Thursday, May 23, 2013
James E. Moliterno (Washington and Lee University - School of Law) has posted Rectifying Wrongful Convictions: May a Lawyer Reveal Her Client’s Confidences to Rectify the Wrongful Conviction of Another? (Hastings Constitutional Law Quarterly, Vol. 38, No. 4, 2011) on SSRN. Here is the abstract:
Awareness is increasing that the U.S. criminal justice system produces convictions of the innocent. Currently, except in two states (Alaska and Massachusetts), lawyer confidentiality law prevents a lawyer from revealing client information to rectify the wrongful conviction of an innocent. An interpretation of the standard future harms exception, especially with the Restatement illustration gloss, may yield permission to reveal the client’s information and rectify the wrongful conviction. But that result is far from certain and is weighted down with significant factor-weighing to determine if the wrongly convicted is suffering “substantial bodily harm.” Despite a broader view that would dictate revelation of such information, the individual defense lawyers and prosecutors involved are likely to resist results of factor-weighing that favor revelation. The Alaska and Massachusetts approach is cleaner but still requires what may be unpalatable to some: Inflicting harm on one’s own client to aid an innocent-other. As confidence in the justice system’s ability to convict only the guilty wanes, policy-makers should consider adopting a clearer path to revelation of client information when necessary to rectify the conviction of an innocent who is currently incarcerated.