Transcript TEXAS STATUTES ON PRIVILEGES

TEXAS STATUTES ON
PRIVILEGES
P. JANICKE
2010
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:
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
• 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
• 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)
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
– 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
• 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
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