Newman v. State
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF MARYLAND No. 31 September Term 2004 __________________________________ ELSA NEWMAN V. STATE OF MARYLAND __________________________________ Bell, C.J. Wilner Cathell Harrell Battaglia Eldridg e, John C., (Retired Specially Assigned) Rodowsky, Lawrence F. (Retired Specially Assigned) JJ. Opinion by Battaglia, J. Harrell, J. Con curs in P art A an d Resu lt, and Dissents from Part B; Wilne r, Cathe ll, and R odow sky, JJ., Dissent Filed: December 13, 2004 This case prese nts the issue o f the prope r scope of the attorney-client privilege and whether a curative instruction adequately counteracted the prejudice of eliciting testimony about the exercise of a defendant s Miranda rights. Because we find that the communications between Elsa Newman [hereinafter Newman ] and her for mer attor ney, Stephen Friedman [hereinafter Friedman ], at issue in the present case fall within the attorney-client privilege and are not subject to the crime-fraud exception, we reverse the decision by the Court of Special Appeals and remand the case to the Circuit Court for a new trial. As guidance for the trial court on remand, we also will address whether the curative instruction adequately dispelled the prejudice caused by eliciting improper testimony about the exercise of Newman s Miranda rights. I. Background A. Facts Newman and Arlen Slobodow [hereinafter Slobodow ] married in 1990, and thereafter they had two sons toge ther, Lars and Herb ie. In 1999, Newman s marriage to Slobodow deteriorated and the co uple began div orce and c ustody proce edings in the Circuit Court for Montgomery County, Maryland during which Newman was represented by Friedman. During the course of Friedman s representation of Newman in the spring of 2001, Friedman asked Newman s close friend, Margery Landry [hereinafter Landry ], to be present in his meetings with Newman for a cool head in the room. Landry and Newman discussed various plans involving harming Newman s children an d blaming Slobodo w while in Fried man s presen ce. On August 31, 2001, N ewman met with F riedman in preparation for a custody hearing on September 4, 2001 before Circuit Court Judge James Ryan. At one point during her meeting with Fried man, Ne wman stated, Yo u know , I don t have to kill both children . I only need to kill Lars because I can save Herbie, and then Arlen [Slobodow] will go to jail and get what he deserves because he is a criminal, and I can at least save Herbie. Friedman disclosed to Montg omery Cou nty Circuit Court Judge Louise Scrivener the statements made by Newman the previous Friday. After Judge Scrivener informed Judge James Ryan of Friedman s disclosure, Judge Ryan an nounced the sub stance of Friedma n s disclosure during the custody hearing on September 4, 2001. Newman was granted supervised visitation and Friedman s appearance as her counsel of record was stricken. The trial on the merits was postponed until December 7, 2001, and then again to January 28, 2002. Prior to the trial on the merits, on January 7, 2002, at ap proximate ly 3:30 a.m., Landry entered Slobodow s house through an unlocked basement window carrying porno graphic materials and a Sm ith and W esson 9M M han dgun. In S lobodow s bedroom , she foun d him asleep in bed and fired two s hots hitting Slobodow once in the right leg. Slobodow struggled with Landry, pulling off her mask, and Landry fled the bedroom. Slobodow went dow nstairs, was attacked once more by Landry, and during the altercation bit Landry s finger. Landry left the h ouse. Later that morning, Montgomery County Police arrested Landry at her home. On 2 January 9, 2002, the State of Maryland filed cha rges agains t Newm an for con spiracy to commit first degree murder and conspiracy to commit assault in the first degree, and Newman was arrested the following day. Thereaf ter, Lan dry pled guilty to assa ult, b urglary, reckless endangerment, use of a handgun in the commission of a felony, and obliterating the serial number on a gun. On Decembe r 17, 2002, she wa s sentenced to fifty years impriso nmen t, with all but twe nty years sus pende d. B. Procedural History On April 4 , 2002, Newman ap pear ed in the C ircuit Co urt for M ontg ome ry County, Maryland and entere d a plea of not guilty. On Ju ne 28, 200 2, the Circu it Court held a pretrial hearing in which it considered the State s oral Motion in L