The Sixth Amendment to the United States Constitution assures the defendant the right to confront and cross-examine adverse witnesses. Under California Evidence Code section 594, “a client. . .has a privilege to disclose or refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by (a) the holder of the privilege, [or] (b) a person who is authorized to claim the privilege by the holder of the privilege.” Both the right to confrontation and the attorney-client privilege have long been recognized at common law, so what happens when the two directly conflict?
The Ninth Circuit Court of Appeals, sitting en banc, recently addressed this issue in Murdoch v. Castro (No. 05-55665; 2010 DJDAR 9274). Appellant Charles Murdoch was charged with first-degree robbery-murder. One of the witnesses against Murdoch was Dino Dinardo, a person who confessed to the robbery-murder and implicated Murdoch in the crime. At Murdoch’s trial, Dinardo testified that Murdoch had actively participated in the offense, despite the fact that Dinardo had previously written a letter to his attorney stating that his confession was coerced and Murdoch was not involved in the robbery-murder. However, the trial court excluded the letter based on attorney-client privilege, and Murdoch was life in prison without the possibility of parole. After exhausting his state avenues of appeal, Murdoch filed for habeas relief in federal court for violation of his Sixth Amendment right to confrontation.
To grant federal habeas relief for a state conviction, the state conviction must be “contrary to, or involve an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” (28 U.S.C. 2254(d)(1).) A plurality held that, under this deferential standard, there was no explicitly established U.S. Supreme Court precedent on this issue and, consequently, Murdoch was not entitled to relief. The Ninth Circuit plurality declined to determine whether, despite the lack of an explicit pronouncement by the U.S. Supreme Court, the U.S. Constitution did recognize the primacy of the Confrontation Clause over attorney-client privilege and, if so, under what circumstances.
The United States Supreme Court cases dealing with the conflict between the Confrontation Clause and other rights and privileges are Crawford v. Washington, 541 U.S. 36 (2004), Davis v. Alaska, 415 U.S. 308 (1974), and Douglas v. Alabama, 308 U.S. 415 (1965).
In Crawford v. Washington, petitioner stabbed a man who he suspected of raping his wife. Under Washington’s marital privilege law at the time, a spouse generally could not testify against the other spouse without the other spouse’s consent. In a criminal proceeding against the husband for attempted murder, the prosecution sought to use potentially damaging statements made by the wife, who declined to testify under state marital privilege law. The husband argued that the wife’s statements could not be used against him because he had not had an opportunity to cross-examine her. After a thorough analysis of the historical underpinnings of the right to confrontation, the Court determined that testimonial statements could not be used against the defendant unless the declarant was unavailable and was subject to a prior opportunity for cross-examination. Since the husband had no opportunity to cross-examine his wife prior to her invocation of the marital privilege, his right to confrontation was violated by the admission of her testimonial statements at his trial.
In Davis v. Alaska, petitioner was on trial for burglary. The main witness for the prosecution was a 16-year-old minor with a juvenile criminal record. The prosecution moved to disallow any reference to the minor’s record during cross-examination, which the trial court granted. Because “[c]ross-examination is the principal means by which believability of a witness and truth of his testimony are tested,” the Court ruled that the trial court violated petitioner’s right to confrontation. (Davis, 415 U.S. at 316.) The Court concluded that “the right of confrontation is paramount to the State’s policy of protecting a juvenile offender.” (Id. at 319.)
In Douglas v. Alabama, petitioner and an accomplice witness were tried separately for assault with intent to murder. The witness was tried first and convicted. At petitioner’s trial, the prosecution called the witness, but on advice of his counsel, the witness asserted his right not to incriminate himself and refused to answer the prosecutor’s questions. The trial court granted the prosecutor’s request to treat the witness as hostile and, on cross-examination, the prosecutor proceeded to read a document alleged to be the accomplice’s confession for the stated purpose of refreshing the witness’s recollection. The Court recognized that right of confrontation was applicable to the states and determined that the prosecutor’s tactic elicited the equivalent of testimony from a witness that petitioner could not cross-examine. Thus, his constitutional right to confrontation was violated.
Every U.S. Supreme Court case that has explored the tension between the Confrontation Clause and other rights and privileges has determined that the defendant’s right to confront adverse witnesses has preeminence over the conflicting right or privilege.
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