Clements v. Honorable Deborah Bernini
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The Supreme Court vacated the order of the trial court appointing a special master to conduct an in camera review of recordings of jail phone calls between Defendant and a criminal defense attorney to determine whether the calls were privileged, holding that a court may not invade the attorney-client privilege to determine its existence, even in camera using a special master.
Specifically, the Supreme Court held (1) a party claiming the attorney-client privilege must make a prima facie showing supporting that claim, and upon such a showing, the court may hold a hearing to determine whether the privilege applies; (2) once the privilege has been established, a party attempting to set it aside under the crime-fraud exception must demonstrate a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies, and only then may a special master review the privileged communications; and (3) because the State conceded that it cannot meet its burden, if the court determines that the privilege applies, the State may not review the recordings between Defendant and his attorney.
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