The recent run of weeks with a few reversals is over now. However, the past two weeks have included a couple of decisions to affirm that have some controversial holdings by the Court.
Whisenant v. State involved an issue regarding attorney-client privilege. Appellant was convicted of three counts of forgery. One of the counts was first charged to another woman named Jane. Appellant called Jane’s attorney and said that she was the one that forged the check and then proceeded to ask what her liability for the crime could be. Jane’s attorney promptly provided this information to the prosecuting attorney’s office, which then dropped the charges against Jane. The issue on appeal arose when Jane’s attorney testified at trial that Appellant called him and confessed to the forgery. Appellant objected on the basis of attorney-client privilege and the trial court overruled because Appellant never hired Jane’s attorney. Although it is debatable whether there was a true intention to seek legal advice, the Court’s language in the decision was so broad to prevent standing to someone to assert attorney-client privilege if they do not hire the attorney. This decision has enormous ramifications. It is daily in the criminal defense world that persons charged with crimes consult with attorneys and admit their guilt prior to retaining the attorney for representation. It would be difficult for an attorney to advise the client of how they would handle the case or possible liability before being hired if the statements the client makes would be admissible in court. This decision is one in which the Court spent too little time refining the rationale for the decision, which could lead to catastrophic results for us in the real world.
BTW how many attorneys would be willing to testify about a confession on a phone consultation? I sure wouldn’t and I can’t imagine that attorney gets much business after this gets out.
Also, in Jones v. State, the Court found that the Confrontation Clause was not violated by the admission of a lab report without the presence of the analyst because the analyst was not demanded in accordance with A.C.A. 12-12-313. Appellant argued that because the State had the analyst on their witness list that there was no need to demand her presence. The Court ruled that Appellant failed to demand the analyst’s appearance and waived any confrontation issues. I have to wonder if this was a ploy by the State to prevent Appellant from demanding the analysts presence or if they canceled her presence after no demand was made. Ultimately, would the analysts presence have made a difference? No. But it’s a lesson to all to make sure and always file a formal demand to cross-examine the analyst.