Two Rights Collide: Determining When Attorney-Client Privilege Should Yield to a Defendant’s Right to Compulsory Process or Confrontation

TWO RIGHTS COLLIDE: DETERMINING WHEN ATTORNEY-

CLIENT PRIVILEGE SHOULD YIELD TO A DEFENDANT’S RIGHT

TO COMPULSORY PROCESS OR CONFRONTATION

Jackson Teague*

ABSTRACT

In a criminal trial, the Sixth Amendment’s Compulsory Process Clause protects a

defendant’s right to gather evidence in his favor. Similarly, the Confrontation

Clause guards a defendant’s right to effectively cross-examine those who

bear witness against him. At times, however, these rights collide with a wit-

ness’s assertion of the attorney-client privilege. The Supreme Court declined

to decide how to handle such a collision in Swidler & Berlin v. United States.

And the courts that have answered this question have fractured. Some suggest

the attorney-client privilege yields to a defendant’s Sixth Amendment rights.

Some hold that the attorney-client privilege is always impenetrable. Finally,

others conduct fact-specific balancing tests to determine whether the informa-

tion at issue is sufficiently probative to justify piercing the privilege. This

Note contends that each of these approaches misses the mark. It first argues

that the categorical approaches to this conflict ignore the Supreme Court’s

direction to balance a defendant’s Sixth Amendment interests against an evi-

dentiary rule’s purpose when the two collide. It then contends that fact-spe-

cific balancing tests disregard a client’s need for certainty regarding the

attorney-client privilege’s scope.

After critiquing current approaches, this Note provides a new standard

for resolving conflicts between a defendant’s Sixth Amendment rights and

the attorney-client privilege. Under the proposed standard, the attorney-

client privilege will be penetrable unless the relevant communication would

subject the privilege-holder to criminal liability. Such a standard both pro-

vides a client with certainty regarding when the privilege may be pierced

and respects the need to balance a defendant’s Sixth Amendment interests

against an evidentiary rule’s purpose. This, in turn, protects the defendant’s

constitutional right to put forth probative evidence, while simultaneously

ensuring that the attorney-client relationship does not unduly suffer.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 488

I. SHAPING THE LEGAL LANDSCAPE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 490

* J.D., Georgetown University Law Center. I would like to thank Professor Paul Rothstein, John Marinelli,

Eleni Ingram, Nicholas Engle, Tom Scott-Sharoni, and Katie Pennell for their thoughtful comments on early

drafts of this Note. I would also like to thank the American Criminal Law Review’s editors for their invaluable

help throughout the publication process. © 2021, Jackson Teague.

487

A. Attorney-Client Privilege. . . . . . . . . . . . . . . . . . . . . . . . . . . . 490

B. Confrontation Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 494

C. Compulsory Process Clause . . . . . . . . . . . . . . . . . . . . . . . . . 495

II. CHALLENGING CURRENT APPROACHES. . . . . . . . . . . . . . . . . . . . . . . . . 498

A. The Sixth Amendment Categorically Controls . . . . . . . . . . . . . 499

B. The Attorney-Client Privilege Categorically Controls . . . . . . . 504

C. Balancing Tests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508

III. THE PROPOSED STANDARD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 510

A. Balancing Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 510

1. Non-Incriminating Statements . . . . . . . . . . . . . . . . . . . . . 510

2. Incriminating Statements . . . . . . . . . . . . . . . . . . . . . . . . 514

B. The Proper Standard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 518

C. Applying the Standard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 519

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 521

INTRODUCTION

Imagine that a man is on trial for a murder he did not commit.

1

As the prosecu-

tion builds its case, the man’s conviction becomes almost a foregone conclusion.

The evidence appears so damning that it would take another person’s confession to

convince a reasonable jury of the defendant’s innocence. Imagine that such a con-

fession exists, and that it falls squarely within a hearsay exception. The defendant

would undoubtedly seek to introduce it as evidence, and his Sixth Amendment

right to compulsory process would almost always enable him to do so.

2

But assume the true murderer’s confession was covered by the attorney-client

privilege. Communications covered by this privilege generally enjoy unquestioned

secrecy and are not subjected to a balancing test of any kind.

3

The defendant’s right

to compulsory process thus collides with the attorney-client privilege. When this

collision occurs, a court must decide which right triumphs, and which must yield.

Next consider Murdoch v. Castro.

4

In 1983, four men robbed a California bar,

shooting and killing a bystander in the process.

5

The murder went unsolved for

eleven years until the police used fingerprint technology to identify Dino Dinardo.

6

Dinardo initially denied any involvement in the crime, but later confessed, impli-

cating Charles Murdoch and eventually testifying against him.

7

Following that

1. This hypothetical situation is based on the facts of Morales v. Portuondo, 154 F. Supp. 2d 706 (S.D.N.Y.

2001).

2. See U.S. CONST. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to have

compulsory process for obtaining witnesses in his favor.”).

3. Swidler & Berlin v. United States, 524 U.S. 399, 408–09 (1998) (holding that the attorney-client privilege

is absolute and survives a client’s death).

4. 365 F.3d 699 (9th Cir. 2004).

5. Id. at 701.

6. Id.

7. Id.

488 AMERICAN CRIMINAL LAW REVIEW [Vol. 58:487

testimony, a privileged letter from Dinardo to his attorney surfaced.

8

The prosecu-

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.

9

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,

10

and

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-

dentiary privilege.

11

Others hold that the privilege is impenetrable.

12

Finally, some

conduct a fact-specific balancing test to determine whether the Sixth Amendment or

attorney-client privilege prevails.

13

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