Is a lawyer allowed to follow a client&#39;s instructions to hide evidence? The police arrested a suspect linked to sexual assaults. The police searched his home. It sounds like initially the search warrants were very limited in scope but they widened as things turned up. While he was in jail, his lawyer followed his instructions to hide evidence. From Wikipedia Bernardo told his lawyer, Ken Murray, that the rape videotapes were hidden in a ceiling light fixture in the upstairs bathroom. Murray found the tapes and hid them from evidence. Later Murray resigned as Bernardo’s lawyer and John Rosen stepped in. Rosen turned the tapes over to police. [17] Murray got off on all charges. How is this possible? He knew what was on the tape, at least in a general sense. Doesn't a lawyer have a responsibility not to defend a specific fact that they know is criminal? This action had the potential to lead to the release of an extremely dangerous person to the public. I find a lot of the story confusing. For example if police were still searching the house why would they let someone remove the tapes? If they were finished searching the house and didn't find them then why did he get the lawyer to remove them? Also why could he be kept in jail without charge for 71 days?
Quick answer &quot;Is a lawyer allowed to follow a client's instructions to hide evidence?&quot; Probably not. I discuss this in the final section of this answer. About this specific case, the Crown did not prove beyond a reasonable doubt that the lawyer (Ken Murray) had intended to conceal the tapes permenantly or that he was aware of an obligation to disclose them prior to trial. As summarized by Austin Cooper, K.C.: Justice Gravely held that the concealing of the tapes for 17 months until Bernardo’s trial had a tendency to obstruct the course of justice, and therefore the actus reus of the offence was proved. On the issue of whether Mr. Murray willfully intended to obstruct justice, because it was feasible that Mr. Murray could have used the tapes for the defence and may well have believed that he had no obligation to disclose the tapes until the trial, he found the necessary mens rea was not proved. Accordingly, he found him not guilty. Deeper answer I'll first attempt to explain the trial judge's reasons (R. v. Murray, 2000 CanLII 22378 (ON SC)). At the end, I answer your more general questions. Facts February, 1993: Ken Murray was retained to defend Paul Bernardo on sexual assault charges; it was this charge for which Bernardo was already in custody at the time of the search of his home. April 30, 1993: The final search warrant of the Bernardo home expired. May 6, 1993: Ken Murray opened a letter from Bernardo that instructed the defence team to retrieve six 8mm videotapes. They located the tapes, removed them, and they committed to not tell anyone about the tapes. May 18, 1993: Bernardo was charged with two counts of first-degree murder and related offences. Murray's retainer was expanded to include defence of these charges. Bernardo authorized Murray to copy and review the videotapes and make use of them as appropriate in his defence. Two of the tapes contained evidence of sexual assault and death threats. Others contained evidence about the character and actions of a co-accused which Murray thought could be useful in Bernardo's defence. Early June 1993: Murray made a copy of the tapes and became fully aware of their contents. July 11 and 12, 1994: Bernardo told Murray he intended to deny ever having any contact with the victims that were on the tapes. He told Murray that the tapes were not to be used to contradict this position. July 24, 1994: After learning about DNA evidence and learning what the co-accused told police (all pointing to Bernardo being with the victims in the home), and after confirming that Bernardo insisted on maintaining his position that he had no contact with the victims and that the tapes were not to be used, Murray &quot;felt obliged to terminate the solicitor-client relationship&quot;. August 25, 1994: After a period of discussion with John Rosen (a lawyer from another firm), Rosen agreed to take over the defence of the first-degree murder charges. Murray did not tell Rosen about the tapes. Murray would remain defence counsel on the sexual assault charges. August 27, 1994: Rosen and Murray met with Bernardo to explain the change in counsel on the murder charges. August 30, 1994: Bernardo directed Murray to not reveal any of his materials to &quot;other counsel retained on my behalf for other offences that are currently before the Court... unless I specifically direct the release of such materials, in writing.