Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
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What are the ethical obligations of a criminal defense attorney during the course of a pending criminal matter when the client places upon the attorney's desk or informs the attorney of the location of the instrumentality, fruits, or other physical evidence of the crime?
The criminal defense attorney who takes possession of or is told the location of material evidence of a crime is presented with a complex dilemma that involves the resolution of the often conflicting duties inherent in the adversary system: of seeking the truth and loyalty to the client. Although the case law is limited in this area, the trend clearly seeks to strike a balance between the potentially opposite adversary poles of truthseeking and client loyalty by requiring physical evidence of a crime to be turned over by the attorney to the prosecution within a reasonable time, while broadly construing the attorney-client privilege so as to protect against the compelled disclosure of confidential communications. Therefore, prior to taking possession of such evidence, the defense attorney should inform the client of the attorney's obligation to turn over the evidence once possession is made and the attorney should seriously question the consequences of his taking possession of the evidence at all.
Business and Professions Code section 6068, subdivision (e).
Rule 7-107(A) of the Rules of Professional Conduct of the State Bar of California.
In responding to this request concerning criminal defense attorneys, the Committee recognizes that parallel ethical obligations may be imposed upon either civil or criminal attorneys in the context of having discovered or been informed of the location of physical evidence of a crime not yet charged; or during a pending criminal matter while the attorney is representing the client in civil matters; or upon both civil and criminal attorneys in other factual situations. Nevertheless, this opinion is limited to the narrow question presented.
Fundamental to this discussion is Section 954 of the Evidence Code which provides that a client "...has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer...." Likewise, Business and Professions Code section 6068, subdivision (e) places upon the attorney the duty "...to maintain inviolate the confidence, and at every peril to himself to preserve the secrets, of his client."
The rationale behind the evidentiary privilege and the professional obligation of the attorney is to allow the client to make disclosures to the attorney "...without fear that his attorney may be forced to reveal the information confided to him." 1
On the other hand, by the provisions of Section 135 of the Penal Code, it is a violation of the law for one knowingly to conceal or destroy any "...instrument in writing or other matter or thing [that] is about to be produced in evidence upon any trial, inquiry or investigation whatever, authorized by law...", and it is clear that the attorney-client privilege does not grant to the client the power permanently to "...sequester physical evidence such as a weapon or any other article used in the perpetration of a crime by delivering it to his attorney."2 Likewise, rule 7-107(A) of the California Rules of Professional Conduct states:
"A member of the State Bar shall not suppress any evidence that he or his client has a legal obligation to reveal or produce."
The California Supreme Court in People v. Meredith, supra, has determined that physical evidence of a crime over which the lawyer has exercised dominion and control, thus taking possession (People v. Myles (1975) 50 Cal.App.3d 423), is not protected by the attorney-client privilege. Other jurisdictions have imposed a clear legal and ethical duty upon the lawyer to turn that evidence over to the prosecution.3 California approved the holding in Olwell in both People v. Meredith, supra, and People v. Lee, supra.
In considering the attorney's legal obligations to his client under the Sixth Amendment to provide effective counsel, the attorney should advise the client of the attorney's ethical as well as legal obligation with respect to the duty to deliver physical evidence of the crime to the prosecution if the attorney takes possession of such physical evidence. It is at this stage of representation that the impact upon the attorney-client relationship is at its greatest. The client is informed of the duties the attorney may have in the search-for-truth aspect of the adversary system, even to the extent of a legal duty imposed upon the attorney to participate in the very case against his client by delivering material evidence of the crime to the prosecution.
Both Anderson v. State, supra, and State v. Olwell, supra, arrive at the same conclusion: although the fact of the delivery of the physical evidence of a crime by the client to the attorney is within the protection of the attorney-client privilege, the physical evidence itself is not. As a corollary, however, although it was held in Anderson v. State, supra at p. 875, that the attorney acted "...properly under the circumstances that confronted him..." by turning the stolen items over to the police, "...in order for the [attorney-client] privilege to be meaningfully preserved, the state cannot introduce evidence that [it] received the items from [the attorney's] office."
