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State v. Wong2/22/2002
8-9(1997) (footnote omitted). Most of the issues posed by the State concern application of the attorney-client privilege and application of the "crime-fraud" exception that allows otherwise privileged testimony to be presented. The United States Supreme Court has described the common law attorney-client privilege and the crime fraud exception as follows:
We have recognized the attorney-client privilege under federal law, as the oldest of the privileges for confidential communications known to the common law. . . . Although the underlying rationale for the privilege has changed over time, . . .courts long have viewed its central concern as one to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. . . . That purpose, of course, requires that clients be free to make full disclosure to their attorneys of past wrongdoings, . . . in order that the client may obtain the aid of persons having knowledge of the law and skilled in its practice[.] The attorney-client privilege is not without its costs. . . . ince the privilege has the effect of withholding relevant information from the factfinder, it applies only where necessary to achieve its purpose. . . . The attorney-client privilege must necessarily protect the confidences of wrongdoers, but the reason for that protection--the centrality of open client and attorney communication to the proper functioning of our adversary system of justice--ceas to operate at a certain point, namely, where the desired advice refers not to prior wrongdoing, but to future wrongdoing. . . . It is the purpose of the crime-fraud exception to the attorney-client privilege to assure that the seal of secrecy, . . . between lawyer and client does not extend to communications made for the purpose of getting advice for the commission of a fraud or crime. . . . United States v. Zolin, 491 U.S. 554, 562, 109 S.Ct. 2619, 2625-6 (1989) (quotation marks and citations omitted). The United States Court of Appeals for the Ninth Circuit explained:
The attorney-client privilege is essential to preservation of liberty against a powerful government. People need lawyers to guide them through thickets of complex government requirements, and, to get useful advice, they have to be able to talk to their lawyers candidly without fear that what they say to their own lawyers will be transmitted to the government. United States v. Chen, 99 F.3d 1495, 1499 (9th Cir. 1996) (citation omitted).
In Hawaii the common law attorney-client privilege and the exceptions to it are codified as Rule 503 of the Hawaii Rules of Evidence (HRE). See HRS ยงรก626-1, Rule 503 (1993);Dicenzo v. Izawa, 68 Haw. 528, 535, 723 P.2d 171, 175 (1986) ("HRE 503 . . . codified the common-law attorney-client privilege long recognized by the courts of Hawaii"). The attorney-client privilege rule "applies at all stages of all actions, cases, and proceedings[,]" HRE Rule 1101(c), including grand jury proceedings. See HRE Rule 1101(d) ("The [Hawaii] rules [of evidence](other than with respect to privileges) do not apply . . . . . . proceedings before grand juries."). (Emphasis added.) The attorney-client privilege applies in both civil and criminal cases. HRE 503; Swidler and Berlin v. United States, 524 U.S. 399, 408-9, 118 S.Ct. 2081, 2087 (1998). The attorney-client privilege serves broader purposes than the constitutional privilege against self-incrimination. Id. at 407-408, 118 S.Ct. at 2086.
A. Judicial determination of attorney-client privilege
The State first argues the circuit court erred when it dismissed the indictment against Stone and the Wongs because the Stat
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