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United States: Maryland High Court Rules Permitting Prosecution to Question Attorney-Client Communications Is Reversible Error

(Dec. 15, 2008) On November 12, 2008, the Maryland Court of Appeals held that a prosecutor's questioning a criminal defendant at trial regarding his communications with defense counsel is a reversible error.

During the murder trial of Richard L. Blanks, in order to explain fingerprint and DNA evidence at the crime scene, Blanks claimed at trial for the first time that he was having an affair with the victim. The prosecutor, seeking to show that Blanks's testimony was questionable because he had not previously disclosed it to counsel, challenged Blanks's revelation by asking when he discussed his testimony with his attorney. Blanks's counsel vigorously objected, claiming an invasion of the attorney-client privilege, but was overruled by the trial court. Blanks was convicted of first-degree murder and first-degree assault and sentenced to life imprisonment.

In Blanks's appeal, Maryland's intermediate appellate court held that any error that might have occurred by the prosecution's line of questioning was harmless because the issue of credibility was not central to the case. Maryland's highest court, the Court of Appeals, disagreed and reversed the lower court's decision. It noted that the attorney-client privilege is a fundamental legal precept sanctified by common and Maryland law. The Court of Appeals stated that it was incumbent on the prosecution to prove that there was “no reasonable doubt” that the violation did not disturb the jury's verdict. The court found that the violation of the attorney-client privilege in this case could not be considered harmless because it undermined the accused's credibility. The court ordered a new trial. (Blanks v. Maryland, No. 08-30 (Md. Nov. 12, 2008), available at http://mdcourts.gov/opinions/coa/2008/13a08.pdf.)