It is, of course, an undeniable fundamental right that communications between a criminal defendant and his or her attorney should be utterly confidential1 and that, under no circumstances, should the prosecution get access to the content of those conversations.
Having said that, what is to be done if a prosecutor gets hold of confidential communications or learns of the substance of these conversations? Must there be an automatic reversal? Or this “fundamental right” to be rendered meaningless yet again, subjected to the legal fiction of harmlessness.
That is the question confronted by the Supreme Court of Washington in State v. Fuentes. In Fuentes, after the defendant was convicted by a jury, but during the pendency of post-trial motions, the prosecutor asked the investigating detective to listen to the defendant’s phone calls from jail to determine if there was any witness tampering going on2:
Detective Johnson informed the prosecutor that he had listened to all of Peña Fuentes’s phone calls, including six conversations between Peña Fuentes and his attorney. The prosecutor immediately informed Detective Johnson that he should not listen to any more calls and that he should not disclose the content of the conversations between Peña Fuentes and his attorney to anyone. The prosecutor also requested that the detective be removed from the witness tampering investigation. The prosecutor then told defense counsel about the eavesdropping. The prosecutor later submitted a declaration stating that Detective Johnson did not disclose the content of the phone calls between Peña Fuentes and his attorney to him.
The defendant filed motions for discovery to get all of Detective Johnson’s notes and reports and a motion for mistrial, both of which were denied.
On appeal, the Supreme Court of Washington is “appalled” that it “must again reiterate that the State cannot eavesdrop on private conversations between a defendant and counsel“. They “strongly condemn ‘the odious practice of eavesdropping on privileged communication between attorney and client.'”
But. There’s always a but, isn’t there?
But. But they strike a bargain. They take the seemingly logical position that where such a “fundamental right” is violated by such “odious” behavior, but there is no chance at all that the defendant was actually prejudiced by it, then there is no need to actually remedy the Constitutional violation.
In other words, did it really matter?
In light of these circumstances, we hold that eavesdropping is presumed to cause prejudice to the defendant unless the State can prove beyond a reasonable doubt that the eavesdropping did not result in any such prejudice.
Look. I see the obvious appeal of this conclusion: why create a per se rule when there could exist factual scenarios where the this violation makes no difference in actuality?
But, if you’ve been paying any attention, you should, like me, be getting sick of these “we promise to behave” rulings. Just like with the other head of the monster that is prosecutorial overreach – Brady and misconduct – this ruling lets the prosecution get away with violating Constitutional rights as soon as they can promise and swear that they didn’t really know anything about it. The burden, to be sure, is on them, but all it takes in one unethical prosecutor to swear – swear! – that he didn’t read the letters from the defendant to his lawyer that somehow ended up in the police file.
When the alternative is for a judge to call a prosecutor unethical and a cheat, don’t you think the vast majority will find “beyond a reasonable doubt” that there was no risk of prejudice?
When we keep cheapening the remedies for the violations of Constitutional rights, we do nothing but water down the rights themselves.
And that’s why, despite this still not being a complicated or nuanced issue, cops will not stop listening to attorney-client communications and they will not top getting and reading materials that are privileged and will not stop violating the Sixth Amendment to the United States Constitution.