Attorney-client privilege

Okay. Once again, not to get political… but a certain son of a certain sort-of elected leader (sigh) claimed that the attorney-client privilege applied to certain phone conversations between him and his father. Neither of whom are attorneys. But, said Junior, it totally counts because Dad’s lawyers were listening in on the conversation.

Does Junior’s argument have any legal validity? Of course not. But let’s look at the privilege itself.

To take a step back, it’s important to know that, in general, a person’s conversations with another person may be used as evidence. This is true whatever the mode of those conversations: live in person, voice via telephone, electronic via text or email, etc. But there are a few exceptions to this rule, situations where those conversations are protected and where the opposing side cannot “discover” them (i.e., force the other side to hand them over). These exceptions—or privileges—include conversations between physicians and patients, between clergy and penitents, between accountants and clients, between spouses, and between lawyers and clients. Each of these has special rules; today I’m just addressing the final one.

The primary purpose of the rule is to allow clients to be frank with their lawyers, which in turn allows lawyers to be more effective at defending them. In order for the privilege to apply, at least one of the people must be a lawyer, the other person must be that lawyer’s client (or seeking to become one), and the conversation must be about legal matters. Therefore, although I’m a lawyer, a friend who casually chatted with me about his plans for the next day would not be able to invoke the privilege to protect that conversation. And just because Dad’s lawyers were listening to a conversation doesn’t mean the privilege can be invoked.

Even when the privilege applies, there are exceptions. One interesting exception is that it generally can’t be used if one or more parties uses the information to commit a crime. For instance, if Bruce asks his lawyer, Tina, how best to cover up the fraud he plans to commit, that discussion isn’t privileged.

Another twist has to do with perjury. If, because of conversations with the client, the lawyer is aware of the truth of the situation, but then the client lies about those facts on the stand, the lawyer may have the ethical duty to rat him out to the judge. Thus, a lawyer may get caught between her duties to the defendant and her duties to the court. Plot bunny! (Many lawyers handle this situation by refusing to let a client take the stand if they believe the client will perjure himself.)

Furthermore, a client can waive the privilege and voluntarily choose to share privileged communications. Simply discussing the conversation in public constitutes a waiver.

Another exception to the privilege is especially pertinent to Junior’s situation. The privilege is nullified if anyone aside from the attorney and client was present during the conversation. Such as, say, a Russian lawyer who had neither father nor son as a client.

Of course, if certain sons of certain leaders can be this clueless about how the privilege works (or at least pretend to be), so could your characters. So feel free to make this a plot point, if you wish.



Lesser included offenses

This is the third in a series of posts related to James Fields, Jr., who drove his car into a crowd of counterprotestors in Charlottesville, Virginia. His charge was recently upgraded from second to first degree murder. Last week I wrote about the difference between these two charges.

As I said last week, in order to get a first degree conviction, the prosecutor will have to prove that Fields premeditated the killing. That’s going to be somewhat tricky, because there’s no evidence that Fields planned the act more than a few moments in advance. A few moments is legally enough to constitute premeditation, but it makes for a difficult case. What happens if the jury finds insufficient evidence of premeditation?

Well, Fields almost certainly won’t go free. For one thing, he’s also facing about ten other charges related to the incident, including malicious wounding. More importantly, however, the jury could still find Fields guilty of the lesser included offense of second degree murder.

What does that mean? Every crime is made up of individual ingredients, called elements. Prosecutors must prove all these elements in order to gain a conviction. Sometimes two offenses consist of very similar elements. For example, larceny is taking someone else’s property, while robbery is taking someone else’s property through threat or force. Breaking and entering is unauthorized entry into a structure or vehicle; burglary is unauthorized entry into a structure or vehicle with intent to commit a felony or steal something inside. In these examples, larceny is a lesser included offense of robbery, and b & e is a lesser included offense of burglary. Each lesser offense includes some but not all of the elements of the greater offense.

