It is routine that people who have been charged with a crime give relevant evidence to their attorneys so that they can obtain legal advice regarding that evidence. After all, without being able to take possession of such items, attorneys would have a difficult time advising clients their cases.
This was what happened when disgraced former Patriot’s star, Aaron Hernandez, gave a cellphone to his attorneys. Since then, a judge has decided that there is probable cause to believe that the data on the cellphone would provide evidence about a July 16, 2012 drive-by shooting in Boston’s South End that killed Daniel de Abreu and Safiro Furtado, and about the intimidation of a witness to that shooting. Hernandez has been indicated for the drive-by shooting, has been indicted for intimidating the witness by shooting him in the head (the witness lived), and has been convicted of the June 17, 2013 murder of Odin Lloyd.
Ever since March, 2014, the government has been trying to get its hands of the phone. It first attempted to get the phone by asking a judge to approve a subpoena for the phone. That attempt failed when, in January, 2015, the Supreme Judicial Court (“SJC”) concluded that the attorney-client privilege protected the defendant against the use of a subpoena to compel production of the cellphone.
Undeterred, the government filed a May, 2015 application for a search warrant, which may seem no different from a subpoena, but there are very significant differences. The biggest difference is that, while a subpoena cannot typically be used to obtain evidence that a client gives to his attorney, a search warrant issued pursuant to M.G.L. c. 276, § 1 does allow such evidence to be obtained from an attorney, so long as “a justice is satisfied that there is probable cause to believe that the documentary evidence will be destroyed, secreted, or lost in the event a search warrant does not issue.” The court decided that Hernandez’s cellphone falls within the definition of “documentary evidence” from that statute.
Ultimately, the court agreed with the government’s argument that once “an attorney’s continued retention of documentary evidence is no longer necessary for the provision of legal services to a client, such evidence is being ‘secreted’ within the meaning of [M.]G.L. c. 276, § 1, and a search warrant properly may issue for its seizure.” In other words, once the attorney has made a copy of the evidence, and so long as the evidence is not itself privileged, the government can obtain the evidence by getting a search warrant for it.
The important phrase here is ‘not itself privileged.’ If the evidence is a note or other communication between the attorney and the client about the case, it will likely be protected from the prying eyes of the government. But if the evidence is the kind of thing that the government would otherwise be able to obtain from the defendant by using a search warrant (i.e. the defendant’s cellphone), then giving the evidence to an attorney will only protect it for as long as it takes for the attorney to make a copy of it.
The final important point from the SJC’s decision is that the government will not be allowed to tell the jury how it got the cellphone, so it will have to prove that the cellphone is authentic in some other way. This is called “the act of production doctrine,” and it applies here because, while the actual data on the cellphone is not privileged, Hernandez’s act of producing the cellphone to his attorney so that he could get legal advice about it is privileged; otherwise, a client would have to worry that he is creating incriminating evidence about himself simply by giving something to his attorney that his attorney needs to properly advise him.
This may seem very complex and confusing; that is because it is. When considering whether or not to retain counsel to represent you against criminal charges, you will do well to consider hiring experienced, well-informed attorneys – like those at KJC Law Firm, LLC – to help you navigate the complicated maze that is criminal law and procedure.