&quot; Murray retained his own lawyer who further sought advice from the law society. The law society advised that (1) Murray remove himself as counsel for Bernardo on all matters; (2) Murray give the tapes to the judge in a sealed packet to be subect to court determination; and (3) to tell Bernardo of these steps as soon as possible. Rosen (the new defence counsel on the murder charges) became aware of these plans, learned that the tapes existed, and was concerned the tapes would be turned over without any input from him. September 21 and 22, 1994: After much discussion with Crown counsel, Rosen got instructions from Bernardo to turn over the tapes; the tapes were delivered to the Metropolitan Toronto Police and the Niagara Regional Police. The charge Ken Murray was charged with wilfully obstructing or attempting to obstruct the course of justice. The law The judge applied what is known as the &quot;tendency test&quot;. He said: Attempting to obstruct justice is construed as the doing of an act which has a tendency to pervert or obstruct the course of justice (the actus reus). &quot;Wilfully&quot; then constitutes the mens rea -- that is the act is done for the purpose of obstructing the course of justice He noted: The system functions within the broad principles of the presumption of innocence and the right to silence. The Crown must fully disclose its case. The defence has no reciprocal obligation. Application of the law Actus reus In this case, the judge found that Murray had done the actus reus of the offence: On the face of the evidence Murray's action in secreting the critical tapes had the tendency to obstruct the course of justice at several stages of the proceedings. The tapes were put beyond the reach of the police who had unsuccessfully attempted to locate them. Secreting them had the tendency to obstruct the police in their duty to investigate the crimes of Bernardo and Homolka. Further, there was no justification that negated the actus reus. This evidence on the tapes was not privilged; it was not communication between solicitor and client. The judge found that &quot;once [Murray] had discovered the overwhelming significance of the critical tapes, Murray... was left with but three legally justifiable options&quot;: (a) immediately turn over the tapes to the prosecution, either directly or anonymously; (b) deposit them with the trial judge; or (c) disclose their existence to the prosecution and prepare to do battle to retain them. Mens rea The Crown had to prove that Murray's intention was to obstruct the course of justice. The judge found that the Crown did not prove this element beyond a reasonable doubt. The judge found that Murray may have not intended to permanently suppress the tapes and that Murray may have believed he had no obligation to disclose the tapes prior to the trial. He had presented several theories regarding the potential usefulness of the tapes to the defence which would have required holding back the tapes for their tactical or &quot;surprise&quot; value. Also, the judge noted that the law in this area was confusing.1 While Murray made only a token effort to find out what his obligations were, had he done careful research he might have remained confused. The weight of legal opinion in Ontario is to the effect that lawyers may not conceal material physical evidence of crime, but how this rule applies to particular facts has been the subject of extensive discussion. Lawyers in the United States have been afflicted with the same dilemma. In the materials supplied to me by counsel, there is reference to at least 15 law journal discussions on the issue. Ethical responsibility Doesn't a lawyer have a responsibility not to defend a specific fact that they know is criminal? No. But they do have an obligation to not lie to the court or to allow their client to lie to the court. This is why Murray knew he had to withdraw from the case when Bernardo was committed to the defence that he had never encountered the victims. To answer your title question, &quot;Is a lawyer allowed to follow instructions from his client to hide evidence?&quot;, the answer today is &quot;probably not.&quot; It has even been suggested that if defence counsel is faced with this issue, they should instruct their client: It is evidence that might convict you; if you give it to me, I may have to turn it over to the prosecution. Take it away and keep it in your residence; if you destroy it, you may be guilty of a crime. The Law Society of Ontario's Rules of Professional Conduct now say (Rule 5.1-2A): A lawyer shall not counsel or participate in the concealment, destruction or alteration of incriminating physical evidence or otherwise act so as to obstruct or attempt to obstruct the course of justice. Any lawyer faced with this dilemma should probably do what Mr. Murray eventually did and retain their own lawyer and/or get advice from their law society. 1. While the maxim &quot;ignorance of the law is no excuse&quot; generally holds true, the mens rea of this offence includes an intention to obstruct justice. The judge understood this to invite an inquiry into what Murray believed the law required of him. This approach has been criticized: see Lucinda Vandervort, &quot;Mistake of Law and Obstruction of Justice: A 'Bad Excuse'... Even for a Lawyer&quot;, 2001.
