P. JANICKE
FALL 2011

• 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
2011 Chap. 12 -- Privileges 2

• TO FURTHER SOME SOCIETAL
GOAL
• REFLECTS HUMANKIND’S EFFORT
TO CIVILIZE ITSELF
2011 Chap. 12 -- Privileges 3

• A PERSON WHO CONSULTS A
LAWYER FOR THE PURPOSE OF
OBTAINING LEGAL ADVICE HAS A
PRIVILEGE TO BLOCK DISCLOSURE
OF WHAT THE PERSON OR THE
LAWYER SAID, IF THE
CIRCUMSTANCES WERE
APPARENTLY CONFIDENTIAL
2011 Chap. 12 -- Privileges 4

• THERE ARE NO EXCEPTIONS
BASED ON NEEDS OF THE OTHER
SIDE
– 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
2011 Chap. 12 -- Privileges 5

• 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
2011 Chap. 12 -- Privileges 6

• NO EFFECT ON THE PRIVILEGE
• NO RELATIONSHIP NEEDED
– SEE DEFINITION
2011 Chap. 12 -- Privileges 7

• NO EFFECT
– SEE DEFINITION : APPARENT
CONFIDENTIALITY IS ENOUGH
– SOME OLDER CASES CONTRA
• EAVESDROPPERS CAN BE
ENJOINED
2011 Chap. 12 -- Privileges 8

• TRADITIONALLY, ONLY WHAT THE
CLIENT SAID WAS PRIVILEGED
• HOWEVER, WHAT THE LAWYER
SAID USUALLY INHERENTLY
REVEALS WHAT THE CLIENT SAID,
AND IS CALLED DERIVATIVELY
PRIVILEGED
– E.G. : “HMMM! THEN YOU’RE GUILTY
OF MURDER!”
2011 Chap. 12 -- Privileges 9

• MOST MODERN DECISIONS
SHORTEN THE ANALYSIS AND SAY
THE PRIVILEGE COVERS BOTH
WAYS
2011 Chap. 12 -- Privileges 10

THE CLIENT “OWNS” THE
PRIVILEGE
• CAN DECIDE WHETHER OR NOT TO
BLOCK DISCLOSURE IN COURT
• CAN DECIDE WHICH OF LAWYER’S
HELPERS, IF ANY, SHOULD SEE IT
2011 Chap. 12 -- Privileges 11

• ONLY BY THE CLIENT OR HIS REPRESENTATIVE
(WHO IS OFTEN THE LAWYER)
• EXPRESSLY WAIVES
– PERSONALLY AUTHORIZES DISCLOSURE OF
THE COMMUNICATION
– AUTHORIZES AGENT TO DISCLOSE THE
COMMUNICATION
• WAIVES BY CONDUCT
– REVEALS THE COMMUNICATION TO OTHERS
“OUTSIDE THE FAMILY”
– HANDS OVER DOCUMENTS CONTAINING THE
COMMUNICATION
2011 Chap. 12 -- Privileges 12

• WAIVER BY CONDUCT: HALF-OPEN
DOOR RULE
– REVEALING PARTS IN TESTIMONY
– RELYING ON “ADVICE OF COUNSEL”
TO DEFEAT CERTAIN REMEDIES
– REVEALING ONE OPINION BUT
ASSERTING PRIVILEGE ON OTHERS
ON SAME TOPIC
• NEW RULE 502
– CODIFIES THE HALF-OPEN RULE
– OUGHT “IN FAIRNESS” TO BE
CONSIDERED WITH WAIVED ITEM
2011 Chap. 12 -- Privileges 13

• LAWYER MUST HONOR THE
CLIENT’S WAIVER INSTRUCTION
– EVEN IF EMBARRASSING TO THE
LAWYER
• A RESULT OF CLIENT “OWNING”
THE PRIVILEGE
2011 Chap. 12 -- Privileges 14

IMPACT OF WAIVER MADE IN A
FEDERAL CASE
• MAY OPERATE AS A WAIVER ON
OTHER PRIVILEGED
COMMUNICATIONS ON SAME
TOPIC, UP TO THE DATE OF THE
WAIVER
– IF THE TWO COMMUNICATIONS
OUGHT “IN FAIRNESS” TO BE
CONSIDERED TOGETHER
2011 Chap. 12 -- Privileges 15

