CHAP 12 PRIVILEGES Prof JANICKE FALL 2019 2019 Chap 12 Privileges 2 DEFINITION A PRIVILEGE IS A RIGHT OF SOME PERSON OR ENTITY TO BLOCK THE ADMISSION OF CERTAIN KINDS OF EVIDENCE IN A CASE EVEN THOUGH ID: 774258
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CHAP. 12 :PRIVILEGES Prof. JANICKE FALL 2019
2019 Chap. 12 -- Privileges 2 DEFINITION A PRIVILEGE IS A RIGHT OF SOME PERSON OR ENTITY TO BLOCK THE ADMISSION OF CERTAIN KINDS OF EVIDENCE IN A CASE EVEN THOUGH THE EV. IS RELEVANT EVEN THOUGH THE EV. IS CRUCIAL NO REASON IS NEEDED
2019 Chap. 12 -- Privileges 3 PURPOSE TO FURTHER SOME SOCIETAL GOAL REFLECTS HUMANKIND’S EFFORT TO CIVILIZE ITSELF ENCOURAGING CERTAIN KINDS OF HUMAN COMMUNICATIONS BY KEEPING THEM OUT OF THE COURTS
FEDERAL STANDARDS ON PRIVILEGESNO RULES WERE ACTUALLY ENACTED THE U.S. JUDICIAL CONFERENCE PROPOSED THE 500-SERIES OF RULES, BUT THEY DID NOT MAKE IT THROUGH CONGRESS 2019 Chap. 12 -- Privileges 4
THESE PROPOSALS ARE NOW KNOWN AS “STANDARDS” NOT OFFICIALLY “RULES” BUT THEY CARRY A LOT OF WEIGHT IN THE COURTS[ARE POSTED IN COURSE MATERIALS] 2019 Chap. 12 -- Privileges5
TURN TO TEXAS RULES ON PRIVILEGES 2019 Chap. 12 -- Privileges 6
TEXAS RULE ON ATTORNEY-CLIENT PRIVILEGE RULE 503 2019 Chap. 12 -- Privileges 7
2019 Chap. 12 -- Privileges 8 ATTORNEY-CLIENT PRIVILEGE A PERSON WHO CONSULTS A LAWYER FOR THE PURPOSE OF OBTAINING LEGAL ADVICE HAS A PRIVILEGE TO BLOCK DISCLOSURE OF WHAT THE PERSON SAID OR THE LAWYER SAID, IF THE CIRCUMSTANCES WERE APPARENTLY CONFIDENTIAL
2019 Chap. 12 -- Privileges 9 EXCEPTIONS VERY NARROW NEEDS OF THE OTHER SIDE DO NOT CREATE ANY EXCEPTION TO THE PRIVILEGE THEY CAN TRY TO DISCOVER THE FACTS SOME OTHER WAY THE ONLY SIGNIFICANT EXCEPTION IS: A LATER ACTION BETWEEN THE LAWYER AND THE CLIENT MALPRACTICE ACTION TO COLLECT A FEE
2019 Chap. 12 -- Privileges 10 SO-CALLED CRIME/FRAUD “EXCEPTION” WHERE CLIENT’S MAIN PURPOSE IS TO INVOLVE THE LAWYER IN ASSISTING IN A CRIME OR FRAUD, THE DEFINITION ISN’T MET ( PURPOSE ISN’T TO GET LEGAL ADVICE ) NOT REALLY AN EXCEPTION, BUT OFTEN CALLED ONE
2019 Chap. 12 -- Privileges 11 WHEN LAWYER THEN DECLINES THE REPRESENTATION THE PRIVILEGE STANDS, PER THE DEFINITION NO LAWYER-CLIENT RELATIONSHIP IS NEEDED PRIVILEGE DERIVES FROM THE PURPOSE OF THE COMMUNICATION
2019 Chap. 12 -- Privileges 12 UNKNOWN EAVESDROPPER NO EFFECT APPARENT CONFIDENTIALITY IS ENOUGH SOME OLDER CASES CONTRA EAVESDROPPERS CAN BE ENJOINED TO MAINTAIN SILENCE
2019 Chap. 12 -- Privileges 13 BOTH SIDES OF CONVERSATION ARE INCLUDED TRADITIONALLY, ONLY WHAT THE CLIENT SAID WAS PRIVILEGED HOWEVER, WHAT THE LAWYER SAID USUALLY INHERENTLY REVEALS WHAT THE CLIENT SAID, AND WAS CALLED DERIVATIVELY PRIVILEGED E.G. : “HMMM! THEN I THINK YOU’RE GUILTY OF MURDER!”
