Maryland State Court Provides Broad Privilege Protection

November 7, 2007

Courts disagree about the implications of clients denying that they communicated with their lawyer. Because such testimony obviously does not disclose any privileged communications, one might think that the question and the answer are harmless.

However, in Forbes v. State, 931 A.2d 528 (Md. Ct. Spec. App. 2007), a convicted robber sought a new trial. He pointed to the prosecutor’s question: “‘Did you ever tell your lawyer that, Hey, listen, Sammie did it. Sammie will lie. Sammie will tell a story . . .'” — to which the criminal defendant answered, “‘No, Sir.'” Id. at 531 (citation omitted). The court held that the prosecutor should not have been able to ask the question, because (quoting an earlier decision), “‘Questions alone can impeach . . . can insinuate . . . can accuse.'” Id. at 532 (citation omitted). The court granted a new trial.

Even if questions and answers do not disclose privileged communications, they can implicate the privilege.