'Waiver' Raised to the Second Power: Waivers of Evidentiary Privileges by Lawyers Representing Accused Being Tried in Absentia

29 Pages Posted: 15 Jan 2005

See all articles by Francis A. Gilligan

Francis A. Gilligan

U.S. Court of Appeals for the Armed Forces

Edward J. Imwinkelried

University of California, Davis - School of Law

Abstract

This article addresses an issue posed in United States v. Marcum, 2004 CAAF LEXIS 832 (U.S.C.A.A.F., Aug. 23, 2004). The question presented is whether a defense counsel representing an accused being tried in absentia may waive an evidentiary privilege held by the accused. Admittedly, fact situations such as Marcum are rare. However, Marcum raises two, much broader issues. One is the extent of an attorney's implied-in-law authority to waive a privilege held by a client. The other, deeper issue is the test for forfeiture of an accused's constitutional rights. Unfortunately, little has been written on that subject. However, in 1977 Professor Westen proposed a test for forfeiture (Westen, Away from Waiver: A Rationale for the Forfeiture of Constitutional Rights in Criminal Procedure, 73 MICH.L.REV. 1214 (1977)). In this effect, this article resurrects Professor Westen's proposal. We believe that the analysis in the article demonstrates both the soundness and the utility of the proposed test.

Suggested Citation

Gilligan, Francis A. and Imwinkelried, Edward J., 'Waiver' Raised to the Second Power: Waivers of Evidentiary Privileges by Lawyers Representing Accused Being Tried in Absentia. South Carolina Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=648783

Francis A. Gilligan

U.S. Court of Appeals for the Armed Forces

450 E. Street N.W.
Washington, DC 20442
United States

Edward J. Imwinkelried (Contact Author)

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States

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