As Rocky Marciano Reminds Us–The Government-Informant Privilege Applies in Civil Actions

What does Rocky Mariciano, one of the greatest heavyweight boxers of all time, have to do with evidentiary privileges? Plenty, as it turns out, for it was a libel case arising from Mariciano’s comments following his famous 1952 fight against Jersey Joe Walcott that solidified the then-evolving theory that the government-information privilege applies in civil actions.

The Government-Informant Privilege

The government-informant privilege protects from compelled disclosure the identity of persons, or informers, who supply information about legal violations to the appropriate law-enforcement personnel. Despite the name’s implication, the privilege belongs to the government, not the informer, but protects informers from retaliation or retribution and encourages citizens to communicate their knowledge of violations of law to government officials.

The privilege is qualified, meaning that it may be overcome upon a sufficient showing of need by the defendant. In a landmark decision, the Supreme Court in Roviaro v. United States, 353 U.S. 53 (1957), explained that the privilege must “give way” when disclosure of the informer’s identity is relevant and helpful to the defense or is essential to a fair determination of the cause. And to determine whether either of these standards is met, courts must balance the public’s interest in keeping the informer’s identity confidential against the defendant’s right to prepare a defense.

There is no fixed rule on when disclosure is required; courts must make the assessment on a case-by-case basis,and have sole discretion to determine whether the evidence justifies disclosure.  The court must consider several factors when balancing the competing interests, such as the crime charged, the possible defenses, significance of the informer’s testimony, and danger to the informant if his identity is revealed.

Does the Privilege Apply in Civil Actions?

The government-informant privilege is routinely asserted in criminal cases, with the typical situation involving a criminally accused seeking to discover the identity of the informer who provided police with the tip that led to the accused’s arrest.  But the question arises whether this privilege may be applied in civil actions and, if so, whether the same standard governs the privilege.

The situation can arise in two situations.  First, a plaintiff may seek disclosure of an informer’s identity during a civil action against the government, such as a civil rights action under 42 U.S.C § 1983.  Similarly, a party involved in a civil action against another private party may seek third-party discovery from a law-enforcement agency.  Second, the question arises whether private entities may assert the government-informant privilege to preclude disclosure of a whistleblower, or one who reported misconduct up the corporate chain of command in addition to a regulatory enforcement agency.

In the latter situation, most courts hold that the privilege does not apply where the whistleblower’s identity is sought from the private entity, but in the former situation, most courts hold that the privilege applies where the informer’s identity is sought from a governmental agency.  And a case involving one of the greatest fights–and knockout punches–of Rocky Marciano’s career illustrates the point.

Rocky Marciano & the Greatest Punch of All-Time

With a record of 49-0, Rocky Marciano is the only boxer to retire as heavyweight champion with an undefeated record and is recognized as one of the greatest boxers of all time.  Marciano won his title on September 23, 1952 when he defeated reigning champion Jersey Joe Walcott by a Round 13 knockout.  Marciano later described the knockout punch as “the best punch I ever landed,” and boxing historians generally agree that Marciano’s punch was one of the greatest punches in all of boxing history.  For a replay of the famous punch, check out this Youtube video.

The Scandal

While most remember Marciano’s famous knockout punch, a scandal involving Jersey Joe Walcott’s manager developed followingthe fight.  In a 1956 article titled “Dirty Work at Ringside” and published in the Saturday Evening Post, Marciano claimed that Walcott’s manager, Felix Bocchicchio, rubbed capsicum Vaseline on Walcott’s boxing gloves and upper part of his body.  And with every punch landed by Walcott and whenever Marciano’s face contacted Walcott’s upper body, the capsicum Vaseline would get into his eyes.  Marciano described his predicament this way:

I’m sure Jersey Joe had nothing to do with this. He was a hellava fighter that night, even without the extra help.  But by the end of the sixth round my eyes were burning.  They burnt so bad during the seventh and eighth roundss I could hardly hold them open.  To see Walcott, I had to lift my head to look out at him from under my lids.  That way I had to hold up my chin in the air.  That way I was a real easy target.

Almost a year later, a Philadelphia policeman told Marciano that a police informant told him that Walcott’s manager, Bocchicchio, obtained the capsicum Vaseline and intentionally rubbed the medicine on Walcott’s gloves and upper body.  The article contained this damning quote:

Somehow or other, this capsicum got to Bocchicchio, and I don’t know why that should be so complicated, because anybody can buy the stuff in a drugstore.  But my informant was afraid for his life if he told how it got to Bocchicchio.  Well, in the ring it was rubbed on Walcott’s gloves and shoulders, and whenever you’d go into a clinch with him or whenever he jabbed you, it would rub off into your eyes.

The Lawsuit and the Government-Informant Privilege

Bocchicchio was not pleased with the article, and filed a libel action against Curtis Publishing Company, the publisher of the Saturday Evening Post.  Bocchicchio’s counsel called the policeman to testify and

October 6, 1956 Saturday Evening Post issue containing Marciano’s capsicum vaseline claims

asked the informer’s name.  The policeman refused, citing the government-informant privilege.  The Court agreed and did not force the policeman to reveal his informer’s identity.  The Court recognized that the privilege is most often applied in criminal cases, but that it applies in civil cases as well. The Court noted that the privilege recognizes citizens’ obligations to communicate their knowledge of violations of law to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.  Not only did the Court apply the privilege in this civil action, it noted that “The Federal Courts have consistently indicated that the strength of this privilege is greater in civil cases such as this than in criminal cases.”  See Bocchicchio v. Curtis Publishing Co., 203 F. Supp. 403 (E.D. Pa. 1962).

