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COA: lawyer-client privilege protects information

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A defendant's belief that his right to seek exculpatory evidence trumps the attorney-client privilege is incorrect, the Indiana Court of Appeals ruled today.

In Rusty R. Skinner v. State of Indiana, No. 55A01-0811-CR-543, Rusty Skinner sought to compel his prior attorney to provide information that would allegedly impeach witness Jason Wingler's testimony. Wingler was expected to testify that Skinner told him information that would be contrary to Skinner's self-defense claim. Skinner faced charges of attempted murder, robbery, carjacking, and operating a vehicle while intoxicated for attacking a man and taking his property and car.

Skinner's attorney previously had represented Wingler, so he knew of information materially adverse to Wingler. Skinner's attorney filed a motion to withdraw upon learning Wingler was called to testify, which the court granted.

Skinner, through his new attorney, filed a motion to compel his previous attorney to provide the alleged evidence that would impeach Wingler's credibility. The trial court denied the motion, and the Court of Appeals accepted Skinner's interlocutory appeal.

For information sought in a criminal case to be properly discoverable, the factors of particularity, relevance, and paramount interest in nondisclosure must be balanced. In this case, the paramount interest is the attorney-client privilege. Attorneys aren't required to testify regarding confidential communications made to them during the course of their professional business unless the testimony would meet one of the six exceptions under the Indiana Rules of Professional Conduct.

The information sought by Skinner doesn't fall under any of those exceptions, wrote Judge L. Mark Bailey. In addition, Skinner has access to other information that could help him impeach Wingler, such as Wingler's criminal history of crimes of dishonesty and that Wingler is asking for a guaranteed sentence modification in exchange for his testimony.

"Based on the relevance of the material, its availability from other sources, and the nature and importance of any interests invaded, we conclude that the information sought is not discoverable due to the protection provided by the attorney-client privilege," the judge wrote.

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  1. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  2. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  3. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  4. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  5. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

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