. Therefore, the remainder of the Subparagraph is added to provide for in camera hearings and no disclosure until after appeals have ended. To provide otherwise would be to moot the possibility of appeal. However, no further guidelines are added to restrict the privilege since this language has existed in the Code from its Guam beginnings with no detriment to the public welfare.

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4. No definition of psychotherapist-patient privilege is added here. California law contains a multitude of definitions and more exceptions. Considering the state of the art on Guam, the Commission thought it wise to leave the definition of this privilege up to the court “in light of reason and experience,” and that not just from California.