The jury returned a defense verdict and Bocchicchio’s libel action was dismissed. By this time (1962), Marciano had defeated Jersey Joe Walcott a second time and retired as the only undefeated heavyweight boxing champion.  And one of the lasting legacies of the famous 1952 bout is the solidification that the government-informant privilege not only applies in civil actions, but does so with greater strength than in criminal cases.

Watch Your Words–Commenting to Jury About Opposing Party’s Privilege Assertion Has Dire Consequences

In a case of first impression in Tennessee, the Tennessee Supreme Court ruled that a prosecutor’s comments during opening statement regarding information protected by the marital or spousal privilege constitutes prosecutorial misconduct.  In State v. Sexton, 2012 WL 4800459 (Tenn. May 29, 2012), the defendant was tried and convicted on two counts of first-degree murder, and sentenced to death. The defendant’s wife testified against him during the preliminary hearing.  Relying on Tennessee’s marital communication privilege, the defendant filed a pretrial motion to suppress communications between him and his wife.  The trial court reserved ruling on the motion, and had not issued a ruling prior to opening statements.

During opening statements, the prosecutor said this to the jury–

You know, a wife can’t testify against her husband …, and he makes sure he’s got [his wife] under his thumb. But a few days after the murder, he makes the mistake of not being at home and [she] runs down to the police station. She contacts the authorities. And when he gets home and she’s not there, he’s worried to death…. He goes and looks for her and finds her talking to officers. He tries to interfere with that interview that’s taking place. But it’s too late. She’s given an interview and she later even testifies against him. But through his manipulation, she’s back on his side now. And of course, you can’t testify—you can’t force a wife to testify against her husband. And he believes he can manipulate and control through either charm or intimidation everybody he needs to….

Some states,  particularly those that follow the Uniform Rules of Evidence, have evidentiary rules that prohibit lawyers from commenting on a privilege claim, see, e.g., Unif. R. Evid. 511 (“A claim of privilege, whether in the present proceeding or upon a previous occasion, is not a proper subject of comment by judge or counsel. No inference may be drawn from the claim.”).  Other states, like Tennessee, do not; and the question arises whether the common law prevents lawyers from commenting on claims of privilege before the jury.

The trial court was not forced to rule on defendant’s marital privilege motion because the State never called defendant’s wife to testify.  But the Tennessee Supreme Court ruled that the prosecutor’s comments amounted to prosecutorial misconduct. Relying on decisions from Alabama and Michigan, the Tennessee Supreme Court held that the prosecutor should not have commented on the exercise of the marital privilege.  The Court found that the prosecution’s aim was to imply that the defendant was preventing his wife from testifying for the purpose of suppressing evidence.  According to the Court, the benefit of the marital privilege is negated if prosectors are permitted to comment on the privilege during opening statement or closing argument. In short, the prosecutor’s comments on the privilege undermined the privilege itself, and amounted to prosectuorial misconduct.

PoP Analysis. This case provides an important roadmap to those states that do not have an evidentiary rule similar to Unif. R. Evid. 511.  Rule 511 provides generally that neither lawyers nor judges should comment on a party’s claim of privilege.  The Sexton case was decided in the realm of prosecutorial misconduct, and is limited to a prosecutor’s comments on the marital privilege; however, it likely foreshadows that courts will not tolerate any lawyer, whether in a civil or criminal matter, mentioning a party’s privilege assertion before the jury.  And while the prosecutor’s violation of this rule resulted in a finding of misconduct, other pentalties or remedies, ranging from special jury instructions to a mistrial declaration, are now on the table as a result of the Sexton ruling.  The take-away is that, even in jurisdictions without Rule 511 or its equivalent, lawyers should refrain from mentioning an opposing party’s privilege assertion when before a jury.  For further discussion, see Johnson v. State, 770 S.W.2d 128 (Ark. 1989) and Bixler v. Commonwealth, 204 S.W.3d 616 (Ky. 2006).

Court Extends Attorney-Client Privilege to “Insurance File” Sought in Bad Faith Litigation 1

The USDC for the Western District of Kentucky recently held that, in third-party bad-faith litigation, Kentucky’s attorney-client privilege protects an insurer’s file from discovery.  In Shaheen v. Progressive Insurance Co., 2012 WL 3644817 (W.D. Ky. Aug. 24, 2012), the adminstrator of the Nadia Shaheen Estate filed a bad-faith lawsuit against Progressive for its alleged delay in settling an underlying wrongful death case against Progressive’s insured.  The plaintiff sought production of Progressive’s “insurance file,” but Progressive refused, arguing that it contained communications between it and its insured.

Kentucky state law was silent on whether the attorney-client privilege covers insurance files from discovery in bad-faith litigation.  In predicting how Kentucky state courts would rule, the Kentucky federal court first noted that other courts had taken three different approaches.  First, some courts permit discovery of the entire insurance file in third-party bad-faith litigation.  Other courts permit insurance companies to preclude disclosure “by rigidly applying the attorney-client privilege.”  And a third line of courts take the middle-road approach by permitting insurance companies to claim privilege, but allowing a plaintiff to overcome the privilege through a sufficient showing of need.

Kentucky recognizes an insurer-insured privilege on grounds that the insured assumes that purpose of his communications is to transmit the information to an insurer-selected attorney.  And on this basis, the federal court predicted that Kentucky law would extend the attorney-client privilege to an insurance company’s file and prohibit compelled disclosure of the file’s contents.