State Ex Rel. Sowers v. Olwell
16 A.L.R. 3d 1021, 64 Wash.2d 828, 394 P.2d 681 (1964)
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Rule of Law:
The attorney-client privilege protects confidential communications from a client but does not permit an attorney to conceal physical evidence of a crime. After a reasonable period for inspection, an attorney has an affirmative duty to turn over such evidence to the prosecution, which must then refrain from disclosing the source of the evidence to the jury at trial.
Facts:
- On September 7, 1962, Henry LeRoy Gray and John W. Warren were involved in a fight.
- Warren died from knife wounds sustained during the altercation.
- Gray was taken into police custody on or about September 8, 1962, and admitted to stabbing Warren.
- On September 10, 1962, attorney David H. Olwell was retained to represent Gray.
- After conferring with his client, Gray, Olwell came into possession of a knife, which was presumed to have been located based on confidential information from Gray.
- A coroner's inquest was convened to investigate Warren's death.
- Olwell was served with a subpoena duces tecum requiring him to bring to the inquest all knives in his possession relating to Henry LeRoy Gray.
- At the inquest, Olwell refused to produce the knife or answer questions about it, asserting the attorney-client privilege and his client's privilege against self-incrimination.
Procedural Posture:
- Attorney David H. Olwell was served with a subpoena duces tecum to produce a knife at a coroner's inquest.
- At the inquest, Olwell refused to comply with the subpoena, asserting privilege.
- Olwell was cited to appear in the Superior Court of King County, the state's trial court.
- The Superior Court found Olwell in contempt of court for his refusal to comply.
- The court ordered Olwell to serve two days in jail unless he purged the contempt within 10 days.
- Olwell (appellant) appealed the contempt order to the Supreme Court of Washington.
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Issue:
Does the attorney-client privilege or the client's Fifth Amendment privilege against self-incrimination permit an attorney to refuse to produce physical evidence of a crime that was obtained as a result of a confidential client communication?
Opinions:
Majority - Donworth, J.
No. While the subpoena was invalid because it would have forced the attorney to testify about confidential communications, an attorney cannot permanently withhold physical evidence of a crime under a claim of privilege. The court established a balancing test between the attorney-client privilege and the public's interest in criminal investigations. Communications from the client are privileged, but physical evidence is not. An attorney may retain such evidence for a reasonable period to examine it in preparation for a defense. Following this period, the attorney, as an officer of the court, has an affirmative duty to turn the evidence over to the prosecution. To preserve the client's rights, the prosecution is prohibited from revealing the source of the evidence at trial. The court also held that the privilege against self-incrimination is personal to the client and cannot be asserted by the attorney on the client's behalf with respect to physical evidence.
Analysis:
This decision establishes a crucial ethical and legal duty for criminal defense attorneys who come into possession of physical evidence. It distinguishes between testimonial communications, which are absolutely protected by privilege, and physical objects, which are not. The case creates a novel two-part rule: the attorney has a duty to turn over the evidence, and the prosecution has a corresponding duty to conceal its source. This balancing act seeks to prevent attorneys from becoming depositories for criminal evidence, thereby obstructing justice, while still protecting the defendant from the severe prejudice that would arise if the jury knew the evidence came from their own lawyer.
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