imine to compel F riedman to testify about the matters that he had disclosed to Judge Scrivener. The State called Friedman to the stand. Newman requested that the court clear the courtroom prior to Friedman s testimony to preserve the confid entiality of Friedman s testimony prior to the court s ruling on its status under the attorney-client privilege. After the ju dge rejected that request, Newman asserted that the attorney-client privilege precluded Friedman s testimony, for which she was g ranted a stan ding obje ction. At the close of Friedman s testimony concerning his relationsh ip with N ewman and the co ntent of his d isclosure to Judge Scrivener pursuant to Rule 1.6 of the M aryland Rule s of Profe ssional Co nduct, 1 the court 1 Maryland Rule of Professional Conduct 1.6 provides: (a) A lawyer shall not reveal informatio n relating to representation of a client unless the client consents after 3 ruled that Friedman acted reasonably in disclosing Newman s statements under Rule 1.6 and that his disclosure obviated Newman s attorney-client privilege regarding the disclosed stateme nts. On August 2, 2002, the State called Friedman to the stand at Newman s trial. Under court order, Friedman testified as follows: STATE: When during that period of time from two to seven, aside from the break that you took, was there anyone else meeting or in the room with you and Ms. Newman? FRIEDMAN: I think I spared Ms. Rogers [his secretary] and let her do some thing else. Sh e probab ly popped in and ou t, but mostly it was just me and Ms. Newman. *** FRIEDMAN: She had stopped b eing in a rage, got very quiet, very thoughtful, and tilted her head a little, and her eyes rolled up, and spoke in a voice different from her normal voice. STA TE: What did she s ay? consultation, except for disclosures that are impliedly authorized in order to carry out the representatio n, and exc ept as stated in paragraph (b). (b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessa ry (1) to prevent the client from committing a criminal or fraudulent act that the lawyer be lieves is likely to resu lt in death or substantial bodily harm or in substantial injury to the financial interests or property of another; (2) to rectify the consequences of a client s criminal or fraudulent act in the furtherance of which the lawyer s services were used. 4 FRIEDMAN: She said, You k now, I do n t have to k ill both children. I only need to kill Lars because I can save Herbie, and then Arlen w ill go to jail and get w hat he dese rves becau se he is a crimin al, and a t least I ca n save H erbie. STATE: What was your response when she said this to you? FRIEDMAN: Well, this had been goin g on all day a ctually it had been going on fo r two years. Wha t I said to her is w hat I would say to her i n the pa st, and that is, Ms. N ewman , this is like talkin g abou t a bom b in the a irport. There are consequ ences w hen you say thing s like that. You cannot involve me in a murder case, and you need to convince me that you are just frustrated, and angry, and scared to death, and Ms. Newman w as just scared to de ath before trial. She would be so scared she couldn t prepare for trial. I think that is why she was firing me, she wouldn t come in to meet with me because she was so horrified of going to court, that is what I wanted to rationalize, and I said, You need to convince me that you are just upset not say it, you need to convince me, or othe rwise, I a m goin g to tell Ju dge R yan. *** STATE: About h ow ma ny times do you th ink she told you that she was conside ring killing Arlen [Slobod ow]? FRIEDMAN: She and Margery [Landry] literally sat in front of me in my office and conspired to do it, that is why I had to bar Margery from coming into my office[2 ] *** STATE: When did that happen, Mr. Friedman? 2 We note that Friedman s testimony exceeded the scope of his testimony at the pretrial hearing to include c ommu nications inv olving La ndry that were no t part of his disclosure pursuant to MRPC Rule 1.6. The trial court did not hold a proceeding out of the presence of the jury to determine if the addition al testimony w as protected by the attorney-client privilege. 