Friday, May 4, 2007
The Supreme Court of Texas held today that the work-product privilege protects prosecutors from testifying in a malicious prosecution suit. The release of the criminal file of the underlying case did not waive the privilege.
The case had its genesis in a nasty dispute between feuding neighbors who frequently called in the police "regarding such incivilities as barking dogs, obscenities yelled, cut cable lines, strewn grass clippings, trash left in a yard.." and other indignities. The malicious prosecution suit involved a complaint that had led to criminal charges which were dismissed when the "victims" refused to testify. The court majority found that the burden of proving causation in the civil litigation was not a "substantial need" for the testimony sought and that there was an insufficient showing of an inability to obtain the substantial equivalent of the DA's testimony without undue hardship. There were concurring and dissenting opinions. (Mike Frisch)