It depends on the nature of the crime, among other things. Under Section 8 of the Police and Criminal Evidence Act 1984 (PACE) the police must provide evidence to a court that a search warrant is necessary to secure and obtain evidence relevant to an ongoing investigation into a crime. If there is evidence that time is of the essence with regards to the evidence at stake (e.g. there is a high probability that the evidence will be destroyed unless it is secured immediately) then the search warrant will be expedited. Once the search warrant has been secured, it will be an operational matter for the police to decide when and how to act on it. They could choose to do a dawn raid, for example, or they could monitor the suspect for a week and then search the property when the suspect is out. Be aware that under Section 18 of PACE, a search warrant is not necessarily required. The police may, in the course of arresting someone for an indictable offence, search the premises without a warrant provided certain criteria are met. Of course, this is predicated on the police having grounds for arrest, and in the vast majority of cases, a search warrant will be obtained.
So, as you say, these witnesses who try to help their buddy out may be committing perjury. Also, D himself, by lining this up, is probably on the hook for conspiracy to commit perjury and being complicit in perjury. Aside from that, I think your question is: would getting people to testify in a way that implies they did the crime lead to an acquittal for the murderer? The answer is: maybe. The jury will either vote to acquit or to convict. If the jury votes to acquit, then it's over. Double jeopardy protects D from being tried for murder again. But, if the jury votes to convict, the fact that D had his friends testifying in the way you suggest isn't going to get the conviction overturned on appeal because &quot;a reviewing court resolves neither credibility issues nor evidentiary conflicts.&quot; People v. Young, 34 Cal.4th 1149, 1181 (Cal. 2005). I haven't done a trial yet, but it strikes me that that might not be the greatest trial strategy. I think generally defense lawyers would prefer to make their client look the furthest thing from gang affiliated as possible. Don't lie to a court or ask anyone to lie to a court for you.
As far as I know, every jurisdiction in America limits perjury to cases of lying under oath. Because it seems unlikely that the driver would be under oath at this point, you would probably lack probable cause to make an arrest. At the same time, many states have separate laws addressing the making of false reports, lying to an officer, etc. I'd imagine most jurisdictions would have a law supporting an arrest for lying at the scene, even if not for perjury.
If there is no reasonable suspicion of a crime having been committed or about to be committed, then there is no reason to seize you, and the Fourth Amendment "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated". Even if a state has a "stop and identify" statute, reasonable suspicion is a minimum requirement for seizing your person, even temporarily. Texas is not a state with an obligation to identify statute. I would not expect the state to be very helpful, given the facts as you report them. There might be others, such as the ACLU, who may be happy to discuss the particulars of your case. The police need to justify a stop in court, and not to the person being seized. I don't know if there is any case law saying that a false police statement to a detainee ("No, I don't have a reasonable suspicion") precludes claiming in court that there was reasonable suspicion, but it should at least make the claim of reasonable suspicion less credible. They do have to have reasonable suspicion, and they do not have to tell you what that suspicion is. OTOH if they are just harassing bicyclists, that would be illegal.
Is it true that there has never been a single case It is tough to prove a negative. I am not going to completely parse the quote but please notice that the quote states "we couldn't find" and concludes that "it doesn't happen." Given these two pieces of information I do not conclude that there has never been a single case. Rather I conclude that the speaker in your quote could not find a case therefore he concluded that there has never been a single case. It's largely impossible to determine that there has never been a single such case. We can search published opinions but that barely scratches the surface of lawsuits that are filed. It is entirely possible that someone filed a suit which was quickly dismissed. The Act provides a defense, it does not bar lawsuits. Someone might get sick from food and not know where the food came from so they sue the provider. If this happens the provider may raise the Emerson Act as a defense and escape liability to the extent applicable. But again, we will never know because it's impossible to examine every lawsuit filed in this country.
