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58 Am. Crim. L. Rev. 487 (2021)
Two Rights Collide: Determining When Attorney-Client Privilege Should Yield to a Defendant's Right to Compulsory Process Or Confrontation

handle is hein.journals/amcrimlr58 and id is 496 raw text is: TWO RIGHTS COLLIDE: DETERMINING WHEN ATTORNEY- CLIENT PRIVILEGE SHOULD YIELD TO A DEFENDANT'S RIGHT TO COMPULSORY PROCESS OR CONFRONTATION Jackson Teague* ABSTRACT In a criminal trial, the Sixth Amendment's Compulsory Process Clause protects a defendant's right to gather evidence in his favor. Similarly, the Confrontation Clause guards a defendant's right to effectively cross-examine those who bear witness against him. At times, however, these rights collide with a wit- ness's assertion of the attorney-client privilege. The Supreme Court declined to decide how to handle such a collision in Swidler & Berlin v. United States. And the courts that have answered this question have fractured. Some suggest the attorney-client privilege yields to a defendant's Sixth Amendment rights. Some hold that the attorney-client privilege is always impenetrable. Finally, others conduct fact-specific balancing tests to determine whether the informa- tion at issue is sufficiently probative to justify piercing the privilege. This Note contends that each of these approaches misses the mark. It first argues that the categorical approaches to this conflict ignore the Supreme Court's direction to balance a defendant's Sixth Amendment interests against an evi- dentiary rule's purpose when the two collide. It then contends that fact-spe- cific balancing tests disregard a client's need for certainty regarding the attorney-client privilege's scope. After critiquing current approaches, this Note provides a new standard for resolving conflicts between a defendant's Sixth Amendment rights and the attorney-client privilege. Under the proposed standard, the attorney- client privilege will be penetrable unless the relevant communication would subject the privilege-holder to criminal liability. Such a standard both pro- vides a client with certainty regarding when the privilege may be pierced and respects the need to balance a defendant's Sixth Amendment interests against an evidentiary rule's purpose. This, in turn, protects the defendant's constitutional right to put forth probative evidence, while simultaneously ensuring that the attorney-client relationship does not unduly suffer. INTRODUCTION ............................................ 488 I. SHAPING THE LEGAL LANDSCAPE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 490 * J.D., Georgetown University Law Center. I would like to thank Professor Paul Rothstein, John Marinelli, Eleni Ingram, Nicholas Engle, Tom Scott-Sharoni, and Katie Pennell for their thoughtful comments on early drafts of this Note. I would also like to thank the American Criminal Law Review's editors for their invaluable help throughout the publication process. ( 2021, Jackson Teague. 487

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