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State Information
In February 2020, the National Association of Criminal Defense Lawyers asked its membership about how it communicated with clients in custody. The survey focused particularly on lawyers’ ability to communicate with their detained and incarcerated clients. The below data is focused on findings regarding confidentiality, a key requirement of attorney-client communication.
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| Henderson Detention Center |
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Federal Information
To establish a Sixth Amendment violation based on a violation of attorney/client privilege, defendants in the Sixth Circuit must show that an intentional government intrusion led to prejudice.{1} 1 See United States v. Dobson, 626 F. App'x 117, 124 (6th Cir. 2015) (“A defendant's Sixth Amendment rights may be violated if the government intrudes on the attorney-client relationship and prejudice is shown.”); See also United States v. Steele, 727 F.2d 580, 586 (6th Cir.1984) (“Even where there is an intentional intrusion by the government into the attorney-client relationship, prejudice to the defendant must be shown before any remedy is granted.”). Although some courts have suggested that the government's intentional invasion of the attorney-client relationship, without more, can result in a reversible violation, “this court's precedent requires a showing of prejudice, even when the intrusion is intentional.”{2} 2 Dobson, 626 F. App'x at 124. To show prejudice, defendants must show that the disclosure of information was used for the benefit of the government or the detriment of the defendant.{3} 3 Bishop v. Rose, 701 F.2d 1150, 1156 (6th Cir. 1983) (“The obvious way to establish prejudice resulting from a disclosure is to show that the information was used for the benefit of the government or the detriment of the defendant.”). The following factors provide guidance to determine whether there has been a Sixth Amendment violation:
1) whether the presence of the informant was purposely caused by the government in order to garner confidential, privileged information, or whether the presence of the informant was the result of other inadvertent occurrences; 2) whether the government obtained, directly or indirectly, any evidence which was used at trial as the result of the informant's intrusion; 3) whether any information gained by the informant's intrusion was used in any other manner to the substantial detriment of the defendant; and 4) whether the details about trial preparations were learned by the government.{4} 4 United States v. Dobson, 626 F. App'x 117, 124 (6th Cir. 2015) (citing United States v. Steele, 727 F.2d 580, 586 (6th Cir.1984)).
In United States v. Dobson, 626 F. App'x 117, 124 (6th Cir. 2015) the Appellant’s co-defendant’s lawyer inadvertently released privileged documents to the prosecution.{5} 5 United States v. Dobson, 626 F. App'x 117, 118 (6th Cir. 2015). The prosecuting attorney read the privileged documents, and the court subsequently held a hearing to explore whether the disclosure was inadvertent, whether it contained privileged information, and that the co-defendant did not intend to waive that privilege.{6} 6 Id. at 120. During the hearing the co-defendant’s counsel confirmed that the inadvertent disclosure did not include defense theories or any witnesses of which the government was not already aware. The Sixth Circuit held that Dobson did not have standing, but in dicta, stated that even if Dobson had had standing, he failed to allege prejudice under any of the Steele factors.{7} 7 Id. at 123 (Defendant lacks standing to assert a Sixth Amendment violation because he was represented by separate counsel and because his own privileged communications were not disclosed.) “First, the government did not intentionally intrude into the co-defendant’s relationship with his counsel. Rather, the government obtained his email by happenstance. Second, the government did not use the co-defendant’s email at trial. Although Defendants argue that the disclosure of the email was fatal to their defense, they fail to explain why this is so. Third, there was no indication that the government used the co-defendant’s email to either Defendant's detriment.{8} 8 Id.
In United States v. Steele, the defendants appealed their convictions of conspiracy to distribute cocaine and possession of cocaine on the basis that a government informant, who was in the same jail cell as one of the defendants, violated their Sixth Amendment right to effective assistance of counsel.{9} 9 United States v. Steele, 727 F.2d 580, 586 (6th Cir.1984). In an affidavit, a government attorney asserted that the informant was merely placed in the cell to protect his identity as an informant.{10} 10 Id. Further, the government attorney told the informant that he did not want to know about any conversations that he may have overheard while in custody.{11} 11 Id. The defendants presented no evidence showing that the presence of Trammel in the lock up was purposefully caused by the government in order to gain confidential, privileged information; that the government obtained directly or indirectly any evidence used at trial as a result of the encounter; that any information gained by Trammel was used in any manner to the substantial detriment of defendant; or that the details about defense trial preparations were learned by the government.{12} 12 Id.
In Sanborn v. Parker, the District Court for the Western District of Kentucky concluded that, where the prosecution’s psychological expert interviewed the defendant without his lawyer about his defense strategy, and later testified about that information, the government intruded [into 6th A right?]and prejudice to the defendant where the prosecution’s psychological expert interviewed the defendant without his lawyer about his defense strategy, and later testified about that information.{13} 13 Sanborn v. Parker, 629 F.3d 554, 569 (6th Cir. 2010). On appeal, however, the Sixth Circuit ruled that there had been no government intrusion into attorney-client privilege. The court explained that this was, first, because the testimony was only admitted at the penalty phase of the trial, after any trial strategy had ostensibly been disclosed.{14} 14 Id. at 570 (The psychologist, “could ask about his strategy because she already kn[e]w what his strategy was.”). Second, because the meeting between the psychologist and the defendant was an unprivileged conversation “that produces answers that do not implicate Weatherford’s concerns.”.{15} 15 Id.
