The Evanescent Privilege


D was convicted of armed robbery. At the sentencing hearing, he told the judge that he had not committed the armed robbery but that he had been prevented from so testifying because his court-appointed counsel, Louis Bender, had advised him that all or virtually all of his extensive prior criminal record would be introduced to impeach his credibility. Under questioning by the judge, it became apparent that Mr. Bender was not completely familiar with Rule 609. In particular, it was unclear whether Mr. Bender understood that under Rule 609 some of the defendant's prior crimes could be excluded by the judge because of their prejudicial impact. The court scheduled a hearing to consider whether D should be granted a new trial because of incompetent assistance of counsel.

At the hearing on the motion for a new trial, D represented himself with the assistance of an attorney-adviser appointed by the court. Mr. Bender, who had been subpoenaed by the prosecution, was also represented by counsel. D called himself as his first witness. Before taking the stand, he attempted to obtain from the court a ruling limiting cross-examination to Mr. Bender's advice to him concerning the admissibility of his prior criminal record at his original trial if he had taken the stand. The court refused to so limit the scope of cross-examination.

D changed his mind and decided not to testify. Instead, he called Mr. Bender. After eliciting some preliminary testimony, D asked Mr. Bender to relate the substance of conversations he had with him in D's prison cell and during trial concerning the admissibility of D's prior criminal record. Mr. Bender objected to such questions on the ground that they were covered by the attorney-client privilege and that there was no evidence that D had made a knowing and intelligent waiver of the privilege. The judge stated that he had had lengthy discussions with D and was satisfied that D was making a knowing and intelligent waiver, overruled the objection, and ordered Mr. Bender to answer. Mr. Bender then related the substance of several conversations between himself and D concerning his advice as to the admissibility of D's prior convictions at the original trial. On cross-examination, the assistant U.S. Attorney asked Mr. Bender to relate the entirety of the conversations concerning D's decision whether to take the stand. Both D and Mr. Bender objected to this line of questioning, attempting to assert the attorney-client privilege to everything except the portions of the conversations concerning the admissibility of the prior convictions.

How should the court rule?

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