Lesson Learned from the Casey Anthony Murder Trial: Be Careful What You Say – It May End Up in Court

When I meet clients for the first time in a one on one setting I assure them that what they say to me is privileged and protected, and encourage them to be open and honest. This is because the attorney-client privilege is considered sacrosanct, see Upjohn Co. v U.S., 449 U.S. 383, 389 (1981), and is as close to an “absolute” privilege as is recognized under the law. Other relationships, such as doctor-patient, priest-penitent, and husband and wife, also protect certain communications, the latter being better known under the concept of "spousal privilege", which holds that most inter-spousal communications in the course of an intact marriage are also protected. See Hawkins v. U.S., 358 U.S. 74 (1958). Collateral to this is the right of one spouse to choose not to testify against the other if subpoenaed to court, regardless of whether or not immunity is offered. This right is often universally termed the "spousal election" or "spousal immunity". Id. Regardless of labels, these rights all stand for the concept that parties to certain kinds of established relationships may not be compelled to testify about what was said by one party to the other, when those things are said, or shared, within the context of certain protected relationships. However, the further removed we get from attorney-client communications and the more attenuated the relationship in question becomes, the less privileged what was said becomes - and this is something I caution my clients about frequently. Simply put, there is no brother-sister privilege. There is no mother-daughter/father-son privilege. There is no girlfriend/boyfriend privilege. There is no grandfather/grandchild privilege, regarding things said between the parties. And there are no related immunities, either. (I.e., a mother can be forced to testify against her daughter.) In other words, it’s open-season when dealing with these types of communications, which may, in the end, prove to be Casey Anthony’s downfall. As if the defense in State of Florida v. Casey Marie Anthony, (No. 48-2008-CF-0015606-O) didn’t already have enough of a problem with defense counsel claiming the defendant’s two year old daughter drowned accidentally while the defendant, herself claimed in a taped confession that her daughter was kidnapped, they also have to deal with the defendant’s out of court statements to her own family members and loved ones. While I have no doubt that her skilled and experienced lawyers will try, and may even succeed, in turning the discrepancy between what they claim to be the cause of death and what she told police happened to her daughter to her advantage, it seems likely that her inter-family statements will prove to be her ultimate downfall. In short, her communications to her brother that, "she hadn’t seen her daughter in 31 days and that the babysitter had kidnapped her", and the numerous inconsistent statements to her mother about her daughter’s various whereabouts and reasons she could not be seen prior to disclosing the alleged kidnapping plot (which includes many inconsistent statements, several of which have already been discredited in the course of the investigation) and her reported statement to a former boyfriend that, "Maybe I’m the worst f—ing person in the world.", were not privileged or protected, and it makes no difference whether or not she thought they might be. The fact is they aren’t, and weren’t, and while her lawyers may well effectively challenge, if not rebut, the bulk of the State’s evidence, including anything the police claim she told them, the reality is when it’s one’s own flesh and blood, or someone one was once close to, attributing damning and incriminating statements to the accused, the defense is in real trouble. So, word to the wise… When under suspicion for a crime, you have no "friends" and have no "family". If you want to talk, talk to your lawyer.

If you have been accused of a crime and you need a lawyer to represent you please contact Brad Bailey at 781-589-2828