It was also held in State v. Olwell, supra at pp. 860-865: "The attorney should not be a depository for criminal evidence...Such evidence given the attorney during legal consultation...and used by the attorney in preparing the defense of his client's case...could clearly be withheld for a reasonable period of time. It follows that the attorney after a reasonable period, should, as an officer of the court, on his own motion turn the same over to the prosecution." The prosecution, however, must "...take extreme precautions to make certain that the source of the evidence...' (Id., at p. 865) is not disclosed at trial.
Thus, in its Olwell decision, the court was seeking the proper balance between truthseeking by the prosecution, and the attorney-client privilege of the defense. This compromise of the interests of the adversary system has been a model for many subsequent cases which have grappled with the question of whether the defense must turn evidence over to the prosecution on its own motion.4
Since the holding in Olwell has been approved by the California Supreme Court (People v. Meredith), it is settled law in this state that the criminal defense attorney, after holding for a reasonable time for the purpose of preparing his client's defense, the instrumentality, fruits, or other physical evidence of the crime placed upon his desk by the client, is thereafter both legally and ethically obligated on his own motion to turn such evidence over to the prosecution.
It is apparent, however, that there is a significant difference in the legal and ethical obligations of an attorney when given possession of the physical evidence of a crime, as opposed to merely being told by his client of the location of the physical evidence of the crime.
This issue was considered by the California Supreme Court in People v. Meredith, supra. In that case, a client in a pending criminal matter revealed to his attorney the location of physical evidence relating to the crime for which the client had been charged. The attorney caused his investigator to go to the disclosed location where the investigator found the evidence, removed it, and delivered it to the attorney. The attorney, in turn, turned it over to the police without revealing the source of the information which led to its discovery or the location at which the evidence was found.
At trial, the investigator, over objection by defense counsel, was compelled to testify concerning his observation of the location of the evidence. Following conviction, it was asserted upon appeal that the trial court erred in admitting the investigator's testimony.
In considering this issue, the Supreme Court in People v. Meredith, supra at p. 695, acknowledged that the attorney-client privilege is not strictly limited to communications, but extends to protect observations made as a consequence of protected communications. Additionally, it concluded that: "If defense counsel leaves the evidence where he discovers it, his observations derived from privileged communications are insulated from revelation."
Thus, in the situation wherein the client informs the attorney of the location of the physical evidence of the crime, or the attorney merely observes it without taking possession, the attorney need not disclose to the prosecution either its location or his or his agent's physical observations of the same. When, however, the defense attorney removes the physical evidence from its original location or takes possession of it, the evidence must, after reasonable time for investigation, be delivered to the prosecution and the location of its discovery will be subject to disclosure.
A criminal defense attorney should give careful consideration to the consequences of his actions before accepting possession of physical evidence or revealing any oral or observation evidence to the prosecution in light of the client's Sixth Amendment right to effective counsel and Business & Professions Code section 6068, subdivision (e) requiring confidentiality. At least prior to the passage of Proposition Eight5, case law suggested that all investigation and examination by a criminal defense attorney (with the exception of possession of physical evidence) is within the self-incrimination privilege of the defendant:
"...the [self-incrimination] privilege forbids compelled disclosures which could serve as a link in the chain of evidence tending to establish guilt of a criminal offense...neither the order nor the record below enables us to say that it clearly appears that disclosure to the prosecution of the name, addresses and expected testimony of petitioner's witnesses cannot possibly tend to incriminate her...expected testimony of defense witnesses or even their names and addresses, could easily provide an essential link in the chain of evidence underlying the prosecution's case in chief." (People v. Prudhomme (1970) 2 Cal.3d 320, 326; Allen v. Superior Court (1976) 18 Cal.3d 520.)
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.
1 People v. Meredith (1981) 29 Cal.3d 682, 690, quoting City and County of San Francisco v. Superior Court (1951) 37 Cal.2d 227, 235
2 People v. Lee (1970) 3 Cal.App.3d 514, 526
3 State v. Olwell (1964) 64 Wash. 2d 828 [394 P.2d 681]; Anderson v. State (Fla.App. 1974) 297 So.2d 871
4 Anderson v. State, supra; Morrell v. State (Alaska, 1978) 575 P.2d 1200; People v. Meredith, supra; People v. Lee, supra.
5 California Constitution, Article I, Section 28; Evidence Code section 940.
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