Tuesday, May 13, 2014
Gregory C. Sisk (University of St. Thomas School of Law (Minnesota)) has posted The Legal Ethics of Real Evidence: Of Child Porn on the Choirmaster's Computer and Bloody Knives Under the Stairs (Washington Law Review, 2014, Forthcoming) on SSRN. Here is the abstract:
With little guidance from the Model Rules of Professional Conduct and continuing confusion on professional obligations, questions about engagement with real evidence continue to bedevil criminal defense lawyers, incite prosecutors, generate disputes, and attract judicial attention.
Where should we draw that line between what is demanded by the professional duties of zealous advocacy and client confidentiality and what constitutes obstruction of justice? When may a document or object that could conceivably be relevant in some future investigation or proceeding be destroyed, altered, or removed? May a criminal defense lawyer take possession of evidence of a crime for purposes of analysis, even if forensic characteristics are altered?
This Article critically examines the law of real evidence under the search light of professional responsibility, attorney-client confidentiality, and the constitutional rights of criminal defendants.