Time for another kudos to Scott Henson at his Grits for Breakfast blog. Texas Court of Criminal Appeals Judge Cathy Cochran sought out Grits to weigh in on the deletion of the “special rule of privilege in criminal cases” currently found in Rule 503(b)(2) of the Texas Rules of Evidence. It gives a criminal defendant the right to prevent his lawyer or his lawyer’s assistant “from disclosing any other fact which came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney-client relationship.” Before going further, it should be said that Judge Cochran made it a point to note that she was posting “not as a judge on the Court of Criminal Appeals, but as an attorney who has studied and written about our rules of evidence for 25 years.” Duly noted, your honor.
Pursuant to the CCA’s March 4, 2008 order, the deletion will take effect September 1, 2008, unless public comments made on or before June 30th persuade the CCA to take a different approach.
The pending change has stirred up a bit of controversy.
According to Judge Cochran’s post, UT’s Professor Stephen Goode has called the special rule of privilege “a ‘deceptive little sentence’ which is confusing, misleading, and does not have any known independent meaning.” In Judge Cochran’s own words, “the deletion was intended to eliminate a vestigial tail that had no wag to it.” Very generally speaking, they take the position that the special rule is no longer meaningful because there haven’t been any recent appellate cases relying on it.
Richard Anderson, the Federal Public Defender for the Northern District of Texas wrote this letter asking that the provision be retained. He turns the lack of appellate cases argument on its head. In his view, there aren’t any cases because the current rule is so clear — when “[f]aced with a black letter admonition that clearly covers a privilege that encompasses both privileged communications and work product, the reasonable prosecutor pursues other avenues of investigation other than attempting to penetrate the privilege.” The Texas Criminal Defense Lawyer’s Association also favors keeping the provision.
Judge Cochran’s rebuttal is that any concerns about an erosion of the work product privilege can be addressed by a new work product rule that would apply to both the defense and the prosecution.
My view: I’m for streamlined writing and efficient machines, but once words are put into operation as law or rule, fine tuning those operations on the fly is no longer a matter of clean blueprint draftsmanship. Instead, it’s more akin to working under the hood of a NASCAR vehicle as it circles the track. With that in mind: 1. If it ain’t broke, don’t fix it. 2. What’s the rush? After all, another side of the “no recent cases” argument is that there are no troubled waters to be stilled. Which leads to … 3. Unintended consequences/Newton’s Third Law/Strategic Uncertainty. If you set about to destroy something that you say really isn’t there but others say is, you are destroying the equilibrium surrounding the uncertainty and creating the need for a new equilibrium to account for a new and now demonstrably certain vacuum. Judge Cochran’s rebuttal acknowledges that a new equilibrium will need to be created around the vacuum. But at the moment, nobody can say what that equilibrium will be. So, 4. let’s not jump out of the frying pan into the fire. Unless and until there is agreement that the post-vacuum equilibrium will be better than what we’ve got now, maybe the best thing to do would be to postpone the deletion of the “rule of special privilege.” Doing anything else has the feel of taking away the defense bar’s chips before everyone sits down at the table.