testimony, a privileged letter from Dinardo to his attorney surfaced.
tor informed the judge that he had not seen the letter’s contents, but that there was
a chance the letter would exonerate Murdoch entirely.
If such a letter existed,
Murdoch would undoubtedly seek to use it to impeach Dinardo’s testimony. And
absent privilege, it is unquestionable that his Sixth Amendment right to confronta-
tion would enable him to do so. Murdoch’s right to confrontation thus collided
head on with Dinardo’s attorney-client privilege. When such a collision occurs,
courts again must decide which interest prevails.
The law governing when a defendant can use his confrontation or compulsory pro-
cess rights to pierce the attorney-client privilege remains unsettled. The Supreme
Court speciﬁcally left the question open in Swidler & Berlin v. United States,
courts that have answered the question have reached different conclusions. Some sug-
gest that a defendant’s right to compulsory process or confrontation overrides the evi-
Others hold that the privilege is impenetrable.
conduct a fact-speciﬁc balancing test to determine whether the Sixth Amendment or
attorney-client privilege prevails.
This Note contends that each of these approaches misses the mark. It then crafts
a coherent standard for when attorney-client privilege should yield to the Sixth
Amendment. Part I examines the current landscape of attorney-client privilege and
8. Murdoch became aware of the privileged materials when the prosecutor informed the trial judge and
Murdoch’s counsel that Dinardo told her he had written his counsel a letter concerning Murdoch’s involvement.
Id. at 701–02. The prosecutor had not seen the letter, but believed that it potentially exonerated Murdoch. Id.
9. Id. at 702.
10. 524 U.S. 399, 408 n.3 (1998) (holding that the attorney-client privilege survives a client’s death, but
leaving open the question whether “exceptional circumstances implicating a criminal defendant’s constitutional
rights might warrant breaching the privilege”).
11. See, e.g., State v. Hoop, 731 N.E.2d 1177, 1187 (Ohio Ct. App. 1999) (noting that the attorney-client
privilege must yield if invocation of the privilege unduly burdens the defendant’s right to compulsory process);
United States v. Romano, 46 M.J. 269, 274 (C.A.A.F. 1997) (“The defendant’s constitutional right to produce
evidence under the [C]ompulsory [P]rocess [C]lause may overcome the attorney-client privilege.”); United
States v. Rainone, 32 F.3d 1203, 1206 (7th Cir. 1994) (ﬁnding that the attorney-client privilege may have to yield
“if the right of confrontation . . . would be violated by enforcing the privilege”).
12. See, e.g., United States v. Scheffer, 523 U.S. 303, 308 (1998) (noting that rules limiting the accused’s
ability to present relevant evidence do not violate the accused’s right to compulsory process unless they are
“arbitrary” or “disproportionate to the purposes they are designed to serve” (quoting Rock v. Arkansas, 483 U.S.
44, 56 (1987))); Valdez v. Winans, 738 F.2d 1087, 1089 (10th Cir. 1984) (noting that the attorney-client privilege
did not have to yield to the Compulsory Process Clause because “the Sixth Amendment usually has been forced
to yield when a testimonial privilege is asserted”); United States ex rel. Abramov v. Chandler, No. 05 C 4795,
2006 WL 1371456, at *7 (N.D. Ill. May 17, 2006) (“[T]he attorney-client privilege is designed ‘to promote the
judicial process itself.’ Thus, unlike some privileges deemed to be of secondary importance, the attorney-client
privilege does not give way to a defendant’s right under the [C]onfrontation [C]lause.” (citation omitted)).
13. See, e.g., United States ex rel. Blackwell v. Franzen, 688 F.2d 496, 501 (7th Cir. 1982) (holding that the
trial court’s refusal to allow defense counsel to ask whether the prosecution witness had recanted his confession
in a conversation with his attorney did not violate the defendant’s Sixth Amendment right to confrontation
because the probative value of testimony did not outweigh the interests served by the privilege); United States v.
W.R. Grace, 439 F. Supp. 2d 1125, 1142–43 (D. Mont. 2006) (balancing the probative value of privileged
information against the privilege’s justiﬁcations and holding that at least some of the documents at issue required
piercing the privilege under the Compulsory Process Clause).
2021] TWO RIGHTS COLLIDE 489