Okay. So second degree murder is intentionally taking human life. First degree is intentionally and with premeditation taking a human life. Second degree is a lesser included offense of first degree. And the law says that when a jury fails to find a defendant guilty of first degree murder, they can still convict for the lesser offense if the prosecutor has proven all the lesser offense’s elements. In Fields’s case, even if the prosecutor fails to prove premeditation, he might prove that Fields intentionally killed the victim.

First versus second degree

I’m in the middle of a series of posts related to the case of James Fields, Jr., who drove his car into a crowd of counterprotestors in Charlottesville, Virginia, killing one person and injuring others. He was originally charged with second degree murder, but the charges have been upgraded to first degree.

So what’s the difference between first and second degree murder?

Both crimes involve the same act: taking a human life. What differentiates them (and all other forms of homicide) is the defendant’s mental state. For second degree, the defendant must intentionally kill. For first degree, he must kill intentionally and with premeditation. In other words, second degree might be a split second decision, but first degree requires some amount of forethought. Because we believe that a planned murder is more blameworthy, first degree carries a more serious penalty than second.

Now, when I say “premeditation,” you may be picturing a villain spending months scheming away, developing the perfect plan to do away with her nemesis. That would certainly count. But the law doesn’t actually require that much. In fact, the defendant might ponder for only seconds before she acts. Or if the killing takes some time—such as when the victim is strangled, for example—the pondering might even take place during the act itself. All that’s required is proof that the defendant had time and opportunity to think about what she was doing to the victim.

It’s also worth noting that the defendant doesn’t have to develop intent to kill any particular person. It’s enough if he decides to create substantial risk to human life in general—such as shooting into a passenger train, setting up a bomb in a public place, placing poison in something people are likely to consume, or dropping a heavy object off an overpass onto a highway.

In Fields’s case, videos show the defendant driving slowly toward the crowd, backing up and then accelerating directly into numerous people. He then quickly reversed again, striking more people before getting away. The prosecutor will have to prove that in those short moments before his foot hit the gas, Fields deliberately decided to strike people with with his vehicle at a substantial speed. If the prosecutor can prove that, Fields may end up convicted of first degree murder.

Next week: What if the prosecutor can’t prove premeditation?


Evolving charges

On August 12, 2017, a group of people were in the streets of Charlottesville, Virginia, counterprotesting white nationalists. James Fields, Jr., a man with a reported fascination for Nazis, apparently deliberately drove his car into a crowd. He killed one person, Heather Heyer, and injured dozens more. Just last week, prosecutors announced they’d be seeking a first degree murder conviction against him. For the next few weeks, I’ll be posting on some issues related to this case.

Today I’m going to talk about how criminal charges might evolve in a case.

In a typical criminal case, a person is arrested by police. The police report will list at least one potential criminal violation; police are supposed to have probable cause to believe that the suspect has committed this crime.

The prosecutor will review the report and decide whether to pursue the case (incidentally, this is one reason why police must have decent writing skills). If the prosecutor opts to go forward, she’ll issue something called a criminal complaint. This will specify the parts of the criminal code which the defendant is alleged to have violated. These charges may or may not be the same crimes named in the arrest report because the prosecutor may find that fewer, additional, or different offenses are better substantiated.

Within a short period of time—usually two business days—the defendant will be arraigned. As part of this process, he’ll be informed of the charges in the complaint.

In Fields’s case, the complaint charged him with second degree murder along with a slew of lesser offenses such as malicious wounding.

After the arraignment, the prosecutor will conduct additional investigations (as will the defense attorney). Eventually there will be a probable cause hearing, the purpose of which is to determine whether there’s sufficient evidence to proceed with the case. That hearing may be a preliminary hearing, in front of a judge, or it may be a grand jury proceeding, in front of a group of citizens. In either case, the prosecutor has to produce enough evidence for the charges to stick. And sometimes, perhaps pursuant to additional evidence that’s been collected, those charges may be different from those in the complaint.

That’s what’s happened in Fields’s case. The preliminary hearing was last week, and the prosecutor opted to upgrade the most serious charge from second to first degree murder. The judge found enough evidence to support first degree, so that’s the charge Fields now faces.