5 FRIEDMAN : It happened twice. *** STATE: And could you tell us about that conversation? FRIEDMAN : Elsa and Margery would sit in my office and I invit[ed] Marge ry into the conversations because I wanted what I thoug ht wou ld be a c ool hea d in the r oom. *** FRIEDMAN: The first time it happene d I was rea ding a repo rt, and they literally sat there, and Elsa was terribly distraught because it was durin g a time where and they do this is the District of Colum bia I mea n it is almost e x parte in the District of Columbia if somebody swears out an abuse allegation, they take your kids away from you, and they say, Well, yo u can h ave a h earing in three to s ix mon ths. Well, in his case Elsa was in terrible agony because they gave the kids to the person that she w as convin ced was sexually abusing them, and if she wa s right, this was a monstrous screw up in the system, and they wouldn t give us a hearing. So she is very distraught over th is, and a s I said, I cut women in this I repre sent abuse d wom en, and this is some of the worst kind of abuse, and I cut people a lot of slack because I expect them to be appro priately very emotio nally distraught, and she wou ld sit there an d she sat the re in front of me, and I was reading a report about som ething, and she was ta lking to Margie about shooting him and framing Arlen, and I will have to have an excuse you know if you know, should I do it, or how sh ould we do it? Should we hire someone, and she said, No. No. Ruthann[ 3 ] said always do it [yourself] because when you try and hir e some body, you g et caug ht. 3 Ostensibly referring to Ruthann Aron who pled no contest to hiring a hit man in 1997 to kill her h usban d. See Rafae l Alvar ez, Ruthann Aron, Who Tried to Have Husband Killed, Released After Two Y ears 1994 Senate C andidate Pleaded No Contest, B ALT . S UN, Oct. 18, 2000, at 2B. 6 (Footnotes added). Newman once again asserted that the attorney-client privilege precluded the admission of Friedman s testimony, which the court rejected. During the trial, the State also called Detective Mercer, the officer who arrested Newman, to testify in its case in chief, and asked her, And what rights did you advise [Newman] of? Detective Mercer responded, That she had the right to remain silent, she had the right to an attorney. At which time she advised that she would like to consult w ith an attorney. Actually, she had an attorney waiting in the station lobby for her. Newman objected and moved for a mistrial. The trial court denied her motion and instead gave the jury the following curative instruction: You have heard testimony that Elsa Newman was accompanied by an attorney when she appeared at the police station on January 10, 2002. This is not evidence to be considered by you. Ms. Newman is presumed to be innocent of the charges against her. You have heard evidence that Ms. Newman s ex-husband, Arlen Slobodow, was shot on January 7, 2002. Ms. Newm an s hous e was sea rched follo wing the shooting. She was aware of all this on January 10, 2002. It is fully consistent with the presumption of innocence that anyone under these circumstances would appear and consult with an attorney at the police station to protect his or her interests. On August 6, 2002, the jury found Newman guilty of conspiracy to commit first degree murder, attempted first degree murder, assault in the first degree, burglary in the first degree, an d use of a handgu n in the commission of a felony. Newma n filed a motion for a new trial, wh ich the c ourt de nied. On January 24, 2003, Newman received four concurrent 7 sentences of twe nty years, on e conc urrent se ntence of fifte en years, a nd upon re lease is require d to serv e five yea rs supe rvised p robatio n. Newman filed a Notice of Appeal to the Court of Special Appeals. She presented eight issues for review in the Court of Special Appeals including the denial of Newm an s motion to disqualify the Montgomery County State s Attorney s Office, the admission of Friedman s testimony, the denial of New man s requested v oir dire concerning bias, denial of Newman s motion for mistrial due to improper testimony conce rning her Miranda rights, the admission of character evidence in the State s case in chief, the denial of Ne wman s requested jury instructions, the denial of New man s motion for new trial, and the sufficiency of the evidence to convict New man o n any of t he cou nts. Newm an v. State, 156 Md. App. 20, 30, 8 45 A.2 d 71, 77 (2003 ). The Court of Special Appeals, in a reported opinion, held that Friedman s testimony was admissible under the crime-fraud exception to the attorney-client privilege because Newman evidenced an intent to co mmit future crimes . Id. at 49, 845 A.2d at 88 . Moreover, the court determ ined that ba sed on Frie dman s tw o-year relationsh ip with N ewman and his role as an officer of the court, the State presented sufficient evidence to establish that the stateme nts exp ressed N ewm an s inte nded f uture ac ts. Id. The court also concluded that the prejudice caused by the improper testimony of Detective Mercer that New man w as advised of her righ ts under Miranda and that New man s attorney was aw aiting he r at the sta tion wa s cured . 