Guns, Fruits, Drugs, and Documents: A Criminal Defense Lawyer’s Responsibility for Real Evidence

Stephen Gillers

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“My client came to my office with a loaded gun, burglar’s tools, and a stolen Picasso. These can each be traced to him through fingerprint evidence or in other ways. Theft of the Picasso is headline news, but police say they have no leads. What do I do now?”

A lawyer may be given, or learn the location of, an item that implicates a client in crime. The source may be the client or the client’s friend or relative. A lawyer may have a good reason for taking the item. She may need to inspect, read, or test it in order to advise the client. It may pose a danger to others, a weapon for example. Or a lawyer may want to safeguard stolen property for eventual return. Where the item is neither dangerous nor stolen, the lawyer, though willing, may be unable to return it because the source is in jail, has disappeared, or refuses to accept it.

Each of these variations appears in cases, which uniformly hold that a lawyer who takes but cannot or does not return an item must turn it over to the authorities without being asked. Failure to do so will risk discipline or prosecution for obstruction of justice. What’s more, she must do this even if the item will incriminate her client through fingerprints, ballistics tests, handwriting or otherwise.

Courts also hold that a lawyer must provide the authorities with proof of her source if it was not the client directly, even if it was a location revealed by a client. Evidence of source – for example, a client’s relative or his home – may tie the item to the client and help convict him.

A mandatory turnover rule can harm more than just clients. When faced with a choice between protecting the interests of others and avoiding a duty that will harm their clients, lawyers will do the second. So they may leave stolen property with the thief or in a location where others may find it. They may leave clients or others in possession of dangerous weapons, perhaps the very weapons used in the crime under investigation.

Another remarkable fact is that all the turnover cases involve violent crimes. In some cases, the item was a weapon, in others the fruits of the crime. In a few cases, the item was a writing or document that incriminated the client. But I found no decision holding that lawyers who receive a writing or document implicating a client in a white collar crime – tax evasion or securities fraud, for example – must turn it over.

The current rule can clash with a client’s right to the advice of counsel, embedded both in common law and in the Sixth Amendment if adversarial proceedings have started. A lawyer may refuse to accept an item she might need to inspect or read in order to give a client advice. The current rule may also undermine a client’s Fifth Amendment privilege against self-incrimination. The Supreme Court has told us that a lawyer may refuse to produce subpoenaed items she received from a client in order to advise him if the act of production doctrine would have allowed the client to refuse. That doctrine permits a person to cite the privilege against self-incrimination if the very act of producing a subpoenaed item will be testimonial. It may be testimonial if production confirms the item’s existence, that the target of the subpoena possesses it, or that it is authentic; or if production reveals a crime of which the government is unaware. By circumventing the need for a subpoena, the turnover duty eliminates the client’s opportunity to assert attorney-client privilege or Fifth and Sixth Amendment rights.

Except for an occasional dissent, courts have largely failed to identify, much less reconcile, the competing interests at play when lawyers receive physical evidence of a client’s criminal conduct. Nor have courts explained why the rule appears to differ for white collar clients.

Paradoxically, an opposite rule – one that permitted lawyers to retain real evidence of criminal conduct in a safe place and unaltered – would be beneficial across the board. Stolen property would more likely be returned to their owners. Weapons would be off the street, as would drugs. Lawyers would be free to accept and inspect or read an item in order to give competent advice, without acquiring a duty then to give the item to law enforcement if return was not possible. The state would also benefit because by preserving real evidence, a lawyer assures its availability for trial. Consider the question in the opening paragraph. Under a different rule, the inquiring lawyer could place the gun, the burglar’s tools, and the Picasso in the firm’s safe rather than let the client depart with them.

So why haven’t the courts adopted the opposite rule? Why have they insisted on a turnover duty without examining the perverse incentives it creates? The answer may be short-term thinking. Courts seem to assume that allowing lawyers to retain real evidence will reduce the likelihood that the evidence will ever become available to the state. They also predict that an opposite rule will make law offices the repositories of weapons, contraband, and stolen goods, leading to searches of law offices, which no one relishes.

As it happens, a rule that allows lawyers to receive and hold real evidence that they cannot or should not return to the source need not have these consequences. The state would in fact be in a better position with such a rule than under the current rule because lawyers will be able (even if not required) to preserve evidence, which may otherwise be lost.

How can we avoid harm to the state under a rule that allows a lawyer who cannot return an item of real evidence to the source (because the source has disappeared, is in jail, or will not accept it) or should not do so (because the item is stolen or dangerous) to hold the item unaltered in his or her office? Building on the work of Professor Kevin Reitz, but granting lawyers broader authority than he does to receive and hold physical evidence, I propose that the state can be fully protected if it can subpoena items from the lawyer, leaving her to assert whatever arguments are available to resist the subpoena, or if the state can conduct a non-physical “search” of the lawyer’s office. A non-physical search can take the form of service of a traditional search warrant that requires the lawyer to produce the items identified in it, with the same ability to move to suppress as she would have for a traditional search.

This scheme has a gap which I propose to close. The gap arises if the state does not know the identity of the lawyer representing (or who has represented) a person who becomes the target of the state’s subpoena or search. Subpoenas to or searches of that person will be fruitless if he has given the evidence to his lawyer. The solution is to require lawyers who retain physical evidence, and whose identity is unknown to the state, to record the name of their client or source in a registry created for this purpose. So, for example, if the lawyer in the opening paragraph disarms her client and secures the Picasso, but the authorities do not know that she is the lawyer for the client, she must record that fact in the registry.

The registry can be under the control of the court, a disciplinary committee, or a state bar group. If and when the state has reason to subpoena or search the client, it can ask the registry for the identity of any lawyer who has registered as representing the client. It can then subpoena or “search” her as well and the lawyer can resist the subpoena or move to suppress the fruits of the search. The registry can be similarly used when a third party, say a friend or relative of the client, is the lawyer’s source or if a lawyer delivers non-incriminating evidence (e.g., stolen property that cannot be traced to the client) to the state anonymously.  In this way, in the unusual circumstance where the state does not know the identity of a lawyer who may be holding evidence it aims to get from the lawyer’s source through search or subpoena, it can learn her identity and pursue any rights it may have to the item or proof of the lawyer’s source.

The Article explains in greater detail how the registry would work, using the facts of more than a dozen cases and multiple variables. Its animating purpose is to remove the misguided incentives that the current rule encourages and to safeguard the client’s recognized legal, sometimes constitutional, interests while at the same time protecting (and even enhancing protection for) the legitimate interests of the state.

Acknowledgments:

Copyright © 2011 Stanford Law Review.

About the Author: Stephen Gillers is the Crystal Eastman Professor of Law at the New York University School of Law.

Citation: Stephen Gillers, Guns, Fruits, Drugs, and Documents: A Criminal Defense Lawyer’s Responsibility for Real Evidence, LEGAL WORKSHOP, July 27, 2011, https://legalworkshop.org/2011/07/17/guns-fruits-drugs-and-documents.

Based on: Stephen Gillers, Guns, Fruits, Drugs, and Documents: A Criminal Defense Lawyer’s Responsibility for Real Evidence, 63 STAN. L. REV. 813 (2011).


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