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Is A Defense Lawyer Breaching His Ethical Duty To A Defendant When He Discloses Evidence That Points To A Defendant’s Guilt? The Massachusetts SJC To Decide.

A defense attorney has a duty to represent their client “zealously within the bounds of the law.” An attorney also must share evidence through discovery with opposing counsel. A defendant, as per the Fifth Amendment, has the right not to incriminate themselves. This right spans from a defendant not incriminating themselves during police interrogation, all the way to the courtroom and not requiring a defendant to testify against themselves. These basic principles of criminal law work in tandem to protect the accused and make sure they are “innocent until proven guilty.” The work of these two principles is essential in protecting the rights of the accused.

In a case of first impression for the Massachusetts, Commonwealth v. Tate, the SJC is to decide whether defense counsel disclosing the location of a jacket and gun used in the commission of an alleged crime to the prosecution was a violation of the duty to the defendant.


How did the defense attorney find out about the evidence?


Tate was convicted of first-degree murder and possession of a firearm. About six months after the alleged incident, the defendant’s mother found the lockbox containing the gun in her basement. When she confronted her son, he told her there was something in the lockbox, and she understood that to mean the gun was in there.

The defendant’s mother contacted defense counsel who advised her to do nothing until he got back to her. Weeks later after conferring with other attorneys about his ethical obligations, defense counsel wrote a letter to the defendant saying that he had to inform the police of the existence of the gun and the jacket that was with it. Defense counsel advised the defendant he had “no choice” but to testify, and the defendant waived his Fifth Amendment right to remain silent.


Did the defendant give his informed consent for the attorney to disclose the location of the gun?


Massachusetts Rules of Professional Conduct state “a lawyer shall not reveal confidential information relating to the representation of a client unless the gives informed consent[.]” The defendant argues that he did not give informed consent to his defense counsel to disclose the location of the gun.

The defendant emphasizes the importance of the attorney-client relationship and the nature of the confidential relationship. If there cannot be candor between an attorney and their client, they will not be able to represent them to their fullest. The confidential information is even more protected under the law than attorney-client privilege or attorney work product.

There are a few exceptions to the rule, such as death or bodily harm being imminent, which was not present in this case. In other states, they have recognized that there is no obligation to share exculpatory evidence with the state and as long as defense counsel leaves the evidence where they find it and do not come into possession of it, they do not have to disclose it. Therefore, a defense attorney must come into actual possession before they need to turn the evidence over to the prosecution.


How did the disclosure of this evidence affect the outcome of the case?


The first thing the defendant argues as being affected is the defendant’s Fifth Amendment rights. Because of the signature by the defendant on the letter sent by the defense attorney regarding the disclosure of the evidence, counsel treated that signature as a waiver of the defendant’s rights. But counsel did not explain what the disclosure would mean for the defendant before the defendant made the decision.

The defendant is arguing that the introduction of the gun into the evidence affected the direct examination and cross-examination of the defendant, the strategy of the defense counsel, and opened the door to other evidence. An example of other evidence that was introduced was bad character evidence by the original owner of the gun because it was found the gun was stolen.


What is the defendant asking the court to do?


Tate is asking the court for a new trial. The defendant argues that the introduction of the evidence of the gun and the jacket altered nearly every aspect of the trial. The defendant is arguing that the introduction of the evidence infringed on his Fifth Amendment right to not self-incriminate.

This is an appeal from the trial of Tate; therefore, this is not a case against the defense attorney that represented him at the trial level. The defendant is just asking for a new trial without the evidence of the gun and jacket.


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