8 Id. at 57, 845 A.2d at 93. Afte r examin ing the f acts of th is case, th e cou rt determ ined that t he prejudice caus ed by the reference to Newm an s exercise of her Miranda rights did not exceed the curative instruction. Id. at 59-6 0, 845 A .2d at 94 . Therefore, it held that the prejudice suffered by Newman was cured by the trial court s i nstructio n. Id. at 60, 845 A.2d at 9 4-95. The Co urt of Special A ppeals concluded, after analyzing the remaining six issues presented, that none constituted reversib le error a nd aff irmed th e judgm ent of th e trial cou rt. See gene rally Newm an v. State, 156 Md. A pp. 20, 845 A.2d 71 (2003). We granted New man s petition for wr it of certi orari, Newman v. State, 381 Md. 674, 851 A.2d 593 (2004), which presented the following questions: 1. Did the trial court err in allo wing N ewman s domestic relations attorney to testify abo ut confide ntial attorney-client communications? 2. Did the trial court abus e its discretion in denying Newm an s Motion for Mistrial upon the State eliciting testimony about Newm an s exercise of her Miranda rights? 3. Did the trial court abuse its discretion in a llowing the State to introduce various forms of inadm issible character evidence? 4. Did the trial court err in denying Ne wman s M otion for a New T rial? 5. Did the trial court err in d enying New man s req uested vo ir dire concerning the po tential bias of members of the jury pan el? We hold that the trial court erroneously admitted F riedman s testimony conce rning communications with Ne wman that were su bject to attorne y-client privilege. Because we 9 reverse the decisions of the Court of Special Appeals and Circuit Court and remand the case for a new trial on the basis of that error alone, we need not a ddress the o ther issues raise d in this appeal. As guidance for the trial court on remand, however, we will address the admission of testimon y about Newm an s exercise of her Miranda rights. II. Discussion Newman argues that there was no justification for comp elling Friedm an to disclose statements that she claims are subject to attorney-client privilege. She asserts that the crimefraud exception to the attorney client privilege, relied upon by the Court of Special Appeals, was never raised in the trial court because the trial judge only focused on the reasonableness of Friedman s prior disclosures under Rule 1.6. Newman asserts that allowing the Court of Special Appeals s decision to stand would irreparably damage the relationship between attorney a nd clien t. Newman relies on our decision in Harrison v. State, 276 Md. 122, 151-52, 345 A.2d 830, 846-47 (1 975), for the premise tha t a trial court initially must hear testimony outside of the jury to determine whether attorney-client priv ilege attache s to specific communications. She states that the use of in camera proceedings has b een approved b y the Supreme Co urt in U.S. v. Zolin , 491 U .S. 554, 109 S.Ct. 2619, 105 L.Ed.2d 469 (1989), to determine the applica tion of th e attorne y-client pri vilege o r an exc eption to that priv ilege. Newman urges this Court to adopt the interpretation of the scope of the crime-fraud 10 exception4 set forth by the District of Columbia Court of Appeals in In re Public Defender Service, 831 A.2d 890 (D.C. 2003), that the exception applies only when the communications to the attorney are in tended by the client to directly advance criminal or fraudulent activities with the attorney s assistance. Newm an asserts that the fact that the com munications conce rn a potential future crime is not sufficient to destroy the privilege. She claims that her statements in Friedman s presence were manifestations of the menta l strain and an guish with which she stru ggled d uring th e custo dy disput e with h er ex-h usban d. Newman also asserts that the trial court erred