Getting the Facts Straight: Articles by Leslie Budewitz

Stolen Evidence

In a mainstream novel I recently read–and enjoyed–a legal secretary tells the protagonist that an object he took from a murder victim’s home can’t be used because stolen evidence is inadmissible.

Now that’s just pure fiction. Nothing in the Rules of Evidence precludes the use of stolen evidence–unless it was stolen by the police, which is a whole ‘nuther matter, and not one we’ll talk about today.

So, what should have happened when the client’s son walked into the lawyer’s office with stolen evidence? First, the secretary should have been very careful what she discussed with him. While it’s tempting to share information with family members, the attorney-client relationship is with the client, not the family. The lawyer’s obligations are to the client–regardless who’s paying the bill. That may mean drawing some lines–not always easy, or comfortable. More often, it means seeking and accepting information from relatives, while exercising extreme care in what is said in return. The client gets to make the final decision, and should be consulted before critical information is shared. Revealing information to a non-client could also violate the attorney-client privilege, which belongs to the client and is waived if the information is shared with a third person. As well, relatives don’t always have the same goals and interests–especially if the evidence could implicate them, or someone else close to them. Ratchet up conflict by creating relatives who refuse to be left out of the loop.

Keep in mind that staff are bound by the same rules as lawyers on issues like confidentiality and conflicts of interest.

Next problem: The secretary should not have made a pronouncement about what’s admissible in court and what isn’t. Experienced legal secretaries can be very knowledgeable, but good ones are careful not to step into the role of the lawyer and to avoid offering legal opinions. To her credit, the fictional secretary did tell the client’s son to show the object to the lawyer, and he promptly did. The lawyer quickly recognized its significance to the defense. That’s when things get tricky.

An object has evidentiary value because of what it demonstrates or suggests–that is, whether it makes the existence or non-existence of a material fact more or less probable. Whether the object was stolen won’t usually affect that determination. But the theft may raise other questions: where has the item been, has it been tampered with, why was it stolen, and is the thief credible? In other words, as lawyers say, “it goes to the weight” of the evidence, not its admissibility–that is, how much credence and value the jurors should give it.

In that story, the criminal investigation was incomplete, but far enough along that the crime scene had probably been released. The police either did not find the object–or more likely, given its nature, didn’t think the item had any evidentiary value. Under the U.S. Supreme Court decision in Brady v. Maryland (1963), prosecutors have an obligation to disclose to the defense any “exculpatory evidence”–meaning material evidence helpful to the defense–even without a specific request. Failure to do so is reversible error, if the appeals court concludes that the evidence was material and could well have created a reasonable doubt about guilt. In Brady, a murder case, the prosecution withheld a co-defendant’s statements admitting the actual killing. Failure to disclose was clearly reversible error. In the fictional case, if prosecutors had the object and knew its potential impact, they would have been required to disclose it.

But the defense lawyer quickly recognized the object’s import. So what are his obligations? Brady doesn’t apply to the defense. Why? Because in a criminal case, the government has the burden of proving its case beyond a reasonable doubt, while the defense doesn’t have to prove–or disprove–a thing.

Still, defense counsel may be required to disclose the evidence in the discovery process, and even if not, may choose to do so for other reasons. “Discovery” is the legal process of exchanging information about the case. In olden days, trial was often by surprise, but in the modern era, with codification of the Rules of Civil and Criminal Procedure and the Rules of Evidence, the system trends toward disclosure. Discovery is limited to facts–neither party has to reveal its strategy or arguments.

In some states, the rules require reciprocal discovery. Others require advance disclosure of persons known to have relevant information, or of witnesses, exhibits, and physical evidence the parties intend to use at trial. Written notice of certain defenses may be required, most notably the intent to rely on an alibi. Disclosure allows the other side to investigate and respond appropriately. Disclosure also promotes “judicial economy”–meaning that trials will proceed more smoothly and quickly, and unnecessary trials will be avoided.

Plus, disclosure could give defense counsel sufficient grounds for dismissal, or for negotiating a plea to a lesser charge.

Back to the fictional case: If the crime scene hadn’t been released, the defendant’s son could be charged with tampering with evidence–or the equivalent local crime. Prosecutors could charge him with theft. Make it more or less likely depending on how much heat you want to put on your character. The lawyer could also be charged with receipt of stolen property, another reason why he or she would probably report the incident to the prosecutor. Receipt of stolen documents may be one charge in a possible prosecution against WikiLeaks, for publication of documents known to have been obtained without authorization.

Bottom line: Be careful with your assumptions. Stolen evidence may be admissible–if it’s relevant. Problems in its acquisition go to weight, not admissibility. Court rules and ethical obligations bind staff as well as lawyers. An attorney’s obligations are to the client, not the family. Prosecutors must disclose “exculpatory evidence.” Local rules on disclosure of other evidence vary–check them out. And remember that there may be good reasons for disclosing information even when not required, if it can help the client. At any point along the way, things can go wrong–and for a fiction writer, that’s good.