NCJ Number
46982
Date Published
1976
Length
10 pages
Annotation
CASELAW INITIATING SIGNIFICANT CHANGES IN TWO AREAS OF THE LAW OF CONFIDENTIALITY IS REVIEWED: DECISIONS LIMITING CONFIDENTIALITY OF THE CLIENT/ATTORNEY RELATIONSHIP, INCREASING THAT OF CONSENSUAL SEXUAL ACTS.
Abstract
IN BOYD VERSUS UNITED STATES (1886) THE SUPREME COURT INTRODUCED WHAT BECAME KNOWN AS THE PRIVATE PAPERS DOCTRINE OF CONFIDENTIALITY WHICH PROHIBITED GOVERNMENT ACTION COMPELLING SELF-INCRIMINATION THROUGH THE DEFENDANT'S OWN PRIVATE PAPERS IF SUCH PAPERS WERE ONLY OF EVIDENTIARY VALUE. IN COUCH VERSUS UNITED STATES IT WAS RULED THAT FREELY WRITTEN INCRIMINATING PAPERS COULD BE PRODUCED, UNDER LEGAL PROCESS, IN EVIDENCE. IN FISHER VERSUS THE U.S., THE COMPELLED PREDUCTION OF PREEXISTING DOCUMENTS IN EVIDENCE WAS FURTHER EXTENDED TO LIMIT CLIENT/ATTORNEY CONFIDENTIALITY RIGHTS TO ONLY THOSE DOCUMENTS IN WHICH THE CLIENT WOULD HIMSELF BE PRIVILEGED. UNDER THE ANDERSEN VERSUS MARYLAND DECISION, FREELY PREPARED PRIVATE PAPERS WERE DEEMED SUBJECT TO SEIZURE IN THE COURSE OF LAWFUL SEARCH. THE SUM EFFECT OF THESE DECISIONS HAS BEEN AN END TO THE PRIVATE PAPERS DOCTRINE. ORAL ATTORNEY/CLIENT COMMUNICATIONS AND DOCUMENTS WRITTEN UNDER PHYSICAL OR MORAL COMPULSION HAVE, HOWEVER, REMAINED BEYOND THE COMPULSORY REACH OF THE GOVERNMENT. A NUMBER OF JUDICIAL DECISIONS IN THE AREA OF ADULT CONSENSUAL SEXUAL BEHAVIORS HAVE RECOGNIZED AND EXTENDED CONFIDENTIALITY RIGHTS. IN GRISWOLD VERSUS CONNECTICUT, THE SUPREME COURT DECIDED THAT THE STATE HAD NO INTEREST IN THE DECISION TO PROCREATE/NOT PROCREATE; AND IN ROE VERSUS WADE THE SUPREME COURT FOUND THAT THE RIGHT OF PRIVACY ENCOMPASSED A WOMAN'S DECISION WHETHER OR NOT TO TERMINATE A PREGNANCY. DRAWING ON THESE PREVIOUS DECISIONS, THE COURT IN STATE (OF NEW JERSEY) VERSUS SAUNDERS HELD THAT WHETHER AN ADULT MAN AND UNWED ADULT WOMAN ARE TO ENGAGE IN SEXUAL ACTIVITIES IS BEYOND THE PALE OF STATE CONCERN AND IS PROTECTED BY THE CONSTITUTIONAL RIGHT TO PRIVACY. THE COURT INSISTED THAT THE ISSUE OF FORNICATION WAS PRIVATE MATTER AND STATES THAT 'PRIVATE PERSONAL ACTS BETWEEN TWO CONSENTING ADULTS ARE NOT TO BE LIGHTLY MEDDLED WITH BY THE STATE.' IT IS NOTED THAT THE SUPREME COURT HAS UPHELD A STATE SODOMY STATUTE APPLIED TO PRIVATE SEXUAL CONDUCT BETWEEN CONSENTING MALE ADULTS. FOOTNOTES ARE PROVIDED. (JAB)