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CHAP. 12 : PRIVILEGES. P. JANICKE FALL 2011. 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. PURPOSE. TO FURTHER SOME SOCIETAL GOAL - PowerPoint PPT Presentation
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CHAP. 12 :PRIVILEGES
P. JANICKE
FALL 2011
2011 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 RELEVANT– EVEN THOUGH CRUCIAL– EVEN THOUGH NO PREJUDICE UNDER
R403
2011 Chap. 12 -- Privileges 3
PURPOSE
• TO FURTHER SOME SOCIETAL GOAL
• REFLECTS HUMANKIND’S EFFORT TO CIVILIZE ITSELF
2011 Chap. 12 -- Privileges 4
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 OR THE LAWYER SAID, IF THE CIRCUMSTANCES WERE APPARENTLY CONFIDENTIAL
2011 Chap. 12 -- Privileges 5
HELL OR HIGH WATER
• 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 6
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
2011 Chap. 12 -- Privileges 7
WHERE LAWYER DECLINES THE REPRESENTATION
• NO EFFECT ON THE PRIVILEGE
• NO RELATIONSHIP NEEDED– SEE DEFINITION
2011 Chap. 12 -- Privileges 8
EAVESDROPPER
• NO EFFECT– SEE DEFINITION : APPARENT
CONFIDENTIALITY IS ENOUGH– SOME OLDER CASES CONTRA
• EAVESDROPPERS CAN BE ENJOINED
2011 Chap. 12 -- Privileges 9
BOTH SIDES OF CONVERSATION COVERED
• 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 10
• MOST MODERN DECISIONS SHORTEN THE ANALYSIS AND SAY THE PRIVILEGE COVERS BOTH WAYS
2011 Chap. 12 -- Privileges 11
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 12
WAIVER• 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 13
• 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 14
• 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 15
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 16
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 17
TWO MARITAL PRIVILEGES[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 18
EXCEPTIONS
• 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 19
EXAMPLE
• “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 20
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 21
MANY OTHER STATES(AND MANY MOVIES)
• PRIVILEGE BELONGS TO THE DEFENDANT SPOUSE
2011 Chap. 12 -- Privileges 22
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 23
THE PROBLEM OF FILES
• 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 24
EXAMPLE
• 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 25
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
2011 Chap. 12 -- Privileges 26
CIVIL CASES: JUDICIAL COMMENT ON
INVOKING THE 5TH• PLAINTIFF INVOKING:– IS APT TO BE NON-SUITED IN TEXAS
• CIVIL DEFENDANT INVOKING:–WILL HAVE HEAVY NEGATIVE
JUDICIAL COMMENT FOR INVOKING 5TH
IN TEXAS
• ALL OTHER PRIVILEGES ARE UNMENTIONABLE
2011 Chap. 12 -- Privileges 27
CLERGYMAN-PENITENT[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 28
TRADE SECRET
• 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 29
PHYSICIAN-PATIENT PRIVILEGE [TEXAS RULE 509]
• NO SUCH PRIVILEGE IN CRIMINAL CASES IN TEXAS
2011 Chap. 12 -- Privileges 30
PHYSICIAN-PATIENT PRIVILEGE [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 31
MENTAL HEALTH PROFESSIONALS
[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 32
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
• CAN BE (AND OFTEN IS) OVERRIDDEN BY A SHOWING OF NEED
2011 Chap. 12 -- Privileges 33
• BUT, MENTAL IMPRESSIONS OF COUNSEL ARE MASKED OUT
2011 Chap. 12 -- Privileges 34
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 35
• WORK PRODUCT HAS NO APPLICABILITY IN CRIMINAL CASES
– E.G., GRAND JURY SUBPOENA OVERRIDES
2011 Chap. 12 -- Privileges 36
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:
2011 Chap. 12 -- Privileges 37
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 38
• 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 39
• 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 40
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 41
– 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
2011 Chap. 12 -- Privileges 42
• 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 43
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