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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. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  2. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

  3. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

  4. Mazel Tov to the newlyweds. And to those bakers, photographers, printers, clerks, judges and others who will lose careers and social standing for not saluting the New World (Dis)Order, we can all direct our Two Minutes of Hate as Big Brother asks of us. Progress! Onward!

  5. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

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