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Criminal Practice – Constitutional – Confrontation Clause – Witness’s Attorney-Client Privilege

Criminal Practice – Constitutional – Confrontation Clause – Witness’s Attorney-Client Privilege

State v. Lowery (Lawyers Weekly No. 12-07-0223, 19 pp.) (Robert C. Hunter, J.) Appealed from Robeson County Superior Court. (Claire Hill, J.) N.C. App. Full-text opinion.

Holding: Defendant sought to cross-examine prosecution witnesses about their communications with their attorneys so defendant could prove that these witnesses knew they would not be prosecuted if they agreed to testify. However, the Confrontation Clause does not permit defendant to avoid the witnesses’ attorney-client privilege.

We find no error in defendant’s conviction of first-degree murder.

Defendant was made aware of the charge concessions and was permitted to inquire about them in order to reveal any ulterior motivation on the part of witnesses Goodson and Blackmon. However, the private communications that occurred between the two men and their attorneys regarding their respective agreements with the state were not admissible, and the attorney-client privilege was not waived when they took the stand to testify in accordance with their agreements.

Defendant has not presented any case law that would suggest that the attorney-client privilege should be nullified so that a defendant can question a witness about confidential conversations for the purpose of impeachment.

The trial court did not err in refusing to allow defendant to question the witnesses about their conversations with their attorneys during charge concession negotiations.

Defendant sought to have his psychologist testify that defendant had told the psychologist that defendant had confessed to the killing only because a police officer told him that he would receive the death penalty if he did not confess. Defendant’s motivation in seeing the psychologist was to prepare a defense; therefore, his statements to the psychologist lacked the indicia of reliability based on the self-interest inherent in obtaining appropriate medical treatment. Consequently, defendant failed to show the psychologist’s testimony was admissible under N.C. R. Evid. 803(4).

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