Palmer v. Hoffman
318 U.S. 109 (1943)

Mr. Justice DOUGLAS delivered the opinion of the Court.

This case arose out of a grade hat the evidence must be turned over to the prosecution, we must determine how this can best be done without further prejudice to the defendant. The Ethics Committee's proposed standards provide that when this is done "the lawyer shall do so in [a] way best designed to protect the client's interest." Standards, supra.

Amicus National Legal Aid and Defender Association suggests that if the lawyer decides to disclose the item he should do so by delivering the evidence to an agent who would then deliver it to the police without disclosing the source of the item or the case involved. Defendant, however, suggests that the procedure followed in the District of Columbia be considered. According to defendant, inculpatory evidence is delivered to the District of Columbia's bar counsel for subsequent delivery to law enforcement officials. Defendant urges that this Court adopt a system whereby an attorney could anonymously deliver evidence to State Bar counsel, or presidents of local county bar associations, in a sealed package which indicates that it is being delivered due to the affirmative disclosure requirement.

We disagree with both suggestions. Not all items have evidentiary significance in and of themselves. In this case, for instance, the watch is not inculpatory per se; rather, it is the fact that the watch was found in defendant's jacket that makes the watch material evidence. By returning the watch anonymously to the police, this significance is lost. Assuming investigating officials are even able to determine to what case the evidence belongs, they may never be able to reconstruct where it was originally discovered or under what circumstances. Cf. People v. Meredith, 29 Cal. 3d 682, 175 Cal. Rptr. 612, 631 P.2d 46 (1981) ("to bar admission of testimony concerning the original condition and location of the evidence ... permits the defense to 'destroy' critical information; it is as if ... the wallet in this case bore a tag bearing the words 'located in the trash can by Scott's residence,' and the defense, by taking the wallet, destroyed this tag." Id. at 691, 175 Cal. Rptr. at 617, 631 P.2d at 53.

We believe it is simpler and more direct for defendant's attorney to turn the matter over to the state as long as it is understood that the prosecutor may not mention in front of the jury the fact that the evidence came from the defendant or his attorney. As the Michigan Court of Appeals explained:

[P]ermitting the prosecutor to show that defendant's attorney had such evidence in his possession invites the jury to infer that defendant gave the evidence to her attorney. The prosecution should not be allowed to accomplish by inference what he is clearly prohibited from doing by direct proof.

People v. Nash, 110 Mich. App. 428, 447, 313 N.W.2d 307, 314 (1981).

If a defendant is willing to enter a stipulation concerning the chain of possession, location or condition of the evidence, then the evidence may be admitted without the jury becoming aware of the source of the evidence. Cf. People v. Meredith, supra, at 695 n.8, 175 Cal. Rptr. at 620 n.8, 631 P.2d at 54 n.8. Under these circumstances, the attorney need not be called as a witness.


Under these procedures, the attorney need not withdraw as counsel. If the attorneys can stipulate as to the chain of possession and no reference is made to the fact that the defendant's attorney turned the matter over to the prosecution, then there is no need for the attorney to withdraw as counsel for the defendant. There may be some cases where the client will believe that his attorney no longer has his best interest in mind. In such a case, it may be wise for the attorney to ask to withdraw. Such requests should be liberally granted by the court. Where, however, the client does not object, there is no need for the attorney to withdraw from the case.


As to the instant case, we find that defense counsel was forced to take possession of the evidence because of a reasonable fear that to do otherwise would result in its destruction. Because the source was a nonclient, and because he had reason to believe that the witness (source) would conceal or destroy the evidence, the attorney had an obligation to disclose the item and its source to the prosecution....

FELDMAN, J., dissenting.

I dissent both because I disagree with some of the majority's conclusions and because I fear that the court's opinion leaves many unanswered questions. Ordinarily, judicial discretion requires that we avoid questions not directly raised by the case before us. However, the opinion of the court affects vital areas of practice with which prosecutors and defense counsel must deal on a day-to-day basis. Under these circumstances I think it is important to emphasize some points only touched upon in the court's opinion and address some the court did not reach at all.

The court fails to consider the full scope of the role of defense counsel. The opinion indicates that defense counsel acts both as an advocate for the defendant and an officer of the court. I believe that the role of defense counsel has an even more profound dimension. The adversary feature of the criminal justice system evolved as a control on governmental absolutism and is, therefore, a fundamental component of political liberty. Hazard, Ethics in the Practice of Law, 120-122 (1978). Viewed in this framework, the role of defense counsel goes beyond assisting in the search for truth or helping to convict the guilty and acquit the innocent. Beside these two functions, defense counsel also must maintain the integrity of our personal rights by assuring that the government meet the constitutional requirements that it both prove its case and give the defendant due process of law. These are rights which may be invoked by all defendants, not just the innocent. The constitutional guarantee of due process of law extends to all, even those whose innocence is subject to doubt and those whose guilt is certain. The system was designed to restrain governmental power and protect all citizens from tyranny. See generally Hamilton, Madison and Jay, The Federalist (Scott ed. 1894) Nos. 8, 41-45, 70-78; Dworkin, Taking Rights Seriously.

In my view, therefore, defense counsel should never be put in the position of helping the government prove its case. Of course, counsel may not mislead, tamper with evidence, lie or promote such acts. To do so would violate his duty as an officer of a court which seeks to ascertain the truth. On the other hand, because defense counsel is neither an assistant to nor an investigator for the prosecutor, his function is neither to gather nor preserve inculpatory evidence for the prosecution. If he engages in such conduct, how can he then put the government to its proof? How can he be a zealous advocate for the defendant when at the same time he is likely to make himself a star witness for the prosecution?

I am led to the inevitable conclusion that defense counsel has no obligation to take possession of inculpatory evidence from third parties. Further, caution and common sense dictate that as a general rule he should never actively seek to obtain such evidence and should refuse possession even if it is offered to him. His guiding principle should be to leave things as they are found. If counsel has reasonable grounds to believe that evidence is in danger of being tampered with or destroyed by a third party, his obligations are satisfied by cautioning that person against such conduct. The majority opinion is ambiguous on this issue, but I believe that we should make it clear to the defense bar that the general rule to


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