25 April 2005

Short and . . . Sweet?

So I'm looking at opinions as to attorney-client privilege and I come across this unpublished gem: Prince v. Commonwealth, No. 1347-92-1

There are three questions and the third is: Whether the court erred "in admitting John H. Underwood's testimony, which violated the attorney-client privilege."

The answer?
III. Violation of Attorney-Client Privilege

We have reviewed the evidence concerning Underwood's testimony and find no error in the trial court's admission of his testimony.
That's it. No muss, no fuss. None of those annoying legalities.


Anonymous said...


That's as good as those gems I've seen put out by my Supreme Court that dismiss appeals because "certification was improvidently granted"... by the very same Court. Hmm.

Mister DA said...

So, what were the facts? Maybe the court's reasoning is obvious? Or obviously wrong? But as an appelate attorney who often deals with matters that amount to waiver of the Privilege, I always like to know the background.

Ken Lammers said...

Spoilsport ;-)

Here are the facts:

"Appellant's convictions stem from a robbery of the Investors Savings Bank (bank) that occurred on October 15, 1991. At approximately 11:30 a.m., John H. Underwood (Underwood), the Portsmouth Public Defender, observed appellant standing outside Underwood's office that was located four blocks from the bank. The bank was robbed approximately fifteen minutes later. On that date, Underwood was appellant's court-appointed attorney in a pending probation violation matter. Underwood consulted other members of the legal profession as to whether he could ethically testify and, after being relieved as appellant's counsel in the probation matter, agreed to tell the police what he had observed. Appellant's pretrial motion to exclude Underwood's testimony was denied.

At trial, Underwood described the clothing appellant was wearing when he observed him that morning as a black baseball cap, on which was written the word "Boss," a gray paisley shirt, and a pair of black denim jeans."

I think the court's finding is probably right but it would be nice to at least see a smidgen of reasoning. After all, the only reason that the PD noticed the guy was because he was a client.

Mister DA said...

Makes sense. He didn't testify to anything that arose from confidential communications or other information he received from the defendant. I'm assuming, of couse, that he was not allowed to testify to the basis for his knowledge of defendant's identity, just htat he knew him and saw him at such an such a time, wearing certain items of clothing. Nothing that any other acquaintance of the defendant's couldn't have observed.