IMPACT OF WAIVER: COMMON
LAW AND STATE RULE
• WAIVER AS TO ONE
COMMUNICATION WAIVES AS TO
ALL OTHER COMMUNICATIONS ON
THE SAME TOPIC, UP TO THE DATE
OF THE WAIVER
• TO PREVENT PICK-AND-CHOOSE
TACTIC
2011 Chap. 12 -- Privileges 16

[TEXAS RULE 504]
• MARITAL COMMUNICATIONS
– MADE DURING MARRIAGE UNDER
APPARENT PRIVACY CONDITIONS
– PRIVILEGE BELONGS TO THE
SPEAKING SPOUSE
– DOESN’T EXTEND TO
CONTEMPORANEOUS ACTIONS
– PRIVILEGE SURVIVES DIVORCE
2011 Chap. 12 -- Privileges 17

• ACTIONS BETWEEN THE SPOUSES
• CRIMINAL CASE WHERE ALLEGED
VICTIM WAS THE LISTENING
SPOUSE, OR A MINOR CHILD
• SEVERAL OTHER EXCEPTIONS
SEE
TEXAS EV. R. 504
2011 Chap. 12 -- Privileges 18

• “LOOK HERE, HONEY, AT ALL THIS
MONEY I ROBBED FROM THE
BANK!”
• IF EX-WIFE BECOMES A WITNESS:
– SHE CAN BE COMPELLED TO TESTIFY
TO SEEING MONEY DUMPED BY
HUSBAND ON THE BED
– HUSBAND CAN PREVENT EX-WIFE
FROM TESTIFYING TO WHAT HE SAID
2011 Chap. 12 -- Privileges 19

PRIVILEGE NOT TO BE CALLED
BY THE PROSECUTION
[TEX. RULE 504]
• BELONGS TO THE WITNESS- SPOUSE,
NOT THE ACCUSED SPOUSE
• ENDS WITH DIVORCE
• DOES NOT APPLY WHERE WITNESS-
SPOUSE IS VICTIM
2011 Chap. 12 -- Privileges 20

(AND MANY MOVIES)
• PRIVILEGE BELONGS TO THE
DEFENDANT SPOUSE
2011 Chap. 12 -- Privileges 21

PRIVILEGE AGAINST
COMPELLED
SELF-INCRIMINATION
• CAN’T BE REQUIRED TO TESTIFY
• CAN’T BE OBLIGED TO WRITE OUT A
CONFESSION
• BUT: IF A PERSON WRITES A DOCUMENT
ON HIS OWN INITIATIVE, THERE IS NO
PRIVILEGE; THE DOCUMENT CAN BE
SUBPOENAED, AND USED BY
PROSECUTION
2011 Chap. 12 -- Privileges 22

• THEY ARE CREATED VOLUNTARILY,
SO ARE NOT PROTECTED
• GIVING THEM TO A LAWYER WON’T
HELP
• BUT SOMETIMES, PRODUCING
THEM IN RESPONSE TO SUBPOENA
COULD HAVE EFFECT OF MAKING A
FORCED STATEMENT -- >>
2011 Chap. 12 -- Privileges 23

• SUBPOENA REQUESTING “ALL
BANK DEPOSIT SLIPS THAT
REFLECT DEPOSITS OF MONEY
MADE FROM DRUG SALES”
• THIS SHOULD BE QUASHED, SINCE
THE COMMAND IS PHRASED SUCH
THAT COMPLIANCE WOULD
AMOUNT TO A COMPELLED
STATEMENT
2011 Chap. 12 -- Privileges 24

• SUBPOENA COMMANDING
PRODUCTION OF “THE WEAPON
YOU USED IN THE MAY 15 MURDER”
• ACT OF COMPLIANCE IS
EQUIVALENT TO CONFESSION
• SHOULD BE QUASHED
2011 Chap. 12 -- Privileges 25

• PLAINTIFF INVOKING:
– IS APT TO BE NON-SUITED IN TEXAS
• CIVIL DEFENDANT INVOKING:
– WILL HAVE HEAVY NEGATIVE JUDICIAL
COMMENT FOR INVOKING 5 TH IN
TEXAS
• ALL OTHER PRIVILEGES ARE
UNMENTIONABLE
2011 Chap. 12 -- Privileges 26

[TEXAS RULE 505]
• WORKS SIMILARLY TO LAWYER-
CLIENT PRIVILEGE
• CIVIL AND CRIMINAL CASES
• MAIN ISSUE TODAY IS: WHAT
ORGANIZATIONS ARE RELIGIONS?
2011 Chap. 12 -- Privileges 27