in denying her motion for mistrial after the State had elicited testimony from D etective Susan M ercer, the officer who a rrested Newman and Landry, regarding Newman s exercise of her Miranda rights. New man poin ts to this Court s opinion in Dupree v, State, 352 M d. 314, 7 22 A.2 d 52 (1 998), w hich she interprets to mean that the mere mention that a defendant has been advised of his rights under Miranda is reversible error. Moreover, Newman contends that in Hardaway v. State, 317 4 The crime-fraud exception, as provided in the Restatement Third of the Law Governing Lawyers, is defined as: The attorney-client privilege does not apply to a communication occurring w hen a client: (a) consults a lawyer for the purpose, later accomplished, of obtaining assistance to engage in a crime or fraud or aiding a third person to do so, or (b) Regardless of a client s purpose at the time of consultation, uses the lawyer s advice or other services to engage in or assist a crime or fraud. Restatement (Third) o f the Law G overning Law yers, §82 (2000, 2004 C um. Supp.). 11 Md. 160, 562 A.2d 12 34 (1989 ), this Court held that the curative instruction is given in error if it would ca use the jury to co nsider a def endant s p ost-Miranda silence. She asserts that the Supreme Court has held in Doyle v. O hio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), and Brecht v. Gordon, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1992), that the use of a defendant s silence after being Mirandized is fundamentally unfair. Newman also finds fault in the trial court s curative instruction because it f ailed to adv ise the jury to draw no inferences from Newman s failure to make a statement to the police or protest her innocence. She argu es that her ele ction to con sult with an a ttorney necessa rily implies that she inv oked h er right to remain silent. Concerning Newman s assertion of attorney-client privilege and the denial of her request for an in camer a hearin g, the State counters that Newman failed to preserve her argument for an in ca mera hea ring becau se she did n ot request o ne in the trial court. The State also argues that Newman s continuing objection was inadequate to preserve her claim that the examination of Friedman exceeded the scope of the trial court s pretrial ruling. Moreover, the State asserts that N ewman waived h er privilege w ith respect to sta tements made to Fried man w hen L andry w as prese nt durin g the dis cussion . The State argues that the crime-fraud exception to the privilege applies to Newm an s communications with Friedman. The State asserts that Newman used F riedman as a sounding board fo r her plan to k ill her sons and husband and that she attempted to involve Friedman in her p lans. The State claims that to overcome the crime-fraud exception 12 Friedman would have had to have prevented Newm an s perpetration of the crime, which, according to the State, did not happen because Slobodow was shot. Because the attack took place, the State asserts that the communications must be considered to be in furtherance of that crime. Eve n if the admission of Friedman s testimony was error, the State asserts that it was harm less in the present case because excluding Friedman s testimony would not have affected the jury s verdict in the case. Finally, the State claims that the failure to conduct an in camera h earing was not a procedural error because the trial court determined the admiss ibility of Fr iedma n s testim ony in a h earing o utside th e prese nce of the jury. The State also argues that the decision whether to grant the m otion is left to the trial court s discretion and that Detective Mercer s statement w as an isolated comme nt. The Sta te also distinguishes Dupree v. State, supra, and Zemo v. State, 101 Md. App. 303, 646 A.2d 1050 (1994), be cause the tria l court in the present case immediately gave the jury a curative instructio n. A. The Application of the Attorney Client Privilege The Scope of the Privilege The Supreme Court has recognized the attorney client privilege as the oldest of the privileges for confidential communications known to the common law. Upjoh n Co. v . United States, 449 U .S. 383 , 389, 10 1 S.Ct. 6 77, 682 , 66 L.E d.2d 58 4, 591 ( 1981) . The attorney-client privilege dates back in the commo n law to the reign of E lizabeth I (1558-1603) and probab ly originate d in the c ompu lsion of witnes ses