Conducting an illegal search does not amount to a permanent get out of jail free card (&quot;does that invalidate all evidence against you&quot;. What is excluded is evidence derived from that illegal search, regardless of what crime they were searching for. It would include later evidence for an unrelated crime where the probable cause was uncovered by the illegal search. The doctrine is not absolute, so a grand jury can inquire about a matter brought to their attention via an illegal search (&quot;the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons&quot;, US v. Calandra). Also, the doctrine excludes the product of a bad faith search without probable cause e.g. where the officer lies about the probable cause. There is also a &quot;social cost&quot; consideration, see Pennsylvania v. Scott. Utah v. Strief establishes three related doctrines. Unlawfully-obtained evidence independently acquired by officers from a source may be admittede. Evidence may be admitted if it would have been discovered without the unconstitutional source. Finally, since the poison fruit doctrine is intended to limit illegal police action, it may be admitted when there is a remote connection between illegal police conduct and gathering of evidence (e.g. the existence of an arrest warrant, discovered after the search). Nothing in your hypothetical points to an exception. The &quot;social costs&quot; consideration was specifically related to &quot;social costs of allowing convicted criminals who violate their parole to remain at large&quot;, but the potential for wider application is established (however, it is well-established that evidence of ordinary drug possession is excluded, from the myriad cases of such exclusions over the past century).
So, lets say for argument's sake the search is illegal (we'll discuss scenario later). Is the murder weapon inadmissible? No. Evidence seized in an illegal search is inadmissible for use in court, as to allow it would reward the state for breaking the law. At time of arrest it's still evidence and depending on what other evidence comes out might not be inadmissible (More on this later). If the knife is the only thing linking the driver to the murder, then it's inadmissible. What would happen to the driver, who was most likely the murderer? At this stage, the driver might be arrested and charged... inadmissibility is a matter for pre-trial motions, which takes place after the cop made the search. Whether the guy is a murder or not, he is a suspect who has been accused. Can the police arrest him, and investigate him with the hope of finding other evidence that would be enough to sentence him for the murder, despite the inadmissibility of the actual weapon? This all takes place before the inadmissibility of evidence is declared, so they certainly could investigate the guy, cuff him, read him his rights, book him, Danno, and put him in jail to help build their case. HOWEVER, if the knife is the only thing linking the man to the crime, then all of this becomes what's called &quot;Fruit of the Poisonous Tree&quot;. Because the knife was used as the sole evidence to secure search warrants against the suspect, and should the knife become inadmissible, anything that resulted from the execution of the warrants is itself inadmissible. is the murderer in practice immune from being charged for this case, since the weapon cannot be tied to him? Not entirely. Rarely is a murder weapon needed to secure a conviction. Not only that, but while the search is illegal, there is an exception called &quot;Inevitable Discovery&quot; which holds that evidence seized illegally initially may still be admissible if the cops can show that the legally obtained evidence would have led to the knife. Suppose they had CCTV footage and captured the man entering the area of the scene and found out he had a connection to the victim, and got a warrant that would have included his car... that would mean the knife is admissible even if the search was illegal. If the weapon is considered inadmissible, is it returned to the suspect? If yes, would it also be returned even if it is of a type that the suspect is not legally allowed to own? Yes to both, though when it would be returned is subject to possible use in other investigations. Additionally, while I don't know of any knife ban laws in the U.S., there are examples of contraband seized by arrest for a different offense was not returned when the initial offense was overturned on appeal, meaning the contraband evidence was no longer validly seized and thus that half of the case was overturned... but the defendant wasn't returned his drugs. Is the weapon permanently inadmissible for all future, or could it be used in a later court proceeding? No. I'm starting to suspect I know the TV show and episode that inspired this question, but the search violated suspect 1's rights and thus was inadmissible for his trial. However, if a second suspect was discovered as the evidence was developed, and the investigation lead to the knife (say... suspect 2 had access to suspect 1's car... like say... through his job at a car wash that suspect 1 was patronizing... and planted the knife in suspect 1's car to frame him) then the knife is admissible because of inevitable discovery rule. Now, the TV Show I alluded too, and you'll forgive me as it's been a while, the events were that the cop pulled over suspect 1 for a valid reason (busted tail light, intentionally done by suspect 2 to get attention) and saw the knife on the backseat of the car, which is not a violation of search and seizure rules. The bloody knife was in plain view and gave probable cause to arrest and search the entirety of the car. If you leave evidence in a place where the officer can see it, they can seize it in a car at least. Places like the glove box, under the seats, or the trunk would properly hide it and not allow the officer to search the car, but through the windows is just fine.