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State v. Wong2/22/2002
31 N.E. 2d 479 (Ind. 2000) (criminal appeal; trial testimony); Purcell v. District Attorney for the Suffolk District, 676 N.E.2d 436 (Mass. 1997)(motion to quash subpoena to testify at trial); In re Grand Jury of Philadelphia County, 593 A.2d 402 (Pa. 1991) (appeal from orders entered in conjunction with supervision, administration, and operation of grand jury; notes seized pursuant to search warrant); Morley, v. McFarlane, 647 P.2d 1215 (Colo. 1982) (appeal from order denying injunctive relief); Henderson v. State, 962 S.W.2d 544 (Tx. Crim. App. 1998)(criminal appeal; trial testimony); People v. Paasche, 525 N.W.2d 914 (Mich. Ct. App. 1994) (criminal appeal; search warrant for attorney's files); State v. Fodor, 880 P.2d 662 (Az. Ct. App. 1994) (criminal appeal; wiretap conversation between attorney and client); Levin v. C.O.M.B. Co., 469 N.W.2d 512 (Minn. Ct. App. 1991) (civil appeal from protective order); In re Grand Jury Subpoenas Ad Testificandum Served on Louis Gonnella, Esq., 570 A.2d 53 (N.J. Super. 1989) (motion to quash grand jury subpoena); In re Grand Jury Subpoena of Lynne Stewart, 545 N.Y.S.2d 974 (N.Y. Supr. Ct. 1989) (motion to quash grand jury subpoena).
Imposition of burdens of proof or persuasion necessarily require that questions concerning attorney-client privilege must be put before and decided by a judge, whether the testimony is sought in criminal or civil proceedings, before a grand jury, in discovery, or at trial. To the extent the circuit court concluded the State should have sought judicial review before presenting Frunzi's testimony to the grand jury, the circuit court was correct as a matter of law and did not abuse its discretion.
In sum, when a prosecutor seeks arguably privileged testimony, the prosecutor must either (1) give notice to the person who might claim the privilege and the person's counsel, so that the person or the person's attorney can seek judicial review of any claim or privilege or waive the privilege, or (2) give notice to the person's counsel and, if the person's counsel does not raise the privilege and seek judicial review, the prosecutor must seek the court's ruling on the privilege issue. In the latter instance, the prosecutor should proceed with the understanding that if the person who might claim the privilege has not been given notice and an opportunity to be heard on the issue of privilege, a court's allowance of testimony may be overturned after the holder of the privilege can be heard by the court.
B. The State improperly presented and bolstered Frunzi's testimony.
The State contends the trial court erred when it found Richard Frunzi's testimony was protected by attorney-client privilege and should not have been presented to the grand jury. The State argues that Stone failed to present proof, in support of his motion to dismiss, that the communications between Stone and Frunzi were intended to be confidential and concerned legal services that Stone was seeking from Frunzi. The State opines Stone's testimony on the post-indictment motion to dismiss was nothing more than an impermissible blanket claim of privilege. The State opines the circuit court should have "insisted in being shown, line by line, if necessary exactly what statements of Frunzi's, if any, were privileged[.]" In addition, the State opines the crime-fraud exception to the attorney-client privilege applied, that the State did not improperly bolster Frunzi's testimony, and that the Wongs cannot assert Stone's attorney-client privilege to bar the State from indicting them.
In other circumstances we might engage in lengthy discussion about the client's burden to establish the attorney-client privilege as noted above. In the circumstances
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