The Legal Ethics of Real Evidence: Of Child Porn on the Choirmaster's Computer and Bloody Knives Under the Stairs
82 Pages Posted: 7 May 2014 Last revised: 15 Nov 2014
Date Written: November 2014
With little guidance from the Model Rules of Professional Conduct and continuing confusion on professional obligations, questions about engagement with real evidence continue to bedevil criminal defense lawyers, incite prosecutors, generate disputes, and attract judicial attention.
Where should we draw that line between what is demanded by the professional duties of zealous advocacy and client confidentiality and what constitutes obstruction of justice? When may a document or object that could conceivably be relevant in some future investigation or proceeding be destroyed, altered, or removed? May a criminal defense lawyer take possession of evidence of a crime for purposes of analysis, even if forensic characteristics are altered? What should the lawyer do with real evidence afterward? May the lawyer ever retain real evidence without being accused of impeding access? May the lawyer return evidence to where it was found or to the person who delivered it? What advice should the lawyer give to the possessor? And what of the problem of material that may not merely be evidence but also may constitute contraband?
This Article critically examines the law of real evidence under the search light of professional responsibility, attorney-client confidentiality, and the constitutional rights of criminal defendants.
Keywords: legal ethics, lawyer ethics, professional responsibility, attorney-client confidentiality, real evidence, physical evidence, criminal procedure
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