Assignment: Post 2 and 3
Review the assigned Application question set for the other 1/2 of the class. Select at least two comments from students responding to that set and either argue against their posts or provide additional support to bolster their arguments (the choice is yours). You should cite at least one case to support your position in each of your posts.
Application Questions: “1. At Mr. Smith’s trial for murdering the first Mrs. Smith, is testimony of his confession to the second Mrs. Smith admissible?
2. If the second Mrs. Smith does not wish to testify, but her testimony is crucial to gaining a conviction, can she be compelled to do so?”
“3. Is the attorney compelled to testify about Jonathan’s confession regarding the murder?”
Comment 1:
Is the attorney compelled to testify about Jonathan’s confession regarding the murder?
Attorney-client privilege protects your communications with an attorney from being shared with other parties. You can freely discuss the criminal case with your attorney with out any fears. This applies if you are innocent or guilty. The attorney can’t be compelled to disclose any information discussed with the client. The court also can’t force the attorney to testify against their client or even provide information to the other party. This privilege gives you the peace of mind to say anything your lawyer and know that it will be kept a secret. Privilege applies in all types of criminal cases, assault, drug crimes, DUI cases, homicide, theft, and sex crimes. With that being said, No, the attorney is not compelled to testify about Jonathan’s confession regarding the murder. Reference In re von Bulow 828 F.2d 94 (Second Circuit, U.S Court of Appeals, 1987) a defendant previously acquitted of attempted murder of wife is not being sued by wife. This defendant is counting on the attorney-client privilege to be able to win this lawsuit. May the attorney advise Jonathan regarding how to deal with the gun? Keeping in mind two important public policies, the policy supporting the attorney client privilege and the policy which prohibits an attorney from engaging in the obstruction of justice. It would have been best if Jonathan would have kept that detail from the attorney since the attorney cannot advice Jonathan what to do with the weapon other than turn it in to the authorities. 1.) Rodriguez, A. (2022, March 12). Breaking down attorney-client privilege: What it means and how it can affect your case. The Rodriguez Law Group. Retrieved October 19, 2022, from https://www.aerlawgroup.com/blog/breaking-down-attorney-client-privilege-what-it-means-and-how-it-can-affect-your-case/ 2.) Www.wvodc.org. (n.d.). Retrieved October 19, 2022, from http://www.wvodc.org/pdf/lei/Chronologic/lei-98-01.pdf WC:300
Comment 2: Because of attorney client privilege, the attorney is not compelled to testify about Johnathan’s confession regarding the murder. According to Attorney-FAQ, the lawyer is still bound by confidentiality to not disclose that communication to others even if the client confesses. Even if the lawyer is called as a witness in court and is asked about the communication between him/her and the client, the lawyer must claim privilege and refuse to answer. The attorney should not assist Jonathan is concealing evidence due to the Crime Fraud Exception to the attorney client privilege. “If the client ask the attorney for help in committing a crime, the attorney is not privileged to refuse to testify as to what the client asked.” (Marlowe, pg 372). Jonathan’s attorney should not assist him in concealing evidence, he should not advise Jonathan regarding how to deal with the gun. The attorney should withdraw from the case in order to not disclose testimony by Jonathan. The Crime Fraud Exception applies if the client was in the process of committing or intended to commit a crime or fraudulent act, and the client communicated with the lawyer with intent to further the crime or fraud, or to cover it up. What if client confesses to attorney?, Attorney-FAQ, https://attorney-faq.com/what-if-client-confesses-to-attorney
Marlowe, J. D. (2016). Evidence for paralegals (5th Ed.). Wolters Kluwer
The case: “Jonathan came to a prescheduled appointment with his attorney, who was representing him on a burglary charge. When Jonathan was sure that he was alone with his attorney, he removed a package from his jacket, which he claimed contained a gun that he used to kill the man with whom he had committed the burglary. He asked his attornbciey to hide the gun for him or to tell him what to do with it.
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