EVIDENCE UPDATE 2022

Written by Professor Chris Chambers Goodman, Esq.^*

SCOTUS ISSUES TWO EVIDENCE DECISIONS!

The United States Supreme Court decided two cases and granted certiorari on two other cases involving evidentiary issues in 2022. One of these was argued, and then dismissed, and the other had not yet been set for argument at the time of this publication. The case awaiting argument is Samia v. United States,¹ which addresses the Confrontation Clause, and specifically whether admitting redacted versions of a codefendant’s hearsay statements that indirectly inculpate the accused violate it.²

In January, 2023, the Court heard oral argument in In Re Grand Jury,³ which presented the issue of "whether a communication involving both legal and non-legal advice is protected by attorney-client privilege when obtaining or providing legal advice was one of the significant purposes behind the communication."⁴ Petitioners identified a three-way split in authorities and questioned the Ninth Circuit decision, which applied the primary purpose test to weigh the significance of the legal and nonlegal communications.⁵ In oral argument, the justices inquired about the percentage of information for the purpose of legal advice that is necessary to deem a communication privileged, and when and whether any insignificant percentage focused on obtaining legal counsel or advice would be enough to render the entire communication privileged.⁶ The debate was over the whether the primary purpose test should be the standard or the significant purpose test should be the standard. On January 23, 2023, the court dismissed the writ as "improvidently granted,"⁷ and thus the apparent split remains.