2019 Chap. 12 -- Privileges 14 MOST MODERN DECISIONS SHORTEN THE ANALYSIS AND SAY THE PRIVILEGE COVERS BOTH WAYS
2019 Chap. 12 -- Privileges 15 THE CLIENT “OWNS” THE PRIVILEGE, MEANING: ONLY SHE CAN DECIDE WHETHER OR NOT TO BLOCK DISCLOSURE IN COURT, i.e., TO WAIVE THE PRIVILEGE ONLY SHE CAN DECIDE WHICH OF LAWYER’S HELPERS, OR HER OWN HELPERS, SHOULD LEARN THE COMMUNICATION
2019 Chap. 12 -- Privileges 16 THE PROBLEM OF WAIVER ONLY THE CLIENT OR HIS REPRESENTATIVE (WHO IS OFTEN THE LAWYER) CAN WAIVE CLIENT CAN WAIVE BY TAKING ACTION: BY DISCLOSURE; or BY AUTHORIZING DISCLOSURE OF THE COMMUNICATION; or BY AUTHORIZING AN AGENT TO DECIDE ON DISCLOSURE OF THE COMMUNICATION CLIENT’S AUTHORIZATION TO WAIVE CAN BE IMPLICIT: LAWYER FOR A LITIGANT IS USUALLY PRESUMED TO HAVE AUTHORITY TO WAIVE, UNLESS FACTS SHOW OTHERWISE
2019 Chap. 12 -- Privileges 17 CLIENT DECIDES ON WAIVER LAWYER MUST HONOR THE CLIENT’S WAIVER INSTRUCTION EVEN IF EMBARRASSING TO THE LAWYER THIS IS A RESULT OF CLIENT “OWNING” THE PRIVILEGE
2019 Chap. 12 -- Privileges 18 WAIVER BY CONDUCT: HALF-OPEN DOOR RULE REVEALING PARTS IN TESTIMONY REVEALING ONE LAWYER COMMUNICATION BUT ASSERTING PRIVILEGE ON OTHERS ON SAME TOPIC WAIVER BY PRODUCING PRIVILEGED DOCUMENTS IN LITIGATION R. 502 CODIFIES THE HALF-OPEN RULE OTHER COMMUNICATIONS THAT OUGHT “IN FAIRNESS” TO BE CONSIDERED WITH WAIVED ITEM
“INVOLUNTARY” WAIVER: AFFIRMATIVE USE OF COUNSEL OPINIONS USING LAWYER’S ADVICE TO GET A BENEFIT IN COURT IS AN INVOLUNTARY WAIVERE.G., TESTIFYING TO AN OPINION OF COUNSEL, TO SHOW GOOD FAITH OR LACK OF FRAUDLAWYER CAN THEN BE DEPOSED, MUST ANSWER RE. THE WHOLE TOPICOTHER LAWYERS’ OPINIONS ON THE TOPIC ARE ALSO WAIVED 2019 Chap. 12 -- Privileges19
2019 Chap. 12 -- Privileges 20 NO PICK-AND-CHOOSE WAIVERS WAIVING AS TO ONE COMMUNICATION USUALLY OPERATES AS A WAIVER ON OTHER PRIVILEGED COMMUNICATIONS ON SAME TOPIC, UP TO THE DATE OF THE WAIVER
SOME RELIEF FROM THIS “SPREADING STAIN” OF WAIVER, IF REVELATION IS ACCIDENTAL :A COURT’S NON-WAIVER ORDER IS BINDING FOR REVELATIONS IN THE CASEPARTIES’ NON-WAIVER AGREEMENT IS BINDING, BUT ONLY FOR THIS CASE 2019 Chap. 12 -- Privileges 21
TEXAS RULE 503WALK THROUGH ALL PHRASES OF THIS RULE -- 2019 Chap. 12 -- Privileges 22
PROBLEMS/CASES 12A 12B12CMeredith12DSuburbanUpjohn Osterhoudt (cont’d) 2019 Chap. 12 -- Privileges 23
PROBLEMS/CASESZolin 12E 12F12GTrammel12HMontgomery 2019 Chap. 12 -- Privileges 24
MORE TEXAS RULES OF EVIDENCE
2019 Chap. 12 -- Privileges 26 TWO MARITAL PRIVILEGES [TEXAS RULE 504] THE “MARITAL COMMUNICATION” PRIVILEGE MADE DURING MARRIAGE UNDER APPARENT PRIVACY CONDITIONS PRIVILEGE BELONGS TO THE SPEAKING SPOUSE DOES NOT EXTEND TO CONTEMPORANEOUS ACTIONS PRIVILEGE SURVIVES DIVORCE