In some cases, charges may continue to evolve after the probable cause hearing. Prosecutors may drop some charges or, pursuant to a plea bargain, defendants might plead guilty to a lesser offense.

Next week: the difference between first and second degree murder.

I swear!

This week’s post is inspired by a news clip, which you can watch here:

The federal government and states require people to take an oath before being sworn into office. Jurisdictions vary as to which offices require the oath. I know California is broad in its requirements, because I had to take an oath before becoming a professor at a state university.

The content of the oath varies a bit, but generally the person swears to uphold the US Constitution and to faithfully discharge the duties of the office. If it’s a state office, the person will also swear to uphold the state constitution and laws.

The person who administers the oath varies as well. It might be a judge or another government official.

While some people may choose to lay a hand on the Bible during the oath, that’s tradition rather than a requirement. In fact, several US presidents have opted out of this. Similarly, although oaths may include the phrase “so help me God,” that phrase can be omitted. (For the record, neither the Bible nor that phrase were included in the mass oath-taking when a bunch of us became professors.)

Some people oppose oath-taking, primarily on religious grounds. In those cases, the person can make essentially the same promises–without the Bible or reference to God. Those are generally called affirmations rather than oaths, but they serve the same purpose.



Hey, you know what it’s time to talk about? Impeachment! Totally from a legal point of view, no political agenda here, la-la-la.

Let’s be clear on the terminology. In the US, impeachment is the bringing of formal charges against a government official, by the US House of Representatives. Impeachment is not a guilty finding–it’s only the beginning of the process similar to an indictment in a criminal case. Government officials may be impeached for “high crimes and misdemeanors.” Whatever that means; the Constitution doesn’t specify.

Impeachment happens when a simple majority of the House votes to bring articles of impeachment. These will specify the offenses with which the official is being charged. The trial itself is held in the Senate. If two-thirds or more of the Senate finds the official guilty, he is removed from office. He may face additional punishments as well, such as being barred from holding future offices. An guilty finding in an impeachment case won’t send the official to prison, but ordinary criminal charges may also be brought against him.

Impeachment can be politically fraught, which helps explain why it has been used rarely. Only two US presidents have been impeached–Johnson and Clinton–and both were acquitted in the Senate. Nixon resigned before he could be impeached. A handful of federal judges have been impeached (including one Supreme Court Justice, Chase, who was acquitted).

Oh, and in case you’re wondering, the articles of impeachment against Clinton and Nixon both included accusations of obstruction of justice, among other things. So, you know, it’s fairly well settled that presidents can be charged with that, despite claims otherwise.


Unhanging a jury

Traditionally, juries have been required to reach a unanimous decision. A few states do allow non-unanimous convictions (such as by a 10-2 vote), but they’re in the minority. So what happens when a jury can’t reach a decision?

If a jury is well and truly stuck, the judge will declare a mistrial. The prosecutor has the option of bringing charges again (double jeopardy doesn’t prevent this), but of course that will involve lots of extra time and money for the government. Plus the accused and any witnesses will have to go through another trial. Judges really, really don’t want this to happen.

If the jury is hung, about half the states allow something called an Allen charge. Allen charges are allowed in federal cases as well. Named after an 1896 murder case, an Allen charge is essentially a plea from the judge to the minority members of the jury, urging them to consider joining with the majority. The charge emphasizes the potential costs of a retrial, and it points out that the evidence was strong enough to convince most of the jurors. It’s worded strongly enough that it’s often called a “dynamite charge.”

The Allen charge is controversial. Many argue that it’s coercive. For that reason and others, about half the states forbid it. In those states, if a jury is deadlocked, a judge may ask them to consider further. But if that gets them nowhere, a mistrial will be declared.

Off to prison again

Last week I had the chance to tour Eastern State Penitentiary, which operated from 1829 to 1971. It was, arguably, the first modern penitentiary in the US. Last week I blogged about its philosophy; this week I have photos!

Like may 19th-century prisons, ESP looks like a fortress from the outside, an intentional part of the design.

