Volume 58

Two Rights Collide: Determining When Attorney-Client Privilege Should Yield to a Defendant's Right to Compulsory Process or Confrontation

by Jackson Teague

 In a criminal trial, the Sixth Amendment’s Compulsory Process Clause protects a defendant’s right to gather evidence in his favor. Similarly, the Confrontation Clause guards a defendant’s right to effectively cross-examine those who bear witness against him. At times, however, these rights collide with a witness’s assertion of the attorney-client privilege. The Supreme Court declined to decide how to handle such a collision in Swidler & Berlin v. United States. And the courts that have answered this question have fractured. Some suggest the attorney-client privilege yields to a defendant’s Sixth Amendment rights. Some hold that the attorney-client privilege is always impenetrable. Finally, others conduct fact-specific balancing tests to determine whether the information at issue is sufficiently probative to justify piercing the privilege. This Note contends that each of these approaches misses the mark. It first argues that the categorical approaches to this conflict ignore the Supreme Court’s direction to balance a defendant’s Sixth Amendment interests against an evidentiary rule’s purpose when the two collide. It then contends that fact-specific balancing tests disregard a client’s need for certainty regarding the attorney-client privilege’s scope. 

After critiquing current approaches, this Note provides a new standard for resolving conflicts between a defendant’s Sixth Amendment rights and the attorney-client privilege. Under the proposed standard, the attorney- client privilege will be penetrable unless the relevant communication would subject the privilege-holder to criminal liability. Such a standard both provides a client with certainty regarding when the privilege may be pierced and respects the need to balance a defendant’s Sixth Amendment interests against an evidentiary rule’s purpose. This, in turn, protects the defendant’s constitutional right to put forth probative evidence, while simultaneously ensuring that the attorney-client relationship does not unduly suffer. 

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