• A QUASI-PRIVILEGE
• COURT CAN OVERRIDE IT IF
MAINTAINING THE PRIVILEGE
WOULD “WORK INJUSTICE”
• PRETTY EASY TO BREAK TODAY,
WITH PROTECTIVE ORDER
2011 Chap. 12 -- Privileges 28

[TEXAS RULE 509]
• NO SUCH PRIVILEGE IN CRIMINAL
CASES IN TEXAS
2011 Chap. 12 -- Privileges 29

[TEXAS RULE 509]
• ALMOST NONEXISTENT EVEN IN
CIVIL CASES, DUE TO EXCEPTION
(e)(4):
– NO PRIVILEGE WHERE THE PATIENT’S
CONDITION IS PART OF A PARTY’S
CLAIM OR DEFENSE
– [WHEN WOULD IT NOT BE, AND
RETAIN RELEVANCE ??]
2011 Chap. 12 -- Privileges 30

[TEXAS RULE 510]
• NO PRIVILEGE IN CRIMINAL CASES
• IN CIVIL CASES:
– TRACKS THE DOCTOR-PATIENT RULE
– INCLUDES DRUG-ABUSE WORKERS
– SAME GLARING EXCEPTION
2011 Chap. 12 -- Privileges 31

[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
• CAN BE (AND OFTEN IS)
OVERRIDDEN BY A SHOWING OF
NEED
2011 Chap. 12 -- Privileges 32

• BUT, MENTAL IMPRESSIONS OF
COUNSEL ARE MASKED OUT
2011 Chap. 12 -- Privileges 33

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”
• MEMO TO FILE IS WORK PRODUCT,
NOT PRIVILEGED; BUT LIKELY IS
“CORE”
2011 Chap. 12 -- Privileges 34

• WORK PRODUCT HAS NO
APPLICABILITY IN CRIMINAL CASES
– E.G., GRAND JURY SUBPOENA
OVERRIDES
2011 Chap. 12 -- Privileges 35

• FEDERAL CASE LAW CREATES A
QUASI-PRIVILEGE: MUST EXHAUST
OTHER POSSIBLE AVENUES OF
EVIDENCE FIRST
• TEXAS HAS A STATUTE CREATING
THIS PRIVILEGE:
2011 Chap. 12 -- Privileges 36

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
• COVERS THEIR EMPLOYER COMPANIES
• ALSO COVERS UNIVERSITY SCHOLARS
AND RESEARCHERS
2011 Chap. 12 -- Privileges 37

• THE PRIVILEGE:
– TO REFUSE TO DISCLOSE ANY
INFORMATION COLLECTED IN THAT
CAPACITY, WHETHER OR NOT
CONFIDENTIAL
– TO REFUSE TO DISCLOSE SOURCES
• PUBLICATION OF THE
INFORMATION BY A NEWS MEDIUM
IS NOT A WAIVER
2011 Chap. 12 -- Privileges 38

• LIMITS:
– COURT CAN ORDER DISCLOSURE BY
JOURNALIST IF:
• NO OTHER WAY TO OBTAIN THE EVIDENCE
• SUBPOENA IS NARROWLY DRAFTED
• 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)
2011 Chap. 12 -- Privileges 39

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
– NO SOURCE PRIVILEGE IF SOURCE
ADMITTED COMMISSION OF A FELONY, AND
NO OTHER WAY TO PROVE IT
– NO SOURCE PRIVILEGE IF PROBABLE
CAUSE EXISTS THAT SOURCE COMMITTED A
FELONY, AND NO OTHER WAY TO PROVE IT
2011 Chap. 12 -- Privileges 40

2011
– NO SOURCE PRIVILEGE IF INFO IS
OBTAINED BY BREACH OF GRAND
JUROR’S DUTY OF SECRECY
– NO SOURCE PRIVILEGE IF
DISCLOSURE OF SOURCE IS NEEDED
TO PROTECT LIFE OR PREVENT
SERIOUS BODILY HARM
Chap. 12 -- Privileges 41

• INFORMATION (OTHER THAN
SOURCE) PRIVILEGE:
– TRACKS THE CIVIL RULE
– JUDGE CAN ORDER DISCLOSURE IF
NECESSARY AND NARROWLY
TAILORED
• INTER ALIA, MUST HAVE INDEPENDENT
EVIDENCE THAT A CRIME HAS OCCURRED
2011 Chap. 12 -- Privileges 42

ABROGATION OF 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: TO BLOCK
MARITAL COMMUNICATION
PRIVILEGE
2011 Chap. 12 -- Privileges 43