Privilege Issues Arise in Bizarre Attempted Murder Case: Part II

February 16, 2005

Last week’s Privilege Point described a Maryland lawyer’s appeal of an attempted murder conviction based on what she claimed to have been the improper admission into evidence of her lawyer’s testimony about her stated intent to commit murder.

In Newman v. State, 863 A.2d 321 (Md. 2004), the Maryland Court of Appeals (that state’s highest court) ruled: (1) that the crime-fraud exception did not apply, because Newman had not sought her lawyer’s advice about the future crime, but only spoke about it in front of her lawyer; (2) that Newman’s friend’s presence during the conversation did not destroy the privilege, because the lawyer had suggested the friend’s presence, and because the friend provided psychological support to Newman; and (3) that Newman could continue to assert the privilege despite her lawyer’s admittedly justifiable disclosure to the court of her murderous intent, and the judge’s discussion of it in open court. The Court of Appeals reversed Newman’s conviction, and ordered a new trial for her.

These are not easy issues, and three out of the seven justices dissented.