Understanding FRE 501 Privileges in Federal Counterfeiting Cases

Understanding FRE 501 Privileges in Federal Counterfeiting Cases

Counterfeiting cases involve the production of fake currency, coins, stamps, trademarks, or other official documents. When these cases reach the federal level, issues of privilege often come up under the Federal Rules of Evidence (FRE) 501. This article will explain what privileges apply and how they work in federal counterfeiting prosecutions.

Attorney-Client Privilege

The attorney-client privilege allows confidential communications between an attorney and their client to remain private. This promotes open and honest discussion so the attorney can provide fully informed legal advice. The privilege covers both individual and corporate clients. It applies in counterfeiting cases like any criminal prosecution.

However, the crime-fraud exception removes the privilege if the communications further an intended crime or fraud. Discussing future counterfeiting plans with an attorney wouldn’t be privileged. But seeking advice after the fact about potential defenses likely remains protected.

Marital Privileges

Spouses also have privileges allowing them to keep their private communications confidential. Either spouse can assert these privileges to avoid testifying against the other in a federal counterfeiting trial.

The marital communications privilege covers private discussions between spouses during the marriage. The spousal testimonial privilege allows one spouse to refuse to testify against the other at all. However, it doesn’t prevent the spouse from voluntarily testifying if they choose to.

Clergy-Penitent Privilege

The clergy-penitent privilege protects confidential communications with a religious advisor, like a priest or pastor. A counterfeiting defendant could use this to keep secret a confession made to their clergy member. However, it would only apply to spiritual counseling, not business or other non-religious discussions.

Doctor-Patient Privilege

Many states recognize a doctor-patient privilege, but there is no federal privilege. So communications with physicians are not protected in federal counterfeiting trials. Defendants should know that medical records and doctor testimony may be used as evidence against them.

Fifth Amendment Privilege

Every person has the Fifth Amendment right not to incriminate themselves. Asserting this privilege allows counterfeiting defendants to refuse to testify or provide information to investigators. Juries cannot make negative inferences from a defendant’s silence. However, it does not prevent prosecuting using independent evidence.

Journalist’s Privilege

A journalist’s privilege allows reporters to keep sources confidential. But federal precedent doesn’t recognize a reporter’s privilege when the identity of a source is essential to a criminal case. So courts may compel journalists to reveal sources during counterfeiting trials.

Accountant-Client Privilege

The accountant-client privilege allows confidential communication with CPAs much like the attorney-client privilege. But the accounting privilege has been inconsistently recognized in federal law. So whether it applies in a counterfeiting case will depend on the specific court and jurisdiction.

Executive Privilege

Executive privilege protects sensitive communications within the executive branch. The president can assert executive privilege to avoid disclosing discussions with close advisors. However, this privilege rarely applies in federal criminal prosecutions like counterfeiting cases.

Waiver of Privileges

Privileges can be waived if protected information is voluntarily disclosed. For example, forwarding attorney-client emails to a third party or discussing spousal communications in public. Privileges are also waived if the holder relies on privileged communications to make their case. Like a defendant claiming they confessed to their spouse.

Asserting Privileges

Parties do not need to specially assert privileges in advance. But if privileged information is requested or subpoenaed, the privilege holder should promptly object and explain the specific privilege claimed. Privileges should be asserted narrowly to protect only confidential information that is legitimately privileged.

Resolving Privilege Disputes

If there is a dispute over whether information is privileged, the court will hold a hearing. The party claiming privilege bears the burden of proving: (1) the communications were confidential, (2) made to a protected advisor, and (3) for the purpose of obtaining advice. Records may need to be reviewed by the court privately to resolve close calls.

Takeaways

Here are some key takeaways about privileges in federal counterfeiting cases:

• Attorney-client privilege remains strong but has limits around crime/fraud
• Spousal privileges allow refusing to testify against a spouse
• Only clergy get a federal testimonial privilege, not doctors
• Journalist’s privilege weak in criminal cases
• Executive privilege rarely applies
• Don’t count on accountant privilege
• Privileges must be asserted properly or they may be waived

Understanding the nuances around privileges can be critical in defending federal counterfeiting charges. Carefully asserting valid privileges may protect sensitive communications from exposure at trial. But overbroad claims of privilege may be denied. Experienced defense counsel is essential to navigate this complex area effectively.

References

Criminal Resource Manual Title 9 Chapter 734, DOJ

Federal Rule of Evidence 501, LII

U.S. v. Evans, 113 F.3d 1457 (7th Cir. 1997)