Clark v. State
159 Tex.Cr.R 187, 261 S.W.2d 339 (1953)

  • Clark’s wife filed for divorce.  Soon after, she was found dead.
  • Clark was arrested and charged with murder.
  • At trial, the prosecution attempted to introduce testimony from a telephone operator (Bartz).
    • According to Bartz, Clark had asked her to connect him to his lawyer (Martin).  Against company rules, she listened to the entire conversation.
    • Bartz claimed that Clark confessed to murdering his wife to Martin, and that Martin told him to get rid of the weapon and not talk to anyone.
  • Clark objected to Bartz’s testimony on the grounds that it was inadmissible as a violation of attorney-client privilege.
  • The Trial Judge allowed the testimony to be admitted.
  • The Trial Court found Clark guilty of murder.  He appealed.
  • The Appellate Court affirmed.  Clark made a motion for a rehearing.
    • The Appellate Court noted that generally, evidence procured by eavesdropping is not admissible.
    • However, the Court found that under several cases of Texas State law, the attorney-client privilege was found to only be relevant to the attorney and the client, and when someone overhears the conversation, they can be called to testify.
      • Basically, the Court said that the means for preserving secrecy are in the client’s hands, and if they don’t care enough to keep their voice down, then if anyone overhears, it’s the client’s fault.
  • The Appellate Court denied the motion for a rehearing.
    • The Appellate Court denied the motion on entirely different grounds.  The Court looked at the conversation and determined that Martin had only given Clark illegal advice and as such could not be said to be acting in the capacity of an attorney.  Therefore there was no attorney-client privilege.