One question that has lingered since Kastigar is whether there might be other areas, particularly in the context of privileged communications, where a Kastigar-like hearing is compelled in order to preserve the privilege. Keep in mind that, if, at trial, the Government attempts improperly to use privileged communications (say attorney-client communications), the defense can object and the matter of the proper use of such communications can be resolved at that time. Alternatively, the defense might obtain some form of advance hearing via a motion in limine by mounting a credible argument that the Government may improperly rely upon privileged documents. These "corrective mechanisms" could be available even in compelled testimony over Fifth Amendment privileges, but the Supreme Court had granted in Kastigar the right to the hearing in which the burden is on the Government to disprove improper use. So, one might think, why would this need for a Kastigar-like corrective mechanism not apply to other potential improper use of other privileged materials the Government posseses?
In United States v. Warshak, 631 F.3d 266 (6th Cir. 2010), here, which I discussed in a recent blog on another issue, the Sixth Circuit focused on this issue. There, the Government had gathered by subpoena a "approximately '60,000 email communications from or to attorneys representing Berkeley and Warshak, communications facially and presumptively protected by the attorney-client privilege.'" At trial, the court held a Kastigar-like hearing but without the substantial burdens imposed by Kastigar, and held on the basis of limited evidence that the prosecutors did not intend to use the privileged documents. On appeal, the defendants asserted that they should have received a full blown Kastigar or Kastigar-like hearing to put the Government to the burden of proving that its case did not rest directly or indirectly on the privileged documents it obtained via the search warrant. (Note that these particular emails appear to have included both the emails from the ISP obtained by subpoena and from the Berkeley's computers (over 90) which had been copied pursuant to search warrant; in the immediately succeeeding portion of the opinion, discussed in a prior blog, Are Emails Stored on the ISP's Computer Subject to Fourth Amendment Protections? (7/28/12), here, the Court had held the obtaining of emails by subpoena to the ISP violated the Fourth Amendment's requirement for a search warrant but held that, given the uncertainty about the Stored Communications Act, the obtaining of the documents occurred in good faith and thus could be used in the prosecution; here we are talking about just a subset of those emails implicating privileges.)
The Sixth Circuit had previously
suggested that Kastigar concerns may arise in the context of other privileges, such as the privilege accorded to attorney-client communications. Specifically, this court has hinted, in dicta, that "the leaking of privileged materials to investigators would raise the spectre of Kastigar-like evidentiary hearings." In re Grand Jury Subpoenas, 454 F.3d 511, 517 (6th Cir. 2006).But no court had held that. Indeed, the Fourth Circuit had held in United States v. Squillacote, 221 F.3d 542 (4th Cir. 2000) that a Kastigar-like hearing was not required for other types of privileged testimony (there telephone surveillance including conversations between one of the defendants and her psychotherapists). The Fourth Circuit appears to have focused on a key difference between the Fifth Amendment Privilege and other types of testimonial or evidentiary privileges that were not the results of compulsion overriding a Constitutional privilege.
The Sixth Circuit agreed with the Fourth Circuit, apparently for the same reasons.
I suggested above that for the privileged documents that do not qualify for Kastigar-like hearing, the defendant can still present the issue by objection to evidence at trial or by motion in limine before trial. These are not as good as the Kastigar hearing because of the burdens the prosecutor must meet in Kastigar hearings, simply because the defendant may not know enough to perfect the objection.