State Information
In February 2020, the National Association of Criminal Defense Lawyers asked its membership about how it communicated with clients in custody. The survey focused particularly on lawyers’ ability to communicate with their detained and incarcerated clients. At this time, no submissions have been received for District of Columbia. Want to submit a correction or additional information about facilities you visit? Tell us in this form.
District of Columbia Circuit Court of Appeals
In the D.C. Circuit, petitioners must show prejudice in order to establish a Sixth Amendment violation based on government intrusion into attorney-client communications. {1} 1 See United States v. Kelly, 790 F.2d 130, 136 (1986). Unlike some other circuits, the D.C. Circuit has not explicitly required that the government intrusion be intentional in order for the petitioner to demonstrate prejudice. Instead, the Circuit uses four factors to determine whether the intrusion amounts to prejudice, and intentionality is only one of these factors. The factors are: “(1) was evidence used at trial produced directly or indirectly by the intrusion; (2) was the intrusion by the government intentional; (3) did the prosecution receive otherwise confidential information about trial preparations or defense strategy as a result of the intrusion; and (4) were the overheard conversations and other information used in any other way to the substantial detriment of the defendant?" {2} 2 Id. at 137.
The Circuit Court has declined to weigh in on which factor is the most important, or on what combination of factors is necessary to establish a Sixth Amendment violation. {3} 3 See id. However, in United States v. Hsia, 81 F. Supp. 2d 7 (DDC 2000), the district court stated that, in its opinion, the second factor—intentionality—is the most important. {4} 4 United States v. Hsia, 81 F. Supp. 2d 7, 18 (D.D.C 2000). And in another district court decision, United States v. Neill, 952 F. Supp. 834 (1997), the court stated that the intrusion must be intentional in order for the petitioner to demonstrate prejudice. {5} 5 United States v. Neill, 952 F. Supp. 834, 840 (D.D.C. 1997) (“Under Weatherford v. Bursey, 429 U.S. 545, 554, 51 L. Ed. 2d 30, 97 S. Ct. 837 (1977), an intrusion may result in a constitutional violation if privileged information is intentionally obtained and used to the defendant's detriment at trial.”). In that case, the court found that there was “no doubt” the intrusion was intentional when federal agents reviewed documents with the defense attorney’s letterhead during a search of the defendant’s house, and a DOJ attorney later reviewed the materials. {6} 6 Id. In contrast, the court stated that an agent who came across the materials after they had been reviewed and returned by defense attorneys had only inadvertently intruded on the attorney-client privilege. {7} 7 Id. n.11.
The third factor—whether the prosecution received confidential information about trial preparations or defense strategy—may also be required in order for the petitioner to show prejudice. In Briggs v. Goodwin, 698 F.2d 486 (D.C. Cir. 1983), the Circuit Court made clear that there cannot be prejudice unless confidential attorney-client communications have actually been provided to the prosecutor. {8} 8 Briggs v. Goodwin, 698 F.2d 486, 494-495 (D.C. Cir. 1983). Although the court did not explicitly analyze the factors in Briggs, its reasoning seems like it would require petitioners to prove the third factor in every case. However, the Briggs court made clear that petitioners “need not prove that the prosecution actually used the information obtained." {9} 9 Id. They only must prove that the prosecution possessed the communications in order to establish detriment. {10} 10 Id. at 494. In justification of this rule, the court explained that requiring the petitioner to prove that the prosecution used the information “would be virtually impossible,” since it would be so difficult for a court “to sort out how any particular piece of information in the possession of the prosecution was consciously or subconsciously factored into each of those decisions." {11} 11 Id.
Finally, even if the petitioner is able to demonstrate the prejudice necessary to establish a Sixth Amendment violation, if the remedy the petitioner seeks is a new trial, the government can still defeat that motion by showing that the constitutional violation was harmless error,” by “prov[ing] beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." {12} 12 Kelly, 790 F.2d at 138 (citing Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967)).
