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.
FEDERAL CASES
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.
CALIFORNIA CASES
In Vela v. Superior Court, 208 Cal.App.3d 141 (1989), the defendant in a criminal trial attempted to subpoena police records related to statements made by Culver City officers in anticipation of potential civil litigation related to the officers’ conduct during the same events for which defendant was on trial. The officers’ statements were elicited by an investigative team at the Culver City police department which forwards the information to Culver City’s chief of police, who forwards the information to the City Attorney if a civil complaint is filed. Culver City objected to the subpoena based on attorney-client privilege.
The court of appeal held that, on these facts, “adherence to a statutory attorney-client privilege must give way to pretrial access when it would deprive a defendant of his constitutional rights of confrontation and cross-examination.” (Id. at 150-51.) Thus, though Culver City could assert its attorney-client privilege, to the extent that the privilege interfered with the defendant’s constitutional rights, the privilege defers to the defendant’s rights of confrontation and cross-examination.
In People v. Mincey, 2 Cal.4th 408 (1992), appellant and his wife were accused of the brutal murder of their five-year-old son and were tried separately. Evidence indicated that both inflicted severe physical harm to the son, but the wife cooperated with police and chose to testify against her husband at his trial. On cross-examination, the wife asserted her right not to incriminate herself in response to questions from appellant’s counsel related to possible sentencing leniency and a reduction of the severity of the charges against her in return for her cooperation. The Court held that the wife’s refusal to answer those questions violated appellant’s Sixth Amendment right to confront and cross-examine her.
Thus, like U.S. Supreme Court cases, California decisions affirm the preeminence of the Sixth Amendment’s right of confrontation and cross-examination. However, California state courts go even farther than the U.S. Supreme Court by explicitly holding that the Sixth Amendment right to confrontation prevails over attorney-client privilege.
CONCLUSION
The Ninth Circuit’s holding in Murdoch does not mean that it will not recognize any circumstances where the right to confrontation will overcome the attorney-client privilege because the Court was constrained by the deferential standard of review for federal habeas relief for state court convictions. Under a less restrictive standard of review, the Ninth Circuit may be amenable to extrapolating that, based on the reasoning in Crawford, Davis, and Douglas, the U.S. Constitution requires that tension between the Confrontation Clause and attorney-client privilege be resolved in favor of the right of confrontation. In addition, courts can tailor the extent to which attorney-client privilege must yield so as to protect the interest of open and honest communication between attorneys and clients as much as possible.
California state courts have already determined that, where the right to confrontation and attorney-client privilege intersect, the attorney-client privilege must give way. Based on the U.S. Supreme Court’s own precedents, it may follow California’s lead.
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