 ESP was isolated from the rest of Philadelphia when first built, but the city soon grew around it. It’s only about a mile or so from the city center.

Originally, inmates were kept alone for the length of their confinement. The photo on the left shows a restored cell. Inmates were expected to work in their cell, and were given two daily 30-minute breaks in a tiny exercise yard (that’s what’s on the other side of that little door). They didn’t interact with anyone other than guards and ministers, priests, or rabbis. After a century or so, ESP abandoned this model for a variety of reasons. And as you can see in the photo on the right, the prison decayed considerably after it was closed and before it was reopened for tours.

I got some amazing photos of this place.

That photo on the right is a punishment cell. It’s half the size of a regular one, with no outdoor access.

If you’re in Philly, I strongly recommend a visit to ESP.



Solitary or silent?

This week I’m in the middle of my fifth trip in two months, and this time I’ve transported across the country to Philadelphia. If I’m lucky I’ll get a chance to tour Eastern State Penitentiary (ESP). If I make the tour, I’ll post pics.

So today’s a good chance to discuss two competing early models of prisons. The first of these, called the solitary or Pennsylvania system, was pioneered at ESP in 1829. As the name suggests, inmates were locked up alone and were visited only by prison staff and clergy. The inmates were supposed to work during the day. It was thought that this system was more humane than the models of incarceration otherwise in use, in which large groups of prisoners shared cells–often leading to violence, victimization, and further criminal behavior. It was also assumed that solitary confinement would give inmates the opportunity to consider the errors of their ways and reform themselves. That’s why these prisons were called penitentiaries.

The competing model was called the silent or Auburn system, after Auburn prison in New York. In these prisons, inmates spent the night in solitary cells. During the day they worked together, but they were not allowed to speak to one another. Corporal punishment (flogging) was widely used. This treatment was intended to dehumanize them and turn inmates into obedient factory workers.

The Auburn system was ultimately more popular. For one thing, inmates kept in solitary confinement for extended periods tended to go crazy. Prison overcrowding—a problem even in the 19th century—soon made single-occupancy cells impossible. And from a practical viewpoint, inmates could achieve more work and more kinds of work when they were in groups. This factor became important when people realized the potential profits from prison labor.

Both the Pennsylvania and Auburn systems eventually fell out of favor, replaced by other models of imprisonment. But if you have a story with a 19th-century prison setting, you might want to research which of these models was in use in your jurisdiction.

Does TSA get TMI?

I am fitting in a quick post right after trip #1 and before trip #2 (which will be closely followed by trip #3). Since all of these involve air travel, now is as good a time as any to mention the searches we must go through before getting on a plane.

By any measure, these searches are intrusive. They make us show ID (on my last trip, an agent was jovially playing Guess the Ethnicity of People’s Last Names). They go through all of our personal belongings, often in fine detail. They make us empty our pockets and take off shoes, jackets, and belts. They send us through a machine that allows them to essentially see us naked. And when mysterious blobs show up on the machine, they pat us down. All without the slightest suspicion that we’ve done anything wrong, or that we plan to. Doesn’t that sound like a violation of the 4th Amendment’s prohibition of unreasonable searches and seizures?

The courts don’t think so. They’ve ruled that plane travel constitutes a special circumstance permitting searches that wouldn’t be otherwise allowed. (Other special circumstances involve public K-12 schools and railroad and Customs employees.) When special circumstances exist, the courts take a balancing approach, weighing the degree of the intrusion against the need. Given the potential for hijackers and other violence in the air, the courts have concluded that what TSA puts us through is permissible.

Yeah, I wonder if the SCOTUS Justices have to go through that machine.

If you object to these searches? I guess you can always drive or take a train.

Incidentally, searches can be even broader at international borders. This means not just our physical borders with Mexico and Canada, but also seaports and airports that receive international flights. It also includes areas within 100 miles of our borders—and if you look at a map, you’ll see that this includes some pretty substantial population centers.

On a flight from Paris to Zagreb, I once forgot I had a penis-shaped brioche in my carry-on bag. It amused the French security guys quite a lot. Now I’m off to pack.