1. CHAP. 12 : PRIVILEGES Prof. JANICKE FALL 2015

2. 2015Chap. 12 -- Privileges2 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 RELEVANT –EVEN THOUGH CRUCIAL –EVEN THOUGH NO PREJUDICE UNDER R403

3. 2015Chap. 12 -- Privileges3 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

4. FEDERAL STANDARDS ON PRIVILEGES NO RULES WERE ACTUALLY ENACTED THE U.S. JUDICIAL CONFERENCE PROPOSED THE 500-SERIES OF RULES, BUT THEY DID NOT MAKE IT THROUGH CONGRESS 2015Chap. 12 -- Privileges4

5. 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] 2015Chap. 12 -- Privileges5

6. TURN TO TEXAS RULES ON PRIVILEGES 2015Chap. 12 -- Privileges6

7. TEXAS RULE ON ATTORNEY-CLIENT PRIVILEGE RULE 503 2015Chap. 12 -- Privileges7

8. 2015Chap. 12 -- Privileges8 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

9. 2015Chap. 12 -- Privileges9 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

10. 2015Chap. 12 -- Privileges10 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

11. 2015Chap. 12 -- Privileges11 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

12. 2015Chap. 12 -- Privileges12 UNKNOWN EAVESDROPPER NO EFFECT –APPARENT CONFIDENTIALITY IS ENOUGH –SOME OLDER CASES CONTRA EAVESDROPPERS CAN BE ENJOINED TO MAINTAIN SILENCE

13. 2015Chap. 12 -- Privileges13 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!”

14. 2015Chap. 12 -- Privileges14 MOST MODERN DECISIONS SHORTEN THE ANALYSIS AND SAY THE PRIVILEGE COVERS BOTH WAYS

15. 2015Chap. 12 -- Privileges15 THE CLIENT “OWNS” THE PRIVILEGE, MEANING: 1.SHE CAN DECIDE WHETHER OR NOT TO BLOCK DISCLOSURE IN COURT 2.SHE CAN DECIDE WHICH OF LAWYER’S HELPERS, OR HER OWN HELPERS, SHOULD SEE IT

16. 2015Chap. 12 -- Privileges16 THE PROBLEM OF WAIVER ONLY THE CLIENT OR HIS REPRESENTATIVE (WHO IS OFTEN THE LAWYER) CAN WAIVE WAIVES BY ACTING: –BY DISCLOSURE; or –PERSONALLY AUTHORIZES DISCLOSURE OF THE COMMUNICATION; or –AUTHORIZES AN AGENT TO DECIDE ON DISCLOSURE OF THE COMMUNICATION WAIVES BY IMPLICATION: –LAWYER FOR A LITIGANT IS USUALLY PRESUMED TO HAVE AUTHORITY TO WAIVE, UNLESS FACTS SHOW OTHERWISE

17. 2015Chap. 12 -- Privileges17 CLIENT DECIDES LAWYER MUST HONOR THE CLIENT’S WAIVER INSTRUCTION –EVEN IF EMBARRASSING TO THE LAWYER –THIS IS A RESULT OF CLIENT “OWNING” THE PRIVILEGE

18. 2015Chap. 12 -- Privileges18 WAIVER BY CONDUCT: HALF-OPEN DOOR RULE –REVEALING PARTS IN TESTIMONY –REVEALING ONE OPINION BUT ASSERTING PRIVILEGE ON OTHERS ON SAME TOPIC WAIVER BY PRODUCING IN LITIGATION R. 502 –CODIFIES THE HALF-OPEN RULE –OTHER COMMUNICATIONS THAT OUGHT “IN FAIRNESS” TO BE CONSIDERED WITH WAIVED ITEM

19. WAIVER: AFFIRMATIVE USE OF COUNSEL OPINIONS USING LAWYER’S ADVICE TO GET A BENEFIT IN COURT –IS AN INVOLUNTARY WAIVER –E.G., MENTIONING AN OPINION OF COUNSEL, TO SHOW GOOD FAITH OR LACK OF FRAUD LAWYER CAN THEN BE DEPOSED, MUST ANSWER RE. THE WHOLE TOPIC OTHER LAWYERS’ OPINIONS ON THE TOPIC ARE ALSO WAIVED 2015Chap. 12 -- Privileges19

20. 2015Chap. 12 -- Privileges20 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

21. MAY BE SOME RELIEF FROM THIS “SPREADING STAIN” OF WAIVER, IF ACCIDENTAL –COURT ORDER ON THIS IS BINDING –PARTIES’ AGREEMENT IS BINDING, AT LEAST FOR THIS CASE 2015Chap. 12 -- Privileges21

