Five Exceptions to the Defense Attorney Confidence Rule

The Sixth Amendment gives defendants the right to effective representation in criminal court. Attorneys cannot be effective unless they know all the facts about a particular case, whether those facts are favorable or unfavorable. So, both New York and federal laws ensure that communications between attorneys and clients remain confidential. There are only a few defense attorney confidence exceptions.

Outside of these rare exceptions, Rochester criminal defense attorneys never voluntarily betray client confidences. However, they may be legally compelled to do so.

Future Crime

If a client expresses a credible threat to carry out a planned crime for the future, attorneys must legally report that information to authorities, even if the remark is otherwise confidential.

Note that this threat must be credible. If Joe says he wants to blow up the Golden Gate Bridge, that’s not a credible threat. If Joe says he wants to blow up a footbridge near his house, that threat may be credible if his Rochester criminal defense attorney knows that Joe has explosives and expertise.

The remark must involve a future crime. Joe might confess to a litany of prior misdeeds, and all those confessions are confidential between attorney and client, even if the disclosure had nothing to do with the charged crime.

Defense Attorney Confidence and Public Statements

This confidentiality exception usually involves statements made in public places, like restaurants. If someone overhears a confession, that person may testify about that fact in court. Legally, people have a lower expectation of privacy in public places than they do in private areas.

This exception is extremely narrow, as are the other privacy-related exceptions listed below. The Supreme Court just ruled on this issue. In 2018’s Byrd v. the United States, the Justices unanimously ruled that police could not search a rented car without a warrant, even though Byrd was not listed on the rental agreement, because he had a reasonable expectation of privacy.

Jailhouse Confessions via Phone

Sometimes, these confessions fall under the exception of public statements. If an inmate talks loudly on the phone, it’s reasonable to presume that someone else may hear. This defense attorney confidence exception may also apply if a jailer surreptitiously eavesdrops on a conversation, but these instances are easier for Rochester criminal defense attorneys to counter.

In other cases, jailers or other officials monitor calls as a policy matter. Whenever a recorded voice says the call is being recorded for “quality or training purposes,” it means someone may be listening and whatever you say could be used against you.

On a related note, if Joe confesses his crime to a cellmate, the cellmate may testify about that conversation. Joe’s out-of-court statement is not technically hearsay.

Third-Party Presence

This defense attorney confidence exception comes up frequently. Many defendants need or want spouses, parents, or other people to be present during conversations which should be confidential between attorneys and clients. Prosecutors could subpoena these third parties and force them to testify about the conversation.

A Rochester criminal defense attorney can keep these discussions private by arguing that the person’s presence was necessary. For example, if Joe was hearing-impaired and needed a translator, the conference is still confidential.

Subsequent Conversations

As a general rule, if people voluntarily waive their rights, even if they do not understand the consequence of their actions, these waivers are valid. That’s usually true concerning attorney-client confidential communications.

If Joe repeats his tale to his neighbor, the neighbor may testify. But if Joe repeats the conversation to his spouse or his doctor, the discussion may still be confidential, since a separate privilege applies.

Connect with an Experienced Lawyer

Attorney-client conversations are almost always confidential. For a free consultation with an experienced Rochester criminal defense attorney, contact the Law Office of Frank Ciardi. We routinely handle matters in Monroe County and nearby jurisdictions.

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