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If I give something to my lawyer, can I expect him to keep it away from the police?
Some defendants want their lawyers to hold on to an
incriminating tangible object, such as a knife that was used in a stabbing or
documents showing income that the defendant failed to report to the IRS.
Because what they say to their lawyers is confidential, many defendants assume
this protection extends to objects, too, and that giving these objects to their
lawyer will prevent the police from seizing them. However, if an object is an
instrumentality of a crime (the means used to commit a crime, such as a knife
used in a stabbing), a lawyer has to turn it over to the police. Defendants
can’t conceal instrumentalities of crime by giving them to their attorneys.
Example: Sly Sims rushes into the office of attorney, Sue Menow,
and hands her a knife. Sly tells Sue, “This is the blade that I stuck Gibson
with. Keep it safe so the cops don’t find it.” Sly is eventually arrested and
charged with stabbing Gibson. Sue has to turn the knife over to the police
because it is the instrumentality of a crime. However, Sue must keep what Sly
told her confidential, so she would have to turn over the knife anonymously.
Sue could not reveal how she acquired the knife or her conversation with Sly.
Example: Same case. Assume that instead of handing Sue a knife,
Sly Sims phones her and says, “I tossed the knife into the bushes behind the
bowling alley on 8th Avenue.” Sue goes to the location, looks at the knife, and
leaves it exactly where it is. Sue does not have to tell the police where the
knife is. Because Sue did not move the knife, she did not interfere with the
police’s ability to find the knife on their own. And she cannot reveal what Sly
Sims told her, because that is confidential.
Example: Same case. Again, Sue gets a phone call from Sly Sims
telling her the location of a knife used in a stabbing. Sue goes to the
location and removes the knife so that she can have it tested. Because Sue
removed physical evidence from its original location, she has an obligation to
turn it over to the police. She probably also has to reveal exactly where she
found it (see Alhambra Police Officers Ass’n v. City of Alhambra Police
Dep’t., 7 Cal. Rptr. 3d 432 (2003)), but doesn’t have to say how she knew
where it was.
Example: Same case. After stabbing Gibson, Sly Sims
comes into Sue’s office and hands her a letter Gibson wrote, threatening that
he would reveal a past indiscretion unless Sly paid him money. Sly asks Sue to
keep the letter to prevent the police from finding out that he had a motive to
stab Gibson. Sue probably does not have to turn the letter over to the police.
The letter is not a crime instrumentality; it was not the means by which Sly
committed the crime. Thus, Sue can treat the letter as confidential.
by: Sara J. Berman
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