As a criminal defense attorney, what is your duty if your client said something like, “Yeah, I did it. Check it out: here’s the soldering iron I raped her with that the stupid cops can’t find. It’s still got her blood on it.”? Now, you aren’t qualified to determine whose blood may or may not be on the iron, or even if it’s blood. Similarly, you can’t tell if the item was used in the crime. Is the fact that this iron is in your client’s possession privileged? Suppose your client gave it to you or told you he was going to throw it in the river?
I saw this earlier but I didn’t do litigation so I didn’t want to take it. I’m sure someone will, so this will serve as just a bump.
As I recall, the state had an obligation to provide any exculpatory evidence it had as to the defendant as well as certain information beyond that I think. The reason I know this is that I did a lot of arraignments and local practice was to receive our discovery packets there.
I’m fairly sure though that it was a one way street. So if the defendant wanted to stop by and drink a beer out of the victim’s skull, too fucking bad. The only exception that I can recall was any prospective act. So if you knew or had reason to believe that a crime was about to be committed, then as an officer of the court (which technically is what attorneys are), your first responsibility is to the state and not the client.
I generally avoided actual clients so I’m probably trampling on some important distinctions though. For example it occurs to me that there is probably a fine line between not ratting out your client and obstruction of justice.
As an aside: A lot of people believe that one of the first things OJ did once he was a suspect was give the murder weapon (i.e. the knife) to his lawyer (and he hid it away somewhere)…
First, IANAL, but I believe the answers to your questions would be as follows:
An admission to one’s lawyer about the existence incriminating evidence is priviledged.
In most circumstances, a lawyer cannot take possession of incriminating evidence for any extended period of time without turning it over to the prosecution. This seems to be governed by both statute, and ethics rules, so circumstances will vary.
A lawyer cannot allow the client to knowingly lie in court, so knowledge of incriminating evidence would prevent the lawyer having her client testify to the contrary.
If a lawyer is presented with clearly incriminating evidence that the client explicitly states they intend to destroy, they likely have an obligation to either report the existence to authorities, or strongly dissuade their client from doing so.
All that said, I think it would largely come down to the specifics of the case.
This is an extremely difficult issue of criminal defense law. To illustrate its intractability: In 1985, the Professional Ethics Committee of the Maine State Bar was formally asked whether an attorney may permissibly take possession of evidence of a crime when proffered by a client, and their answer, literally, was “we don’t know.” (Their opinion provides a very good summary of the arguments on each side, however).
Since then, ABA Standard 4-4.6 has recognized some leeway for a defense lawyer to take possession of evidence at least temporarily, but at the same time, the Standard calls for disclosure of that evidence to authorities “if required by law,” so the issue remains very ambiguous.
There was a notorious case in Canada some years ago where a defence lawyer took possession of some videos that his client had made of him raping, torturing and murdering two girls. The defence lawyer reclaimed them from the hiding place where his client had put them (the cops missed them in the search of the house).
The defence lawyer hung on to them for about 18 months, and eventually the existence of the tapes came to light when he left the case and a different defence lawyer took over. The first defence lawyer was charged with obstruction of justice. He was acquitted, on the basis that on the facts, the concealment of the tapes had a tendency to obstruct justice (i.e. the actus reus of the offence was proven), but there was a reasonable doubt whether he concealed them in the mistaken belief that he could do so, intending to use them during the trial (i.e. - mens rea not proven). The result shows how difficult this area of the law is, as Tom Tildrum suggests.
"A lot of people believe that one of the first things OJ did once he was a suspect was give the murder weapon (i.e. the knife) to his lawyer (and he hid it away somewhere)…
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A lot of people believe this? I’ve never even heard this allegation. I certainly would not believe it. Do you have a source that supports this claim?
The judgement makes an interesting distinction between notes, pictures, even videotapes created a part of the discussions by the lawyer between or about the client, and “per-existing” evidence that is dumped on the lawyer’s desk. It suggests that is not covered by privilege, and worse yet, the lawyer may be called to testify as to how the evidence came to light (although presumably if the client dumps it on his desk, that may be covered by privilege) OTOH, the lawyers in the Bernardo case dug the evidence out of the house themselves, following the instructions of Bernardo - so the instructions may have been privileged, but were the actions of visiting the house and retreiving the tapes themselves privileged? (No client present).
The media at the time suggested this was a revenge attack by the prosecutors for making them look like idiots (shoe, fit…). They bought Homolka’s “poor battered wife” hook, line and sinker. They then attempted to suppress by injuction the information that she had a sweet deal (thus proving the internet is mightier than the pen). The videotapes proved that she was as evil, if not moreso, than her husband. he’ll die in jail, she’s living off on some tropical island IIRC.
Actually, as described, the taped statements of Homolka would lead me to believe that she was indeed under the compulsion and control of Bernardo.
Note how her answer to him is not deemed complete by him until she states that what she wants is to please him. he continues to ask after she answers “and…?”
The Bernardo-Holmolka case is its own category of sick and twisted. Her actions in the tapes apparently show that she was as much an instigator and active participant as he was - don’t rely on one quote. IIRC, one of the points Bernardo made was that the second kidnapping was his wife’s “type”, he like dark hair, she liked blondes; and apparently he ran into the first victim by accident, he was roaming the neighbourhood looking for things to steal, and she was locked out of the house (tough love) for being out late. She willingly followed him, things only got ugly (according to him) a few days later when she got tired of the games and wanted to go home. His contention was that Karla did the killing. Of course, does it matter? Both are equally blame-worthy and equally guilty of being participants. One just used batting her eyes to get out in a very short time.
For example, they sawed the second victim into chunks, mixed them in concrete, and tossed them in a river. They did all this in a plastic tent in the basement, which they then got rid of and cleaned up. Apparently there was no DNA evidence left behind from this operation. Too clever; they need to be locked up…