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State v. Wong2/22/2002
e did not seek judicial review before it presented Frunzi's testimony to the grand jury. The State opines it was not required to seek judicial review before it presented Frunzi's testimony to the grand jury. We disagree.
Rule 104 of the Hawaii Rules of Evidence provides, with stunning clarity, that " reliminary questions concerning . . . the existence of a privilege . . . shall be determined by the court[.]" More than twenty years ago, this court set out the procedure to be followed when issues about the attorney-client privilege or exceptions to the privilege are raised. This court said the burden of establishing the privilege was upon the party asserting it and set out the manner in which privilege could be proven. The court instructed that
. . . Proper practice requires preliminary judicial inquiry into the existence and validity of the privilege and the burden of establishing the privilege rests on the claimant[,] . . . [and observed] Any other rule would "foreclose meaningful inquiry into the existence of the relationship, and any spurious claims could never be exposed." . . . . Sapp v. Wong, 62 Haw. 34, 38-39, 609 P.2d 137, 140(1980) (citations omitted; emphasis added). See also, Dicenzo v. Izawa, 68 Haw. 528, 536, 723 P.2d 171, 176 (1986) ("A proper application of the codified privilege . . . requires preliminary judicial inquiry into the existence and validity of the privilege . . . therwise, meaningful inquiry into the existence of an attorney-client relationship . . . and the character of the communication . . . would be foreclosed.") (quotation marks and citations omitted).
In addition, a host of foreign case authority states, in sum, that the attorney-client privilege belongs to the client, the burden of establishing the attorney-client privilege falls upon the client, and the burden of establishing the crime fraud exception to the attorney-client privilege falls upon the proponent of the exception. See e.g. Swidler and Berlin v. United States, 524 U.S. 399, 118 S.C. 2081 (1998) (grand jury subpoena; scope of privilege); In re Sealed Case, 223 F.3d 775 (D.C. Cir. 2000) (grand jury subpoena); In re Grand Jury Subpoena, 187 F.3d 996 (8th Cir. 1999)(grand jury subpoena; motion to compel); Chaudhry v. Gallerizzo, 174 F.3d 394 (4th Cir. 1998) (pretrial motion to compel); In re Richard Roe, Inc., 168 F.3d 69 (2d Cir. 1999) (appeal from civil contempt order for defiance of order requiring testimony and disclosure of documents to grand jury); In re Sealed Case, 162 F.3d 670 (D.C. Cir. 1998) (motion to quash grand jury subpoena); In re Grand Jury Proceedings Grand Jury No. 97-11-8, 162 F.3d 554 (9th Cir. 1998) (appeal from order requiring former attorney to testify before grand jury); In re Bruce R. Lindsey, 158 F.3d 1263 (D.C. Cir. 1998) (motion to compel grand jury testimony); In re Grand Jury Subpoenas, 144 F.3d 653 (10th Cir. 1998) (motion to compel grand jury testimony); United States v. Rakes, 136 F.3d 1 (1st Cir. 1998) (pre-trial motion to suppress); United States v. Bauer, 132 F.3d 504 (9th Cir. 1997) (trial testimony); In re Sealed Case, 107 F.3d 46 (D.C. Cir. 1997) (appeal from contempt citation for failure to testify and produce documents); In re Grand Jury Proceedings, 102 F.3d 748 (4th Cir. 1996) (action to quash grand jury subpoenas); United States v. Chen, 99 F.3d 1495 (9th Cir. 1996) (appeal challenging order denying motions to quash grand jury subpoena); In re Grand Jury Proceedings, 87 F.3d 377 (9th Cir. 1996) (appeal from district court order requiring former corporate counsel to testify before grand jury); Olson v. Accessory Controls and Equipment Corp., 757 A.2d 14(Conn. 2000)(review of protective order in wrongful termination action);Lahr v. State of Indiana, 7
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