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Blackmon v. State

Citation. Blackmon v. United States, 559 U.S. 1115, 130 S. Ct. 2417, 176 L. Ed. 2d 940, 78 U.S.L.W. 3643 (U.S. May 3, 2010)
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Brief Fact Summary.

Thomas W. Blackmon (Appellant) was convicted, after a trial, of criminal mischief in the third degree. During Appellant’s trial, the court allowed into evidence some statements made by Appellant to his lawyer that were overheard by a judicial services officer and Alaska State Trooper. Appellant appeals his conviction, claiming that the admission of the portions of the conversation that were overheard was error.

Synopsis of Rule of Law.

Communications that fall under the attorney-client privilege and that are intended to be private but that are nonetheless overheard or intercepted despite reasonable precautions, remain privileged and are inadmissible at trial.


At Appellant’s trial and during a recess, an Alaska State Trooper and judicial services officer overheard “about eight or nine words” that were spoken by Appellant to his counsel. The words were incriminating to Appellant.
Over Appellant’s objection, the trial judge allowed the State Trooper to testify as to what he heard, ruling that the conversation was not privileged, that the probative value of the evidence outweighed its prejudicial effect, and that the testimony of the State Trooper was relevant.
The judge ruled that the testimony was admissible despite the State Trooper’s admission that the, “conversation between [Appellant and his attorney] had the appearance of being private.”


Did the lower court error in allowing the testimony of the Alaska State Trooper, concerning what he had overheard between Appellant and Appellant’s attorney, to be introduced into evidence?


Yes; the conversation was a confidential one to which the attorney-client privilege applies, as the conversation was meant to be secret and because reasonable precautions were taken to ensure that the conversation was not overheard; therefore, the admission of the Alaska State Trooper’s testimony regarding what he had overheard was error.


The court reasoned that:
The essence of the lawyer-client privilege is thus that the client reasonably intend his communication with counsel to be confidential. The extent of precautions taken will normally be a useful indicator not only of actual intent to maintain confidentiality but also of the reasonableness of such an intent. Once a communication is determined to be confidential, the lawyer-client privilege may be asserted to prevent any person from testifying as to its substance.
Therefore, the court concluded, since, “[t]he facts in the present case plainly show that [Appellant] intended to have a secret conversation with [his attorney] . . . and [r]easonable precautions were, moreover, taken by [Appellant] not to have the conversation overheard,” that the attorney-client privilege applied and the admission of the Alaska State Trooper’s testimony was reversible error.

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