The Woodlands Criminal Defense Attorney - Texas Rules of Evidence RULES 512 & 513
Rule 512 is the do-over measure that allows for a claim of privilege when it was wrongfully compelled by a court or made without the opportunity to claim the privilege. This rule has been enforced to the level that a writ of mandamus may be granted because no adequate remedy is available through an appeal. Memorial Hospital The Woodlands v. McCown, 927 S.W.2d 1, 12 (Tex. 1996).
Be careful however because in Ex Parte Lipscomb an attorney refused to testify about a former client who was a party in civil litigation and the attorney was held in contempt. The contempt was upheld on the attorney's habeas motion because the client and not the attorney could assert the privilege.
Probably the most interesting case on this topic is Burnett v. State, 642 S.W.2d 765 (Tex. Crim. App. 1982). In Burnett the defendant was convicted of capital murder and the defense attorney had a hypnotist interview the defendant about the facts of the offense and the question was if the statements made to the hypnotist were protected by attorney client privilege. "Appellant contends the trial court erred by admitting a tape recorded conversation between her and James Michael Boulch, a hypnotist hired by her attorneys, over her objection that such admission was in violation of the attorney-client privilege and Article 38.10, V.A.C.C.P." The Court held that the disclosure of the tape by the attorney to investigators did not defeat the privilege because the client and not the attorney was the privilege holder. And thus Burnett holds that attorneys can employ hypnotists and they will be considered agents of the attorney.
Rule 513 gives power to the assertion of a privilege by disallowing inference or comment about the invocation of the privilege. What good would a privilege be if the opposing counsel could insinuate that all the jury's worst fears are contained within the privileged communication? Why is this rule even necessary . . . ? Because lawyers will find a way to make their argument. I can imagine other lawyers reading this post now thinking of ways to insinuate a comment on this without really "commenting."
Of course Rule 513 has a big exception. In a civil case you can comment on the claim of the 5th amendment privilege against self-incrimination. In McInnis v. State a defendant was called to the witness stand in a disbarment proceeding against his former attorney and forced to invoke his 5th amendment privilege. Rule 513's section (c) adopts this Court of Appeals Decision as part of the rules. McInnis, 618 S.W.2d 389 (Tex. App. -- Beaumont 1981).
Rule 512. Privileged Matter Disclosed Under Compulsion or Without Opportunity to Claim Privilege A privilege claim is not defeated by a disclosure that was:
(a) compelled erroneously; or
(b) made without opportunity to claim the privilege.
Rule 513. Comment On or Inference From a Privilege Claim; Instruction
(a) Comment or Inference Not Permitted. Except as permitted in Rule 504(b)(2), neither the court nor counsel may comment on a privilege claim—whether made in the present proceeding or previously—and the factfinder may not draw an inference from the claim.
(b) Claiming Privilege Without the Jury’s Knowledge. To the extent practicable, the court must conduct a jury trial so that the making of a privilege claim is not suggested to the jury by any means.
(c) Claim of Privilege Against Self-Incrimination in a Civil Case. Subdivisions (a) and (b) do not apply to a party’s claim, in the present civil case, of the privilege against self-incrimination.
(d) Jury Instruction. When this rule forbids a jury from drawing an inference from a privilege claim, the court must, on request of a party against whom the jury might draw the inference, instruct the jury accordingly.
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