22. TEXAS RULE 503 WALK THROUGH ALL PHRASES OF THIS RULE -- 2015Chap. 12 -- Privileges22

23. PROBLEMS/CASES 12A 12B 12C Meredith 12D Suburban Upjohn Osterhoudt (cont’d) 2015Chap. 12 -- Privileges23

24. PROBLEMS/CASES Zolin 12E 2015Chap. 12 -- Privileges24

25. MORE TEXAS RULES OF EVIDENCE

26. 2015Chap. 12 -- Privileges26 TWO MARITAL PRIVILEGES [TEXAS RULE 504] 1.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

27. 2015Chap. 12 -- Privileges27 EXCEPTIONS ACTIONS BETWEEN THE SPOUSES CRIMINAL CASE WHERE ALLEGED VICTIM WAS THE LISTENING SPOUSE, OR A MINOR CHILD SEVERAL OTHER EXCEPTIONS SEE TEXAS R. EV. 504

28. 2015Chap. 12 -- Privileges28 EXAMPLE HUSBAND: “LOOK HERE, HONEY, AT ALL THIS MONEY I ROBBED FROM THE BANK!” IF EX-WIFE BECOMES A TRIAL WITNESS: 1.SHE CAN BE COMPELLED TO TESTIFY TO SEEING MONEY DUMPED BY HUSBAND ON THE BED, but 2.HUSBAND CAN PREVENT EX-WIFE FROM TESTIFYING TO WHAT HE SAID

29. 2015Chap. 12 -- Privileges29 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 ENDS WITH DIVORCE DOES NOT APPLY WHERE WITNESS- SPOUSE IS THE ALLEGED VICTIM

30. 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 2015Chap. 12 -- Privileges30

31. 2015Chap. 12 -- Privileges31 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

32. 2015Chap. 12 -- Privileges32 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

33. 2015Chap. 12 -- Privileges33 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 -- >>

34. 2015Chap. 12 -- Privileges34 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

35. 2015Chap. 12 -- Privileges35 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

36. 2015Chap. 12 -- Privileges36 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

37. 2015Chap. 12 -- Privileges37 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”?

38. 2015Chap. 12 -- Privileges38 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

39. 2015Chap. 12 -- Privileges39 PHYSICIAN-PATIENT PRIVILEGE [TEXAS RULE 509] NO PRIVILEGE IN CRIMINAL CASES IN TEXAS

40. 2015Chap. 12 -- Privileges40 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

41. 2015Chap. 12 -- Privileges41 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

42. 2015Chap. 12 -- Privileges42 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

43. 2015Chap. 12 -- Privileges43 MENTAL IMPRESSIONS OF COUNSEL ARE USUALLY MASKED OUT [SEE NEXT SLIDE] >>>

44. 2015Chap. 12 -- Privileges44 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

45. 2015Chap. 12 -- Privileges45 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

46. PROBLEMS/CASES [Trammel] -- delete 12G Montgomery 12H Griffin 12I[cont’d >>>] 2015Chap. 12 -- Privileges46

47. PROBLEMS/CASES (cont’d) 12J Doe 2015Chap. 12 -- Privileges47

48. 2015Chap. 12 -- Privileges48 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>>>

49. 2015Chap. 12 -- Privileges49 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

50. 2015Chap. 12 -- Privileges50 THE PRIVILEGE HAS TWO PRONGS: 1.TO REFUSE TO DISCLOSE ANY INFORMATION COLLECTED IN THAT CAPACITY, WHETHER OR NOT CONFIDENTIAL 2.TO REFUSE TO DISCLOSE SOURCES PUBLICATION OF THE COLLECTED INFORMATION BY A NEWS MEDIUM IS NOT A WAIVER

51. 2015Chap. 12 -- Privileges51 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

52. 2015Chap. 12 -- Privileges52 JOURNALIST’S PRIVILEGE IN TEXAS CRIMINAL CASES TEX. CODE. CRIM. PROC. ART. 38.11 SIMILAR TO THE CIVIL PRIVILEGE, EXCEPT: NO SOURCE PRIVILEGE IF: 1. A FELONY IS COMMITTED IN JOURNALIST’S PRESENCE, AND NO OTHER WAY TO PROVE IT; or 2. SOURCE ADMITTED COMMISSION OF A FELONY, AND NO OTHER WAY TO PROVE IT; or

53. 2015Chap. 12 -- Privileges53 3.PROBABLE CAUSE EXISTS THAT SOURCE COMMITTED A FELONY, AND NO OTHER WAY TO PROVE IT; or 4.INFO WAS OBTAINED BY BREACH OF GRAND JUROR’S DUTY OF SECRECY; or 5.DISCLOSURE OF SOURCE IS NEEDED TO PROTECT LIFE OR PREVENT SERIOUS BODILY HARM

54. 2015Chap. 12 -- Privileges54 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

55. 2015Chap. 12 -- Privileges55 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]