May I Refer to My Notes?

[Note: Subsequent to this post the Supreme Court denied review, but ordered the opinion depublished.  See, "Gray Depublished," posted Sept. 5, 2011.

In People v. Gray (Apr. 28, 2011, C062668), __ Cal. App. 4th __ [2011 DJDAR 5973] the Third District Court of Appeal held that a party who uses confidential attorney-client communications to refresh his recollection while testifying waives the attorney-client privilege.

Defendant was charged with spousal rape of an unconscious or sleeping victim, rape by foreign object, four counts of burglary, sexual battery, stalking and "a host of misdemeanors."  When defendant was called to testify in his defense he brought 18 pages of notes with him and referred to the notes during his testimony.  The prosecutor asked to see what he took to the stand and the court ordered disclosure of the notes.

The defendant contended that the notes were confidential communications with his attorneys, and the court assumed this was true for the purpose of the appeal.  It concluded that the attorney-client privilege was waived by his bringing the notes to the stand and using them to refresh his memory.  Since Evidence Code §771 provides that any writing used by a witness to refresh his or her memory must be produced at the request of the opposing party, defendant's exposure of a significant part of the communications in making his own case was inconsistent with an intent to preserve them as confidential attorney-client communications.

It is unclear from the decision whether the result would be the same if the defendant had reviewed the notes prior to taking the stand.  The court said, however, that under the facts of this case it would be unjust to allow a party to use written materials on the witness stand and then hide behind the attorney-client privilege.