2019 Chap. 12 -- Privileges 27 EXCEPTIONS ACTIONS BETWEEN THE SPOUSES CRIMINAL CASE WHERE ALLEGED VICTIM WAS (i) THE LISTENING SPOUSE, OR (ii) A MINOR CHILD SPEAKING SPOUSE HAS NO PRIVILEGE IN SUCH CASES SEVERAL OTHER EXCEPTIONS SEE TEXAS R. EV. 504
2019 Chap. 12 -- Privileges 28 EXAMPLE HUSBAND: “LOOK HERE, HONEY, AT ALL THIS MONEY I ROBBED FROM THE BANK!” IF EX-WIFE BECOMES A TRIAL WITNESS: SHE CAN BE COMPELLED TO TESTIFY TO SEEING MONEY DUMPED BY HUSBAND ON THE BED, but HUSBAND CAN PREVENT EX-WIFE FROM TESTIFYING TO WHAT HE SAID
2019 Chap. 12 -- Privileges 29 2. THE “PRIVILEGE NOT TO BE CALLED” BY THE PROSECUTION [TEX. RULE 504] BELONGS TO THE WITNESS-SPOUSE, NOT THE ACCUSED SPOUSE; IT IS HER CHOICE [FED. AND TEX. RULES ARE THE SAME] ENDS WITH DIVORCE DOES NOT APPLY WHERE WITNESS-SPOUSE IS THE ALLEGED VICTIM
THE NON-ACCUSED SPOUSE (WIFE) MUST TESTIFY IF SUMMONED BY THE ACCUSED SPOUSE (HUSBAND HER PRIVILEGE IS TO REFUSE TO BE A WITNESS FOR THE PROSECUTION 2019 Chap. 12 -- Privileges 30
2019 Chap. 12 -- Privileges 31 MANY OTHER STATES, COMMON LAW (AND MANY MOVIES) OPPOSITE OF THE TEXAS RULE THERE, THE PRIVILEGE TO PREVENT THE WIFE FROM TESTIFYING BELONGS TO THE HUSBAND
2019 Chap. 12 -- Privileges 32 PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION D CAN’T BE REQUIRED TO TESTIFY D CAN’T BE OBLIGED TO WRITE OUT A CONFESSION BUT: IF D WRITES A DOCUMENT ON HIS OWN INITIATIVE, THIS PRIVILEGE DOES NOT APPLY; ABSENT SOME OTHER PRIVILEGE, IT CAN BE SUBPOENAED AND USED BY THE PROSECUTION
NOTE:COMPELLED CONDUCT IS NOT PROTECTEDBODILY FLUIDSHANWRITING SAMPLE 2019 Chap. 12 -- Privileges33
2019 Chap. 12 -- Privileges 34 THE PROBLEM OF BUSINESS FILES THEY ARE CREATED VOLUNTARILY, SO ARE NOT PROTECTED BY THIS PRIVILEGE GIVING THEM TO A LAWYER WON’T HELP BUT SOMETIMES, PRODUCING THEM IN RESPONSE TO SUBPOENA COULD HAVE EFFECT OF MAKING A FORCED STATEMENT -- >>
2019 Chap. 12 -- Privileges 35 EXAMPLE SUBPOENA REQUESTING “ALL BANK DEPOSIT SLIPS THAT REFLECT DEPOSITS OF MONEY MADE FROM NARCOTIC SALES” THIS SHOULD BE QUASHED, SINCE THE COMMAND IS PHRASED SUCH THAT COMPLIANCE WOULD AMOUNT TO A COMPELLED STATEMENT
2019 Chap. 12 -- Privileges 36 EXAMPLE 2 SUBPOENA COMMANDING PRODUCTION OF “THE WEAPON YOU USED IN THE MAY 15 MURDER” ACT OF COMPLIANCE IS EQUIVALENT TO CONFESSION SHOULD BE QUASHED
2019 Chap. 12 -- Privileges 37 CIVIL CASES: JUDICIAL COMMENT ON INVOKING THE 5 TH Tex. R. 513(c) CIVIL PLAINTIFF INVOKING: IS APT TO BE NON-SUITED IN TEXAS CIVIL DEFENDANT INVOKING: WILL HAVE HEAVY NEGATIVE JUDICIAL COMMENT FOR INVOKING 5 TH AMENDMENT IN TEXAS ALL OTHER PRIVILEGES ARE UNMENTIONABLE
2019 Chap. 12 -- Privileges 38 CLERGYMAN-PENITENT [TEXAS RULE 505] WORKS SIMILARLY TO LAWYER-CLIENT PRIVILEGE APPLIES IN BOTH CIVIL AND CRIMINAL CASES MAIN ISSUE TODAY IS: WHAT ORGANIZATIONS ARE “RELIGIONS”?
