TX Bar Evidence 3 — Questions and Answers
Question 1: Under Texas law, the holder of the attorney-client privilege is:
- The attorney, who controls assertion and waiver
- The client, who may assert or waive the privilege (Correct answer)
- Both attorney and client must jointly agree to waive
- The court, which determines privilege on a case-by-case basis
Correct answer: The client, who may assert or waive the privilege
The attorney-client privilege belongs to the client, who is the holder and has sole authority to waive or assert it.
Question 2: The spousal testimonial privilege in Texas permits a spouse to refuse to testify against the other spouse in:
- Any civil or criminal proceeding
- Criminal proceedings only (Correct answer)
- Civil proceedings only
- Divorce or family law proceedings only
Correct answer: Criminal proceedings only
The spousal testimonial privilege in Texas applies in criminal proceedings, allowing a witness-spouse to refuse to testify against the defendant-spouse.
Question 3: Authentication of a document under TRE 901 requires:
- A notarized attestation by the document's author
- Evidence sufficient to support a finding that the item is what the proponent claims (Correct answer)
- Proof beyond a reasonable doubt of the document's genuineness
- Corroborating testimony from at least two witnesses
Correct answer: Evidence sufficient to support a finding that the item is what the proponent claims
TRE 901 sets a low threshold — the proponent need only produce evidence sufficient to support a finding of genuineness.
Question 4: Which of the following is self-authenticating under TRE 902?
- A handwritten letter signed by a fact witness
- An official publication of a state government agency (Correct answer)
- A business email printed by a company employee
- A screenshot of a social media post
Correct answer: An official publication of a state government agency
Official publications of government agencies are self-authenticating under TRE 902(5), requiring no extrinsic foundational evidence.
Question 5: Under Texas law, which communication falls OUTSIDE the physician-patient privilege?
- Confidential statements to a treating physician about symptoms
- Medical records shared with a consulting specialist
- Records of a court-ordered psychiatric examination (Correct answer)
- A patient's statement about the cause of injury made for treatment
Correct answer: Records of a court-ordered psychiatric examination
Records from a court-ordered examination are not privileged because confidentiality is not the premise of such an examination.
Question 6: The work product doctrine primarily protects:
- All confidential communications between attorney and client
- Materials prepared by an attorney or representative in anticipation of litigation (Correct answer)
- Routine business records of a law firm
- Attorney fee agreements and retainer letters
Correct answer: Materials prepared by an attorney or representative in anticipation of litigation
The work product doctrine shields materials prepared by an attorney or their representative in anticipation of litigation or for trial preparation.
Question 7: Under Texas law, waiver of the attorney-client privilege occurs when:
- The attorney discusses the case with co-counsel or a paralegal
- The client voluntarily discloses the communication to a third party outside the privilege (Correct answer)
- The client dies, terminating the privilege automatically
- The attorney withdraws from the representation
Correct answer: The client voluntarily discloses the communication to a third party outside the privilege
Voluntary disclosure of privileged communications to a third party outside the privilege relationship destroys confidentiality and waives the privilege.
TX Bar Evidence 3
Under Texas law, the holder of the attorney-client privilege is: