CHAP 12 PRIVILEGES Prof JANICKE FALL 2018 DEFINITION
- Slides: 55
CHAP. 12 : PRIVILEGES Prof. JANICKE FALL 2018
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 R 403 2018 Chap. 12 -- Privileges 2
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 2018 Chap. 12 -- Privileges 3
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 2018 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] 2018 Chap. 12 -- Privileges 5
TURN TO TEXAS RULES ON PRIVILEGES 2018 Chap. 12 -- Privileges 6
TEXAS RULE ON ATTORNEY-CLIENT PRIVILEGE • RULE 503 2018 Chap. 12 -- Privileges 7
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 2018 Chap. 12 -- Privileges 8
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 2018 Chap. 12 -- Privileges 9
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 2018 Chap. 12 -- Privileges 10
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 2018 Chap. 12 -- Privileges 11
UNKNOWN EAVESDROPPER • NO EFFECT – APPARENT CONFIDENTIALITY IS ENOUGH – SOME OLDER CASES CONTRA • EAVESDROPPERS CAN BE ENJOINED TO MAINTAIN SILENCE 2018 Chap. 12 -- Privileges 12
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!” 2018 Chap. 12 -- Privileges 13
• MOST MODERN DECISIONS SHORTEN THE ANALYSIS AND SAY THE PRIVILEGE COVERS BOTH WAYS 2018 Chap. 12 -- Privileges 14
THE CLIENT “OWNS” THE PRIVILEGE, MEANING: 1. ONLY SHE CAN DECIDE WHETHER OR NOT TO BLOCK DISCLOSURE IN COURT, i. e. , TO WAIVE THE PRIVILEGE 2. ONLY SHE CAN DECIDE WHICH OF LAWYER’S HELPERS, OR HER OWN HELPERS, SHOULD LEARN THE COMMUNICATION 2018 Chap. 12 -- Privileges 15
THE PROBLEM OF WAIVER • ONLY THE CLIENT OR HIS REPRESENTATIVE (WHO IS OFTEN THE LAWYER) CAN WAIVE • CLIENT CAN WAIVE BY ACTING: – BY DISCLOSURE; or – AUTHORIZING DISCLOSURE OF THE COMMUNICATION; or – AUTHORIZING AN AGENT TO DECIDE ON DISCLOSURE OF THE COMMUNICATION • CLIENT’S AUTHORIZATION TO WAIVE CAN BE IMPLICIT: 2018 – LAWYER FOR A LITIGANT IS USUALLY PRESUMED TO HAVE AUTHORITY TO WAIVE, UNLESS FACTS SHOW OTHERWISE Chap. 12 -- Privileges 16
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 2018 Chap. 12 -- Privileges 17
• 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 2018 Chap. 12 -- Privileges 18
“INVOLUNTARY” WAIVER: AFFIRMATIVE USE OF COUNSEL OPINIONS • USING LAWYER’S ADVICE TO GET A BENEFIT IN COURT – IS AN INVOLUNTARY WAIVER – E. G. , TESTIFYING TO 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 2018 Chap. 12 -- Privileges 19
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 2018 Chap. 12 -- Privileges 20
• SOME RELIEF FROM THIS “SPREADING STAIN” OF WAIVER, IF REVELATION IS ACCIDENTAL: – A COURT ORDER ON THIS IS BINDING – PARTIES’ AGREEMENT IS BINDING, AT LEAST FOR THIS CASE 2018 Chap. 12 -- Privileges 21
TEXAS RULE 503 • WALK THROUGH ALL PHRASES OF THIS RULE -- 2018 Chap. 12 -- Privileges 22
PROBLEMS/CASES • • 12 A 12 B 12 C Meredith 12 D Suburban Upjohn Osterhoudt 2018 (cont’d) Chap. 12 -- Privileges 23
PROBLEMS/CASES • Zolin • 12 E 2018 Chap. 12 -- Privileges 24
MORE TEXAS RULES OF EVIDENCE
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 2018 Chap. 12 -- Privileges 26
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 2018 Chap. 12 -- Privileges 27
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 28 2018 Chap. 12 -- Privileges
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 WITNESSSPOUSE IS THE ALLEGED VICTIM 2018 Chap. 12 -- Privileges 29
• 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 2018 Chap. 12 -- Privileges 30
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 2018 Chap. 12 -- Privileges 31
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 2018 Chap. 12 -- Privileges 32
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 -- >> 2018 Chap. 12 -- Privileges 33
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 2018 Chap. 12 -- Privileges 34
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 2018 Chap. 12 -- Privileges 35
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 2018 Chap. 12 -- Privileges 36
CLERGYMAN-PENITENT [TEXAS RULE 505] • WORKS SIMILARLY TO LAWYERCLIENT PRIVILEGE • APPLIES IN BOTH CIVIL AND CRIMINAL CASES • MAIN ISSUE TODAY IS: WHAT ORGANIZATIONS ARE “RELIGIONS”? 2018 Chap. 12 -- Privileges 37
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 2018 Chap. 12 -- Privileges 38
PHYSICIAN-PATIENT PRIVILEGE [TEXAS RULE 509] • NO PRIVILEGE IN CRIMINAL CASES IN TEXAS 2018 Chap. 12 -- Privileges 39
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 2018 Chap. 12 -- Privileges 40
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 2018 Chap. 12 -- Privileges 41
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 2018 Chap. 12 -- Privileges 42
• MENTAL IMPRESSIONS OF COUNSEL ARE USUALLY MASKED OUT [SEE NEXT SLIDE] >>> 2018 Chap. 12 -- Privileges 43
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 2018 Chap. 12 -- Privileges 44
• 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. 3 d 564 (Tex. App. Houston [14 th] 2012) • IF NO PROTECTION, PROCEDURE WOULD LIKELY BE: GRAND JURY SUBPOENA 2018 Chap. 12 -- Privileges 45
PROBLEMS/CASES • • • Trammel 12 G Montgomery 12 H Griffin 12 I [cont’d >>>] 2018 Chap. 12 -- Privileges 46
PROBLEMS/CASES (cont’d) • 12 J • Doe 2018 Chap. 12 -- Privileges 47
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 >>> 2018 Chap. 12 -- Privileges 48
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 2018 Chap. 12 -- Privileges 49
• 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 2018 Chap. 12 -- Privileges 50
• 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 2018 Chap. 12 -- Privileges 51
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 2018 Chap. 12 -- Privileges 52
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 2018 Chap. 12 -- Privileges 53
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 2018 Chap. 12 -- Privileges 54
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] 2018 Chap. 12 -- Privileges 55
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