2019 Chap. 12 -- Privileges 39 TRADE SECRET TEXAS RULE 507 ONLY A QUASI-PRIVILEGE COURT CAN OVERRIDE IT IF MAINTAINING THE PRIVILEGE WOULD “WORK INJUSTICE” PRETTY EASY TO BREAK TODAY, WITH PROTECTIVE ORDER
2019 Chap. 12 -- Privileges 40 PHYSICIAN-PATIENT PRIVILEGE [TEXAS RULE 509] NO PRIVILEGE IN CRIMINAL CASES IN TEXAS
2019 Chap. 12 -- Privileges 41 PHYSICIAN-PATIENT PRIVILEGE [TEXAS RULE 509] ALMOST NONEXISTENT EVEN IN CIVIL CASES, DUE TO EXCEPTION (e)(4) OF THE RULE: NO PRIVILEGE WHERE THE PATIENT’S CONDITION IS PART OF A PARTY’S CLAIM OR DEFENSE MAY APPLY IN IMPEACHMENT SITUATIONS
2019 Chap. 12 -- Privileges 42 MENTAL HEALTH PROFESSIONALS [TEXAS RULE 510] NO PRIVILEGE IN CRIMINAL CASES IN CIVIL CASES: TRACKS THE DOCTOR-PATIENT RULE INCLUDES DRUG-ABUSE WORKERS SAME LARGE EXCEPTION
2019 Chap. 12 -- Privileges 43 PARTY’S WORK PRODUCT [FED. R. CIV. P. 26 (b)(3)] IS NOT A PRIVILEGE, BUT SOMEWHAT LIKE ONE PARTY’S MATERIALS PREPARED IN ANTICIPATION OF LITIGATION, OR FOR TRIAL, ARE COVERED LAWYER STUFF IS A BIG PART OF IT, BUT NOT ALL OF IT CAN BE (AND OFTEN IS) OVERRIDDEN BY A SHOWING OF NEED
2019 Chap. 12 -- Privileges 44 MENTAL IMPRESSIONS OF COUNSEL ARE USUALLY MASKED OUT [SEE NEXT SLIDE] >>>
2019 Chap. 12 -- Privileges 45 TEX. R. CIV. P. 192 IS SIMILAR TO FED. PRACTICE: COUNSEL IMPRESSIONS ARE CALLED “CORE” WORK PRODUCT, GENERALLY BLOCKED THE REST IS CALLED “OTHER WORK PRODUCT” AND CAN BE HAD BY SHOWING “SUBSTANTIAL NEED” LWYR MEMO TO FILE IS WORK PRODUCT, NOT PRIVILEGED; BUT CAN CONTAIN “CORE” INFO
2019 Chap. 12 -- Privileges 46 UNSETTLED WHETHER WORK PRODUCT HAS PROTECTION IN CRIMINAL CASES 3 COURTS OF APPEALS HAVE SAID YES. SEE, e.g., WRIGHT v. STATE, 374 S.W. 3d 564 (Tex. App. Houston [14 th ] 2012) IF NO PROTECTION, PROCEDURE WOULD LIKELY BE: GRAND JURY SUBPOENA
PROBLEMS/CASESTrammel12G Montgomery 12HGriffin12I [cont’d >>>] 2019 Chap. 12 -- Privileges 47
PROBLEMS/CASES (cont’d)12JDoe 2019 Chap. 12 -- Privileges 48
2019 Chap. 12 -- Privileges 49 JOURNALIST’S PRIVILEGE FEDERAL CASE LAW CREATES A QUASI-PRIVILEGE: MUST EXHAUST OTHER POSSIBLE AVENUES OF EVIDENCE FIRST TEXAS HAS A STATUTE CREATING THIS PRIVILEGE >>>
