United States v. Leroy Kendrick
331 F.2d 110, 1964 U.S. App. LEXIS 5693 (1964)
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Rule of Law:
The attorney-client privilege protects the substance of confidential communications from a client to an attorney, but it does not extend to the attorney's observations of the client's physical characteristics, demeanor, and apparent mental competence, as these are not typically intended to be confidential communications.
Facts:
- The petitioner, Kendrick, had a long history of incarceration and spent time in reformatories and prisons from the age of nineteen.
- In June 1952, North Carolina courts adjudicated Kendrick insane and committed him to an institution for the criminally insane.
- Kendrick was again remanded to a North Carolina state hospital for the insane, where he stayed from January 13, 1959, to March 16, 1959.
- Kendrick alleged that he was in an automobile wreck in June 1959 that caused him to lose his memory.
- Between July and September of 1960, Kendrick committed three thefts from interstate commerce.
- Kendrick was tried for these thefts from November 17-23, 1960.
- Kendrick alleged that he was insane and suffering from amnesia during his 1960 trial, rendering him incompetent to stand trial.
- After his conviction, while in prison, Kendrick claimed he received psychiatric treatment, including electric shock treatments and a brain operation, which caused him to regain his memory.
Procedural Posture:
- Kendrick was tried and sentenced to seven years in prison in a federal trial court in November 1960 for thefts from interstate commerce.
- Subsequently, Kendrick filed a motion under 28 U.S.C.A. § 2255 in the U.S. District Court (a federal trial court) to vacate his sentence.
- The basis for the motion was that Kendrick claimed he was mentally incompetent at the time of his 1960 trial.
- The District Court held a hearing on the motion, during which Kendrick's former trial counsel testified for the Government, over objection, that Kendrick appeared sane and competent during the trial.
- The District Court denied Kendrick's motion to vacate the sentence.
- Kendrick, the petitioner, appealed the District Court's denial to the United States Court of Appeals for the Fourth Circuit.
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Issue:
Does the attorney-client privilege bar a trial attorney from testifying in a post-conviction proceeding about their observations of the client's cooperativeness, demeanor, and mental competence during the time of representation?
Opinions:
Majority - Per Curiam
No, the attorney-client privilege does not bar such testimony. The privilege protects the substance of confidential communications, not the fact that communications occurred or the observable characteristics of the client. An attorney's observations of a client's demeanor, responsiveness, cooperativeness, and logical reasoning are not confidential communications intended to be protected by the privilege. These are matters observable by anyone who might interact with the client. Therefore, the trial counsel's testimony about Kendrick's apparent competence and ability to assist in his own defense was properly admitted. However, the case is remanded because the district court's overall finding of competency was based on inadequate evidence, particularly the testimony of an FBI agent interpreting old psychiatric reports without expert assistance.
Concurring - Sobeloff, Chief Judge, and J. Spencer Bell, Circuit Judge
The attorney's testimony regarding his client's mental competency should have been barred by the attorney-client privilege. While agreeing with the remand, this opinion argues that the lawyer's testimony was inadmissible. An attorney's conclusions about a client's mental competency are not merely 'facts observable by anyone'; they are inextricably intertwined with the privileged communications that occur within the attorney-client relationship. Admitting such testimony creates an impossible dilemma for the client: either waive the privilege entirely to conduct a meaningful cross-examination about the basis for the lawyer's opinion, or let the damaging conclusory testimony stand unchallenged. Raising the issue of competency is not an attack on the lawyer that would justify waiving the privilege.
Analysis:
This decision refines the scope of the attorney-client privilege by creating a clear distinction between protected confidential communications and unprotected observable characteristics. It establishes that a lawyer's testimony about a client's demeanor and apparent competence is an exception to the privilege, providing courts with a valuable source of evidence in post-conviction competency hearings. However, the sharp division between the majority and concurrence highlights the ongoing tension in this area, raising concerns that this exception could chill open communication between clients and attorneys, as clients may fear their behavior will later be used against them by their own counsel.
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