I stumbled upon a dubious “click bait” news story which might have been entirely fake. However if true seemed wrong to me. I checked with AI which said it was legally correct even though it seems wrong. I am not a lawyer and not American so only need a layman’s level answer.
The story concerned the trial of Tyler Robertson who is accused of shooting political activist Charlie Kirk. The basis of the story was reporting what Tyler supposedly privately said to his lawyer in the courtroom. The story suggested a lip reader was (or was used by) the reporter.
AI simply stated there’s no expectation of privacy in a courtroom.
As a complete non lawyer that just seems wrong to me. Seems wrong that you could hide comments from the judge, jury and opposing lawyers (by turning your back on them and whispering) yet lawyer client privilege can be circumvented. Seems possible lip reading might not be 100% accurate. Seems it’s possibly contempt of court to “eavesdrop” plus publicly report it outside the court. Plus seems to open a bit of a Pandora’s Box. If lip reading is allowed are you allowed a “hearing aid” that’s actually a high powered directional microphone? Are you allowed to plant a camera in the ceiling to look down and view legal notes?
What measures for obtaining information for reporting in the press are legal?
What effect does information obtained by any means have on the trial?
I’m pretty sure the answer to the second question is “None” - nothing the lipreader reports can be used by the prosecution, because it is privileged information. But I’m eager to hear from real lawyers about both questions!
The person who circumvented attorney-client privilege in this scenario was the client. He should have been more discreet. Third parties have no obligation to shut off their senses in the presence of a lawyer and their client.
Courts usually have rules on what sorts of electronic devices reporters and others are allowed to bring into the courtroom. Violating those rules might be contempt. Having eyes and ears while sitting in an approved seat isn’t contempt.
The issue is whether the client could reasonably assume their communication with their attorney in a given scenario is confidential. In most jurisdictions at least, a known/visible eavesdropper can destroy privilege.
The next issue is whether the possibility of lip reading by members of an audience in court would be construed similar to eavesdropping. I honestly don’t how how a court would handle that, and it might vary by jurisdiction.
But the mere fact that a client is speaking with their attorney and intends for the communication to be confidential and privileged does not make it so. The presence of third parties absolutely can make a communication non-confidential and therefore also no longer protected by attorney-client privilege.
I think you might be mixing two concepts up - “attorney-client privilege” and “confidentiality”. They are a little bit different in terms of what information and situations they cover - but both bind the lawyer , not third parties who happen to know about the communication whether by being invited to the meeting between attorney and client, whether they overheard the conversation in a public place , whether they read lips in a public place or whether the attorney and client spoke in a language that they wrongly did not expect anyone else to understand. That’s why communications made in the presence of a third party are not protected by attorney-client privilege that third party has no obligation to keep the information secret.
Recording devices and cameras are a completely different issue - the issue there is not so much confidentiality as 1) whether it’s legal to record people without their consent ( that’s why security camera’s often don’t have audio) 2) whether it’s permitted to bring recording devices into a courtroom and 3) A reporter has absolutely no right to install a camera in the courtroom ceiling so that might actually be a crime.
I’ll just make clear again, I’m not a lawyer and not even American. Just curious. It seems everyone feels using lip reading is OK (even though it feels wrong to me somehow) but is there ever a situation in an active court when a lawyer and a client might need to have a lawyer-client privileged chat. Based on TV dramas, if something really unexpected turned up then what if the lawyer wants to say something to their client. Do they have to do that TV drama thing where they call for a halt so they can go to a private room?
Plus planting a spy camera in the ceiling was a bit flippant but with increasing technology the hearing aid question is still troubling me. If a lawyer or a juror with a proven medically existing hearing issue had a modern high tech hearing aid so good that enabled them to hear whispers across the courtroom. Is that legal?
Another random thought based on TV dramas. Sometimes (on TV) a judge calls lawyers to the bench and covers the microphone with their hand for a private chat. Does covering a microphone like that actually block it? If it did what’s the legal standing of using lip reading then?
Depends on how long it’s expected to be- they might ask for a recess and go to a private room. But if it’s only a sentence or two, I’ve seen the lawyer hold a folder up much like baseball players cover their mouth with their glove to prevent lip reasing.
This would be an issue as video and audio recording in court (in the jurisdictions it is allowed) is tightly regulated, this would be a violation of those regulations, and pretty serious contempt of court.
Lip reading on a the official court video recording is fine (though not admissable in court it’s not considered confidential in any way)
It’s usually for a legal or procedural question like a discussion about an objection. That is something they don’t want the jury to hear because only the judge’s ruling has bearing on the case not the discussion. Very often the jury is cleared from the courtroom. However the discussion is all on the record. I’ve never seen the gallery cleared only the jury. The discussion will be on the official court transcript. Those discussions and rulings are often the basis for appeals. Bottom line it doesn’t matter if anyone in the audience hears or lip reads because it’s not a secret discussion. It only matters that the jury doesn’t hear it.
I was an alternate juror, once, and for discussions at the bench the judge would flip a switch. Not only did it turn off his mic, it sent white noise to the speakers. It was effective.
When I’ve been on a jury (in California) whenever there was a sidebar the judge and attorneys and court reporter would leave the courtroom, to be sure we couldn’t hear.
The first trial was nearly 20 years ago and I don’t remember for sure. The judge may have turned off a switch. The second one was like three years ago and he definitely but his hand over the mic. I could hear kind of muffled garbling but I didn’t strain to try to make it out. In both cases they didn’t leave or make us leave. They were both relatively minor battery cases.
