A panel of the Superior Court appellate division ruled today on the admissibility of a videotape as evidence in the domestic violence trial of San Francisco Sheriff Ross Mirkarimi. The videotape, of Mirkarimi’s wife, was taken by a neighbor shortly after the alleged incident on New Year’s Eve. Both Mirkarimi and his wife now deny that any domestic battery took place, but the videotape could sway a jury otherwise.

The problem is, when the neighbor offered to make that videotape, Mirkarimi’s wife thought that neighbor was a lawyer, and that the video would be protected by attorney-client privilege. As it turned out, the neighbor had graduated from law school but did not have a law license.

Mirkarimi faces charges of misdemeanor domestic violence battery, child endangerment and dissuading a witness. On New Year’s Eve, prosecutors say, Mirkarimi grabbed his wife in front of their son, who is a toddler. The couple denies the incident. If convicted, he could face up to a year in jail.

In the video, Mirkarimi’s wife tearfully describes what happened and shows a bruise on her upper right arm. The San Francisco District Attorney’s office considers it a key piece of evidence.

The legal question of whether the videotape should be protected by attorney-client privilege is complex, but it essentially boils down to whether, under the circumstances, a reasonable person would have thought they were in privileged communication with a lawyer.

Today that panel of the San Francisco Superior Court’s criminal appellate division ruled that the videotape is not protected by attorney-client privilege, so the prosecution can go against the wishes of Mirkarimi’s wife and use it against Mirkarimi at trial.

The attorney representing Mirkarimi’s wife told reporters that it was likely she will file for review by the Court of Appeals. Mirkarimi’s attorney has filed a separate motion that the videotape is inadmissible, which has not yet been heard. He has also filed a motion for a change of venue due to the exhaustive media coverage of the domestic battery allegations.

Source: Associated Press, “Appellate panel OKs video of wife in San Francisco sheriff’s domestic violence trial,” March 9, 2012