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.

Good Tips for Preserving Attorney-Client Privilege During Criminal Investigations

Protecting against disclosure of privileged communications–particularly email communications–can present challenging issues for the criminally accused.  Federal and state prosecutors may, for instance, obtain emails directly from service providers or obtain emails via a search warrant before one is formally charged.  And in these situations, prohibiting prosecutors from reviewing privileged communications is problematic.

In their article, Sealing the Virtual Envelope: Protecting Attorney-Client Privileged Email in Criminal Investigations, lawyers Michele Adelman and Jennifer Behr identify and describe the salient issues and offer practical tips for protecting the privilege in the criminal-investigation setting.  The article, recently published in the Boston Bar Journal, may be accessed at this link.  Thanks to Eric Fullerton and the Boston Bar Journal for permitting access to the article.