People v. Cassas, 84 N.Y.2d 718 (1995)

An attorney’s out-of-court statement incriminating a client is inadmissible against the client in a criminal trial unless there is evidence the client authorized the statement as a waiver of the attorney-client privilege.

Summary

The New York Court of Appeals held that an attorney’s statement to police, made in the presence of his client, that the client shot his wife was inadmissible as evidence against the client because there was no showing the client authorized the statement as a waiver of attorney-client privilege. The Court reasoned that admitting the statement without such authorization would violate the privilege and undermine the client’s fundamental right to make key decisions about their defense. The Court also held that the trial court erred by refusing to instruct the jury that no adverse inference could be drawn from the defendant’s silence when his attorney made the statement.

Facts

Defendant was charged with murdering his wife. On the morning of the murder, the defendant and his attorney, Samuel Hirsch, went to a police precinct. Hirsch told the desk sergeant that there was a problem at defendant’s home and a prompt police response was needed. At the defendant’s home, police found the defendant’s wife dead. Back at the precinct, Hirsch allegedly stated, with the defendant present, “I brought my client in to surrender. I believe he shot his wife. You’ll find the gun in the room. It will have my client’s prints on it.” The police arrested the defendant and recovered a gun from the scene.

Procedural History

The trial court denied the defendant’s motion to suppress the attorney’s statement, reasoning that Hirsch was the defendant’s agent and authorized to speak on his behalf. The Appellate Division affirmed the trial court’s decision, concluding that the statement was direct evidence of guilt from the defendant’s agent. The New York Court of Appeals then reversed the Appellate Division’s order.

Issue(s)

1. Whether an attorney’s out-of-court statement incriminating his client is admissible against the client as direct evidence of guilt in a criminal trial when there is no evidence the client authorized the statement as a waiver of the attorney-client privilege.

2. Whether the trial court erred by refusing to instruct the jury that no adverse inference could be drawn from the defendant’s silence at the time of the attorney’s statement.

Holding

1. Yes, because absent a showing that the client authorized the attorney’s statement as a waiver of the attorney-client privilege, the statement is inadmissible as it violates the privilege and undermines the client’s fundamental right to make key decisions about their defense.

2. Yes, because the jury could have inferred that the defendant’s silence was an adoption or corroboration of his attorney’s assertions; therefore, the trial court was required to guard against the adverse inference.

Court’s Reasoning

The Court reasoned that while statements made by an attorney within the scope of employment can be admissible against the client, there was no evidence that the defendant authorized his attorney’s statement as a waiver of the attorney-client privilege. The Court emphasized that in criminal cases, the defendant retains the authority to make fundamental decisions regarding the case. It distinguished the case from People v. Rivera, where the attorney’s statement was a written affidavit used for impeachment after the defendant testified inconsistently. Here, the attorney’s statement was oral, made out of court, and used as direct evidence of guilt in the prosecution’s case-in-chief.

The Court also cited United States v. Valencia, cautioning against setting a precedent for admitting all informal, out-of-court statements by attorneys against their clients, as it would violate the attorney-client privilege. The court quoted Matter of Priest v. Hennessy, stating that the attorney-client privilege “exists to ensure that one seeking legal advice will be able to confide fully and freely in his [or her] attorney, secure in the knowledge that his [or her] confidences will not later be exposed to public view to his [or her] embarrassment or legal detriment.”

Regarding the jury instruction, the Court found that despite the defendant’s right to remain silent, the trial court should have instructed the jury that no adverse inference could be drawn from the defendant’s silence because the jury could have inferred the silence as an adoption of the attorney’s statement.