2019 Chap. 12 -- Privileges 50 JOURNALIST’S PRIVILEGE IN CIVIL CASES Tex. Civ. Prac. & Rems. Code §22.021 COVERS PERSONS WHO DO NEWS GATHERING OR DISSEMINATION FOR A SUBSTANTIAL PORTION OF THEIR LIVELIHOOD, OR FOR SUBSTANTIAL FINANCIAL GAIN ALSO COVERS THEIR EMPLOYER COMPANIES ALSO COVERS UNIVERSITY SCHOLARS AND RESEARCHERS BUT NOT OTHER AMATEUR BLOGGERS
2019 Chap. 12 -- Privileges 51 THE PRIVILEGE HAS TWO PRONGS: TO REFUSE TO DISCLOSE ANY INFORMATION COLLECTED IN THAT CAPACITY, WHETHER OR NOT CONFIDENTIAL TO REFUSE TO DISCLOSE SOURCES PUBLICATION OF THE COLLECTED INFORMATION BY A NEWS MEDIUM IS NOT A WAIVER
2019 Chap. 12 -- Privileges 52 LIMITS: COURT CAN ORDER DISCLOSURE BY JOURNALIST IF: NO OTHER WAY TO OBTAIN THE EVIDENCE; SUBPOENA IS NARROWLY DRAFTED; and INTEREST OF JUSTICE OUTWEIGHS PUBLIC INTEREST IN NEWS FLOW THE NEWS ARTICLE, BROADCAST, ETC., ITSELF IS NOT PRIVILEGED WILL BE ADMISSIBLE IF COMPLIANT WITH THE OTHER RULES OF EVIDENCE, ESPECIALLY HEARSAY USUALLY IS OBJECTIONABLE ON HEARSAY GROUND
2019 Chap. 12 -- Privileges 53 JOURNALIST’S PRIVILEGE IN TEXAS CRIMINAL CASES TEX. CODE. CRIM. PROC. ART. 38.11 SIMILAR TO THE CIVIL PRIVILEGE, EXCEPT: NO SOURCE PRIVILEGE IF: A FELONY IS COMMITTED IN JOURNALIST’S PRESENCE, AND NO OTHER WAY TO PROVE IT; or SOURCE ADMITTED COMMISSION OF A FELONY, AND NO OTHER WAY TO PROVE IT; or
2019 Chap. 12 -- Privileges 54 PROBABLE CAUSE EXISTS THAT SOURCE COMMITTED A FELONY, AND NO OTHER WAY TO PROVE IT; or INFO WAS OBTAINED BY BREACH OF GRAND JUROR’S DUTY OF SECRECY; or DISCLOSURE OF SOURCE IS NEEDED TO PROTECT LIFE OR PREVENT SERIOUS BODILY HARM
2019 Chap. 12 -- Privileges 55 INFORMATION OTHER THAN SOURCE CRIMINAL RULE TRACKS THE CIVIL RULE JUDGE CAN ORDER DISCLOSURE IF NECESSARY AND NARROWLY TAILORED E.G., MUST HAVE INDEPENDENT EVIDENCE THAT A CRIME HAS OCCURRED
2019 Chap. 12 -- Privileges 56 ABROGATION OF NEARLY ALL PRIVILEGES IN CHILD-ABUSE CASES TEX. FAM. CODE §261.202 ALL PRIVILEGES VANISH IN PROCEEDINGS “REGARDING THE ABUSE OR NEGLECT OF A CHILD,” EXCEPT : ATTORNEY-CLIENT PRIVILEGE MAIN PURPOSE OF ABROGATION: TO BLOCK BOTH SPOUSES’ MARITAL COMMUNICATION PRIVILEGES [Cf. R. 504]