Say a client is guilty of murder, and tells his lawyer so. His lawyer then - for whatever reason - tells this to the cops.
That would be a violation of attorney-client privilege (assuming the client didn’t pose a threat to anyone and was not asking the lawyer to help him with a crime.) The lawyer might get disbarred or face stiff penalties, but would the court/prosecution be able to use that evidence against the defendant? What recourse might the client have?
At the very least, it would be hearsay evidence and therefore not admissible.
I’m not sure about that, it might well fall under the statements against interest exception, but IANAL. Or we can change things a bit and suppose the client tells the lawyer something like where he hid the gun and the lawyer repeats that. Can the police go get it and use it as evidence?
It’s all just us non-lawyers WAGging it up in here until one of the professionals arrive, but I’d always understood that evidence which was improperly obtained was inadmissible. Again, as I understand it, lawyers can refuse to represent a client who’s admitted guilt to them, and they have an obligation not to allow their client to commit perjury, but attorney-client privilege bars them from disclosing statements clients make to them.
Improperly obtained by the police; if the police detective is sitting around when a lawyer calls him up and spills the beans the police didn’t do anything wrong. Even if the lawyer does get in trouble, which I assume he will, that shouldn’t impact permissibility?
Eta: I then looked it up and it does impact permissibility, so there ya go.
It happened here in Australia. Nicola Gobbo, a barrister acting for various criminal defendants, was also acting as a police informer. She told the police of things her clients had said about their own cases and those of others.
Several convictions were overturned, if I remember correctly, on the grounds that a substantial miscarriage of justice had occurred. I do not think it was formally conceded that the evidence would have been inadmissible, but likely it would have been.
The relevant law would be s138 of the uniform Australian evidence legislation, which reads:
(1) Evidence that was obtained—
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law—
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
More info about the Gobbo case here:
SO it would be inadmissible for prosecutors to use a confession lawyer gave them to prosecute THEIR client.
But would they be able to use the confession to free a third party if the third party had been convicted of the crime?
My understanding is that the method by which evidence is excluded is a Motion to Supress or a Motion to Exclude, which is specifically a motion the defense takes against the government. I can’t find any reference to the prosecution being able to file such a motion, so my guess is that the answer is yes, a third party could use this evidence. But I am not confident about that at all.
Oh, what is the law about the permissibility (section/code)? Curious if there’s actually a real-life precedent.
I know there was an episode of Law & Order where the lawyers were able to use a illegally obtained confession to exonerate someone but I did NOT want mention it because I know the show has taking liberties with what the ACTUAL law will allow.
Ca Penal Code 1538.5
It would depend on where the gun was, right? If the gun was in buried in a public place, the cop could go dig it up, check it for prints, then go arrest the perp, and there is no problem. If the gun is in the perp’s house, the cop goes to a judge to get warrant saying he has an informant who told him the gun was in the house, then there is a problem.
I believe the police must demonstrate that the discovery of the evidence was inevitable based on the information that they obtained legally. In other words, the police were already on the path. While the evidence may be in a public place, if the police had no idea where it was then the information from the attorney was the only reason they found it.
Attorney-Client privledge is held by the Client; the attorney can’t decide to breach it on their own (with some exceptions). IANAL but I would guess that information disclosed by an attorney breaking ACP and any evidence from that, would get excluded from trial. But I’m sure there are exceptions to every rule.
Here in Ohio, the lawyer would certainly be in ethical trouble, but I think his client’s admission would come in as a statement against interest, an important exception to the hearsay rule. As Babale said, the police didn’t do anything wrong or violate the defendant’s rights; the evidence just fell into their laps. The cops might not even need the statement at trial - they might learn enough from the lawyer that their investigation would then turn up other damning evidence.
Granted, this is from an attorney’s website, but it explicitly says that evidence released by your attorney violating ACP can’t be used against you. This would make sense. Otherwise, a rich 3rd party could just bribe defense attornies to spill valuable information with no consequences.
The strongest protection that attorney-client privilege offers is that it cannot be used as evidence against you even if your lawyer does reveal it.