Testimonial Privileges

Question 1

What are the 2 basic applications of spousal privilege?

Answer 1

1. Confidential marital communication privilege

2. Privilege not to testify in a criminal case.

Question 2

Describe the rule regarding confidential communications between spouses

Answer 2

1. Spouses are prohibited from testifying about confidential communications over objections of other in criminal and civil cases.
2. Privilege applies even after marriage terminates

Question 3

What are the exceptions to confidential communications between spouses rule?

Answer 3

1. disclosure made to enable/aid committing crim/fraud
2. communication relevant to civil action between spouses/or criminal action involving violence against spouse/child/any member of home/bigamy
3. proceedings between surviving spouse and person who claims through the spouse
4. Committal or competency proceedings for either spouse.

Question 4

Describe the privilege not to testify in a criminal case (spousal)

Answer 4

the husband and wife must still be married at the time testimony offered, but if the spouse chooses to testify, the D cannot stop her

Question 5

What are the exceptions to the privilege not to testify in a criminal case (spousal)?

Answer 5

1. D charged with crime against spouse
2. Crime against minor
3. Crime against any other member of household
4. Bigamy

Question 6

Can the privilege not to testify in a criminal case (spousal) be waived?

Answer 6

Yes, such as when a party acquiesces in the receipt of testimony regarding confidential communications

Question 7

Do the Physician-Patient & Mental Health Professional Privilege exist in criminal cases?

Answer 7

NO. Only similar privilege is privilege between criminal D and drug rehab worker IF D sought rehab voluntarily, or court ordered.

Question 8

In civil cases, what are the exceptions to the Physician -Patient and Mental Health Professional Privilege?

Answer 8

1. Discipline against the physician
2. When patient consented to disclosure
3. Claim between the parties
4. Civil commitment action against the patient

Question 9

Describe the Clergy Privilege

Answer 9

Communications with clergy when clergy acts as spiritual advisor are privileged.

Question 10

Does atty/client privilege extend to individuals in atty’s employ?

Answer 10

YES. Note - though accountant-client privilege abolished in TX, if accountant is acting as agent of atty - privileged

Question 11

What is the Informant Identity Provision?

Answer 11

If there is an action that is related to information that came to the govt through a confidential source. The govt has a privilege not to disclose the actual identity of the whistleblower.
N.B - Can be claimed by law enforcement agent the whistleblower came to, but not over objection of a prosecutor

Question 12

What are the exceptions to the Informant Identity provision?

Answer 12

1. Information voluntarily disclosed by informant/govt to someone likely to be resentful of the communication
2. When informant appears as witness for a public entity
3. when the court determines there’s a reasonable probability the informant’s testimony necessary to a fair resolution of the issue.