Guns, Fruits, Drugs, and Documents: A Criminal Defense Lawyer's Responsibility for Real Evidence

63 Stan. L. Rev. 813 (2011)

56 Pages Posted: 9 May 2012

See all articles by Stephen Gillers

Stephen Gillers

New York University School of Law

Date Written: April 20, 2011

Abstract

A criminal defense lawyer may need to read a document, test a weapon, or analyze a substance in order to advise a client. Or there may be no such need but a client may show up at a law office with an illegal weapon, contraband, or stolen property. In either event, what should a lawyer do with the item following any evaluation? What should she do if her client reveals where a weapon, contraband, or stolen property is hidden? Some cases say that a lawyer who receives or retrieves an item of real evidence must give it to the authorities after examining it. But because the item may implicate the client in a crime, the client may instead withhold it or the lawyer may refuse to accept it, even if the lawyer needs to evaluate it. Or a lawyer may choose not to retrieve a hidden item if she must then deliver it to the authorities. Other cases say that after evaluation, a lawyer may return an item to the source if possible. But is that the right rule when the item is stolen property, a dangerous weapon, or drugs? And what if return is not possible? This Article argues that the holdings of these cases, and secondary authorities that agree with them, are wrong. They impede the need for informed legal advice. They frustrate return of stolen property. And where the item is a weapon or drugs, they endanger public safety. This Article proposes solutions that avoid these results while protecting the legal rights of clients and the interests of law enforcement and the public.

Keywords: criminal defense, real evidence, ethical duty of defense counsel, obstruction of justice

Suggested Citation

Gillers, Stephen, Guns, Fruits, Drugs, and Documents: A Criminal Defense Lawyer's Responsibility for Real Evidence (April 20, 2011). 63 Stan. L. Rev. 813 (2011), Available at SSRN: https://ssrn.com/abstract=1816448

Stephen Gillers (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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