Can I Hide Evidence in my Attorney’s Office in Massachusetts?

The Massachusetts Supreme Judicial Court ruled last week that a criminal defendant cannot shield evidence from the prosecution simply by providing the evidence to his attorney.  The name of the case is Commonwealth v. Hernandez

The defendant in the case is convicted murderer and former New England Patriots tight end Aaron Hernandez, who is under indictment in Suffolk County for double murder.  The defendant allegedly shot to death two men on a Boston street in July of 2012.  His friend, Alexander Bradley, claims to have witnessed the murders.  Bradley further claims that while he was on vacation with the defendant in February of 2013, the defendant shot him in the head.  In addition to the two counts of murder, the Commonwealth indicted the defendant for witness intimidation on the theory that he was worried Bradley would provide evidence in the double murder case, and so he shot him as a form of intimidation.  During the months after Bradley was shot, he and the defendant exchanged phone calls and text messages where Bradley threatened to publicly expose the defendant’s violent conduct.  In June of 2013, the defendant gave his cellphone to his criminal defense attorneys during the process of seeking legal advice.

For more than two years, prosecutors have been attempting to seize the defendant’s cellphone from his attorneys, first through a grand jury subpoena and more recently by way of a search warrant.  A superior court judge denied the Commonwealth’s application for a search warrant and the Commonwealth appealed.  The Supreme Judicial Court reversed and ruled the defendant’s attorneys are required to produce the cellphone to the prosecutors.

The Massachusetts Legislature has enacted a law that protects lawyers (and clergymen and psychotherapists) from being subject to search warrants related to the documentary evidence in their possession that had previously been provided by their clients (or patients).  “Documentary evidence” includes all kinds of materials such as documents, tapes, recordings, photographs, or any other types of papers (and would include virtually any type of data contained on a smart phone).  However, there is an important exception to the non-production rule.  If there is probable cause to believe the materials in the possession of an attorney constitute evidence of a crime, and the evidence is in danger of being destroyed, secreted, or lost, the Commonwealth can obtain a search warrant ordering an attorney to produce a client’s material.  In this case, the Supreme Judicial Court concluded the defendant’s phone would probably contain evidence related to the witness intimidation indictment.  Further, once the phone is examined by the defendant’s attorneys, there is no need for the attorneys to continue to hold it.  In fact, by keeping the phone, the attorneys are effectively concealing or removing its contents from the observation of others (including the prosecutor), which constitutes “secreting” evidence.   The Court said the defendant’s attorneys did not act improperly or unprofessionally in any way, as it was unclear whether they were legally obligated to produce the defendant’s phone.

The Court’s opinion balances a criminal defense attorney’s right to examine relevant evidence while also recognizing that a law office cannot be used by a defendant as a safe haven to store inculpatory evidence.