LEO: Attorney Suppressing Evidence  LE Op. 1049

Attorney Suppressing Evidence.

March 2, 1988

You advise that you represent an individual who has been charged with

sexually abusing and raping his 20-year-old stepdaughter. The stepdaughter

alleges that this abuse has been ongoing for seven to eight years. After

the stepdaughter made her allegations, she moved out of the home which she

was sharing with your client. When she moved out, the alleged victim left

various letters, papers, books and pictures in the home. You directed your

client to bring those letters, papers, books and pictures to your office

so that you could review them to see if there was anything that would be

helpful to your client's defense. You did not direct him to bring any

specific items, just what was left in the home by his stepdaughter. You

were interested in any letters or diaries which might conflict with what

the victim had told investigators. At the preliminary hearing, the alleged

victim testified that during one particular month, she had sex with her

stepfather on six occasions. She further stated that she had marked each

occasion by writing a number on a "Garfield the Cat" calendar. The search

was conducted to search your client's home for the calendar. The search

was conducted and no calendar was found. After the preliminary hearing,

you looked through the box of items that your client had brought and found

a calendar which meets the description of the one about which the alleged

victim testified. The calendar had the numbers 1, 2, 3, 4, 5 and 6 written

in the blocks corresponding to various dates. The numbers are written

approximately four to six days apart. The alleged victim did not testify

about which particular date she had sex with her stepfather, only that it

had been six times in that month.

You wish to know whether or not you have an obligation to turn over the

calendar to the prosecutor. You state that the calendar is not the

instrument or fruit of the crime, nor is it contraband. You further state,

however, that you feel that this calendar is particularly crucial in this

case since there is no physical evidence or witnesses, except the alleged

victim, against your client.

Disciplinary Rule 7-102(A)(3) states that in his representation of a

client, a lawyer shall not conceal or knowingly fail to disclose that

which he is required by law to reveal. Disciplinary Rule 7-108(A) states

that a lawyer shall not suppress any evidence that he or his client has a

legal obligation to reveal or produce. Disciplinary Rule 7-102(A)(7)

provides that a lawyer shall not assist his client in conduct that the

lawyer knows to be illegal.

If there is a legal duty for you to produce the calendar, then the

Committee opines that it would be a violation of DR:7-102(A)(3) and DR:

7-108(A) to fail to produce it. If the effects are sought by the daughter,

a violation of DR:7-102(A)(7) could exist if you fail to return it to

her. Whether or not you have a legal duty to produce the calendar is

beyond the Committee's province.

The Committee is not advised that the Virginia Code of Professional

Responsibility is applicable in a military tribunal, or in a foreign

venue.

Committee Opinion March 2, 1988