Commercial Litigation and Arbitration

Is the Attorney-Client Privilege a Constitutional Right in Criminal Cases?

Howell v. Trammell, 2013 U.S. App. LEXIS 18477 (10th Cir. Sept. 5, 2013):

The relevant out-of-court statements admitted against Howell are Watson's private conversations with her former attorneys and Watson's testimony at the preliminary hearing. While testifying at Howell's trial--under oath and subject to Howell's cross-examination--Watson's former attorneys said only that whatever Watson told them before her preliminary hearing was "consistent" with what she later said at the preliminary hearing. Trial Tr., Vol. VI, at 215, 220-21. The former attorneys never actually quoted Watson or even paraphrased what she had said. To the extent their testimony was still hearsay,

Footnote 8. Arguably, the testimony was not hearsay under the Oklahoma equivalent of Federal Rule of Evidence 801(d)(1)(B) for prior consistent statements. But we need not decide this question of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

the out-of-court declarant was Watson. And Watson "testif[ied] as a witness" and was "subject to full and effective cross-examination" at her and Howell's joint trial. See Green, 399 U.S. at 158. Moreover, as we mentioned above, her preliminary hearing testimony, like that in Green, "had already been given under circumstances closely approximating those that surround the typical trial." Id. at 165. Thus, under pre-Crawford precedent, there is no Confrontation Clause violation.

To be sure, the former attorneys' testimony may have violated Watson's attorney-client privilege. On that basis, Watson's trial counsel made an objection, which the judge overruled because he believed that Watson had waived the privilege. And it is true that Watson may in fact have waived her privilege when she testified about some of her communications with the former attorneys.

But we need not decide whether the privilege was violated, because "standing alone, the attorney-client privilege is merely a rule of evidence; it has not yet been held a constitutional right." Partington v. Gedan, 961 F.2d 852, 863 (9th Cir. 1992) (quoting Clutchette v. Rushen, 770 F.2d 1469, 1471 (9th Cir. 1985), cert. denied, 475 U.S. 1088 (1986)) (alteration incorporated; internal quotation marks omitted); see also Sanborn v. Parker, 629 F.3d 554, 575 (6th Cir. 2010) ("a violation of the attorney-client privilege is not itself a 'violation [] of the United States Constitution or its law and treaties'" (emphasis in original)). But see Note, The Attorney-Client Privilege: Fixed Rules, Balancing, and Constitutional Entitlement, 91 Harv. L. Rev. 464, 485 (1977) ("[W]hen the [F]ifth and [S]ixth [A]mendments are considered together, the individual accused of crime does seem to have a right to attorney-client privilege."). "A violation of the attorney-client privilege implicates the Sixth Amendment right to counsel only . . . when the government interferes with the relationship between a criminal defendant and his attorney." Partington, 961 F.2d at 863 (emphasis added).

Here, assuming no waiver, the only attorney-client privilege violated was that between Watson and her former counsel. The relationship with her trial counsel was unimpaired, so her Sixth Amendment right to counsel was not violated under plain error review.

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