The Duty of a Lawyer to Turn over Evidence of a Crime

What is a criminal defense lawyer to do if he/she comes into possession of physical evidence that incriminates a client? The resolution of the issue is not an easy one, largely because it influenced by a whole host of factual and legal consideration.

At first blush, a criminal attorney could find some comfort in the attorney-client privilege and the confidentiality associated with that privilege. Those principles of law, however, have certain limited exceptions that may be applicable in addressing this knotty issue. Those exceptions should be analyzed carefully. Another area of comfort may be the Fifth Amendment; that is so because if a lawyer is required to turn-over evidence of a crime that production may produce a link in the chain of evidence used to convict the client which will run a foul of this constitutional safeguard.

On the other side of the coin, are ethical rules that prohibit a lawyer from committing a crime, engaging in dishonest, deceitful or fraudulent conduct, or obstructing another party’s access to evidence, which includes the alteration, destruction or concealment of evidence. Moreover, and perhaps more importantly, the possession of certain forms of evidence can be considered a crime under federal and state statutes. In short, a criminal lawyer faced with this daunting issue should exhaust all efforts to specifically define the scope of the law and apply these principles to the special facts of each case.

Some of the facts that can influence a legal investigation of this question, relate to the nature of the item in the lawyer’s possession and the manner in which it was received. As to the latter, if the client gives the criminal attorney the item, the attorney-client privilege, along with its duty of confidentiality may come into play. If, however, the item is given to the attorney by a third-party the attorney-client privilege is not available and principles of confidentiality may be suspect. As to the former (viz. the nature of the item), there are different kinds of tangible evidence that can include contraband, instrumentalities of a crime, fruits of a crime, and other items that may merely implicate a client in criminal conduct.

In most instances, possession of contraband is a criminal offense, even if in the hands of a criminal defense attorney. Thus, if a lawyer receives drugs, illicit pornography or an illegal weapon, he/she can be subjected to criminal prosecution, if he/she does not immediately divest himself/herself of the item. In doing so, the lawyer should also remember that there may be ethical or substantive problems if the item is destroyed or purposefully concealed.

A lawyer who is in possession of the fruits of a crime can also be subjected to criminal prosecution and the same ethical and substantive conundrums associated with possession of contraband. Thus, if an attorney receives money resulting from a crime, counterfeit products or stolen property, a deliberate effort should be made to determine the proper course of conduct.

With respect to instrumentalities of crime, it should be recognized that some, but not all states impose criminal liability for possession of the instrumentalities of a crime. In one case decided by an appellate court in Washington State, it was observed that instrumentalities, “[G]iven to the attorney during legal consultation for information purposes or used by the attorney preparing the defense of his client’s case, whether or not the case ever goes to trial, could clearly be withheld for reasonable time. It may follow, however, that after a reasonable period, the attorney, as an officer of the court, will have to turn the same over to the prosecution,”

It appears clear that, where the item is contraband an instrumentality or fruit of a crime, the criminal defense attorney has an affirmative responsibility to turn-over the item to law enforcement agents, irrespective of the existence of a court order or a written request. It is also reasonably clear that a criminal defense attorney cannot divest himself/herself of the responsibility by returning the item to the person who originally gave the item to the lawyer because the decision may expose the attorney to a claim that he obstructed justice; that he concealed the evidence; or that he aided and abetted the client to commit the crime.

There are other items of evidence, when in the possession of a criminal attorney, may still trigger ethical and substantive concerns. Thus, if a lawyer or his/her investigator takes evidence from its original location, it may have effectively deprive the government of that evidence, and to that extent certain responsibilities may obtain. It seems that the closer an item is connected to a crime, the greater the responsibility the lawyer has to disclose or turn over the information. On this issue, the author has first-hand experiences in a case where he was engaged to represent a young man charged with two counts of vehicular homicide. The information received in the preliminary stages of the case’s investigation led to a belief that the vehicle driven by the client had defective brakes. In order to develop this important consideration, a forensic scientist was engaged to analyze the vehicle, which was located in a local tow yard. The day after the inspection, the expert called my office and disclosed to me that he had removed different components of the braking system for purposes of inspecting the items in his laboratory. Fortunately, the government had not obtained an impound order. Nonetheless, I immediately called the criminal assignment judge in the county where the case was located and arrange a conference call with the prosecutor assigned to the case to disclose the issue. As a result of that conversation, the expert immediately returned the items to the prosecutor’s office and the issue resolved without any further controversy. In the meantime, the expert was able to inspect the components of the braking system. Unfortunately, that inspection was not productive.

In the final analysis, I think two points should be made. The first is that a criminal defense attorney, absent extraordinary circumstances, should never receive any time of evidence that relates to his client’s criminal culpability. In those cases where an exception to a general rule should apply, the criminal defense attorney must carefully review the law in his/her jurisdiction and the special facts of the case. If the evidence is such that it must be turned over to law enforcement authorities, at the very least, the criminal defense attorney should make sure that the government stipulates that the lawyer’s disclosure cannot be used against his or her client at trial so as to protect the attorney-client privilege and the confidentiality associated with that privilege.

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