During a trial recess, Blackmon and his attorney, Paul Canarsky, spoke in a part of the courtroom farthest from Trooper Lowden, who was acting as Blackmon's custodian and stood about twenty-five feet away. The conversation appeared private: Lowden was not invited to join, Blackmon and Canarsky turned their backs toward him, and both whispered. Lowden overheard only about eight or nine words of the conversation. Over defense objection, the trial judge allowed Lowden to testify about what he heard, ruling that the conversation was not privileged.
Issue
Was the conversation between Blackmon and his attorney a confidential communication protected by the lawyer-client privilege, so that Trooper Lowden should not have been permitted to testify about the parts he overheard?
Rule
A communication between client and lawyer is privileged under Alaska Rule of Evidence 503(b) if it was made for the purpose of facilitating legal services and was intended by the client to be confidential. Intent to keep the communication confidential is inferred from the circumstances, and reasonable precautions taken or omitted bear on both actual intent and the reasonableness of that intent. Communications intended to be confidential but intercepted despite reasonable precautions remain privileged.
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One of 10 multiple-choice questions for this case. Pick an answer to see why.
During a misdemeanor trial in Portland, Oregon, Devin Morales was in custody and remained beside a court officer during a five-minute recess. His lawyer led him to the back row of the courtroom, both turned away from the officer, and they spoke in hushed tones; the officer, standing about twenty feet away, caught only a fragment in which Devin mentioned a missing key.
If the prosecution offers the officer's testimony about the fragment he overheard, how should the court rule?
Explanation. The controlling rule is that lawyer-client communications made for legal assistance are privileged when the client intended them to be confidential and took reasonable precautions under the circumstances. The fact that an eavesdropper overheard a few words does not defeat privilege if the interception occurred despite those precautions. Here, moving away, turning their backs, and speaking quietly supports a reasonable intent to preserve confidentiality.