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Yes, I read the document. I'm not a lawyer, but the reasoning is problematic to me because it draws equivalence between discovery via the attorney after receip
by caconym_ 6y ago
Yes, I read the document.
I'm not a lawyer, but the reasoning is problematic to me because it draws equivalence between discovery via the attorney after receipt of the documents and interception of the documents before they reach the attorney, arguing that since the former is standard procedure and the latter is equivalent then the latter is acceptable. However, we may reasonably anticipate that sealed messages and packages sent from clients to their attorneys will often contain legitimate privileged communications, so what we have here is basically the government saying don't worry, we're going to read any and all privileged communications you do send, but trust us—we'll forget all of it.
The court's reasoning seems to handwave this concern with allusions to "filter teams". Given that they're essentially acting on behalf of the prosecution, I don't find that particularly satisfying, especially since the use of "parallel construction" by local and federal law enforcement, often acting together, is not unheard-of.
I'm sure there's precedent for all of it. Often when we're talking about relatively unaccountable federal agencies, this kind of precedent seems to arise from the government asking for forgiveness rather than permission, so to speak—so this is not an argument that what is isn't what is, but rather that, given the spirit of attorney-client privilege doctrine, I find this reasoning deeply unsatisfying.
I agree that relying on defendants and their attorneys to be truthful in discovery is, perhaps, equally problematic from a law enforcement perspective. That's where we should start throwing other things onto the balance, like concern for erosion of civil liberties.
If they X-rayed the package and saw it was just a knife or gun or whatever in there, I could see an argument for seizing it as evidence. But if it's just information storage devices—say, a printed document, impossible to distinguish as privileged or not without reading it, is the government justified in seizing it and deciding for themselves? Why then does the government not enjoy the right to read every single communication between client and attorney, and to bug the rooms where they meet, given that the government must be allowed to efficiently slurp up all non-privileged information that passes between them and can be trusted to ignore what is privileged?
- mlyle 6y agoIf they overshoot, there's always motion to suppress evidence and associated consequences (fruit of poisonous tree, grounds for appeal, etc). I agree it risks being problematic, but allowing a blanket unsearched conduit for physical evidential items from defendants is problematic, too.
- caconym_ 6y agoSounds like we largely agree, then. :) I'm not ready to say I think this should or shouldn't be allowed and under what circumstances, because I'm not a lawyer or legal scholar. It just bugs me when people post these reductive black-and-white takes without even seeming to consider how complicated these issues really are. If it was so simple, that document would be a lot shorter, I think.
- DarkWiiPlayer 6y agoI'd argue there should be a line somewhere. There's cases where the authorities may have reason to believe that something is not protected attourney-client communication and intercept it, but at the same time they should not be allowed to just intercept anything because it could be evidence disguised as communication.
- caconym_ 6y agoYeah. I'd compare this to the fifth amendment issues around providing a password to a computer, safe, etc., where (IIRC) compelling a defendant to provide the password is contingent on having strong arguments to the effect that they own the device in question, that they have the password, and most importantly that the contents of the device are essentially a foregone conclusion. That same "foregone conclusion" doctrine should apply here too. IMO (but IANAL) the court's argument here could be easily applied to interception/seizure of any communications between client and attorney, which is absurd. edit: I guess by "the court's argument" I mean the mostly-implicit notion that "filter teams" are a sufficient mechanism to obviate any concerns over the government intercepting privileged communications. Most of what I read seemed to be an implicitly (again with the implicitude!) ex post facto justification of seizing the package based on the fact that it did contain non-privileged materials, and said materials would have been subject to discovery anyway.