to tes tify. Harrison, 13 276 Md. at 131, 345 A.2d at 836. Until 1776, it was not deemed to be a right of the client but rather was that of the attorney as a point of honor as an element of professional behavior. Id. In that year, the House of Lords in the Duchess of Kingston s Trial (20 Howe ll, State Trials 355, 386 (1776)) ruled that her attorney, whom she had exempted from secr ecy, was required to respond to questions about his conversations with her some three decades earlier, even though the attorney had demurred, raising the point of honor. Id. This develo pmen t effec tively end ed the u se of th e poin t of hon or. During the latter half of the eighteenth century another theory evolved which recognized that the client h eld a privilege which p rohibited the disclosure o f client secrets by the attorney, rathe r than simp ly permitting the attorney to keep the client s confidences as a professional prerogative. Id. This theory rose to the forefront as the po int of honor receded and so on wa s in use th rough out the U nited S tates. Id., citing 8 J. W IGMORE, E VIDENCE, §§ 2290-91 (McNaughton Rev. 1961); C. M CCORMICK, E VIDENCE, §78 (2d ed. 1972) . In 1862, in Fulton v, McCracken, 18 Md. 528 (1 862), this Court stated that [n]o ru le is better established than that communication which a client makes to his legal adviser for the purpose of professional advice or aid shall not be disclosed, unless by the consent of the client for who se protection the rule was established. Id. at 542-43. We have stated that the privilege is an accommodation of the competing public interests of the need to pro mote candor in communications between attorneys and their clients and the general testimonial 14 compulsion to divulge relevant eviden ce in the pursuit o f truth a nd justic e. See Harrison, 276 Md. at 13 3, 345 A .2d at 837. It is so basic to the re lationship of trust between an attorney and client that, although it is not given express constitutional protection, it is essential to a defendant s exercise of the constitutional guarantees of counsel and freedom from s elf-incr iminatio n. Id. The privilege is understood to be a rule of evidence that prevents the disclosure of a confidential communication made by a client to his attorney for the purpose of obtaining legal advice. See E.I. du Pont de Nemours & Co. v. Forma-Pack, Inc., 351 Md. 396, 414, 718 A.2d 1129, 11 38 (1998), citing Levitsky v. Prince George s County , 50 Md. App. 484, 491, 439 A.2d 600, 604 (1982). In Harrison v. State, supra, we adopted Professor Wigmore s definition of the attorney-client privilege: (1) Where legal advice of [any] kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his insistence permanently protected (7) from disclosure by himself or by his legal adviser, (8) except the protection [may] be waived. 276 Md. at 135, 345 A.2d at 838, quoting 8 JOHN H. W IGMORE ON E VIDENCE § 2292, at 554 (McNaughton rev. ed. 196 1) (footno te omitted). T he comm on law p rivilege is cod ified in Section 9-108 of the Courts and Judicial Proceedings Article of the Maryland Code, which states, A person may not be compelled to testify in violation of the attorney-client privileg e. Md. Code (1974, 2002 Repl. Vol.), §9-108 of the Courts and Judicial Procee dings A rticle. 15 The privilege, although essential to an effective attorney-client relationship, is not absolute. In re Criminal Investigation No. 1/242Q, 326 Md.1, 11, 602 A.2d 1220, 1225 (1992). We have observed that [o]nly those attorney-client communications pertaining to legal assistance and made w ith the intention of confiden tiality are within the ambit of the privileg e. E.I. du Pont de Nemours, 351 M d. at 416, 71 8 A.2d a t 1138. Th is Court in Lanasa v. State, 109 Md. 602, 71 A. 1058 (1909), observed, [T]o make the communications privileged, they . . . must relate to professional advice and to the subject-matter about which the advice is sought. Id. at 617, 71 A. a t 1064. See also M orris v. State, 4 Md. App. 252, 255, 242 A.2d 559, 561 (1968), quoting Colton v. United States, 306 F .2d 633 , 637, cert. denied 371 U.S. 951, 83 S.Ct. 505, 9 L.Ed.2d 499 (1963) ( [T]he privilege extends essentially only to the substance of matters communicated to an attorney in professional confid ence. ). For a communication to be considered privileged, it cannot be intended for disclosure to third pa rties. See E.I. du Pont de Nemours , 351 Md. at 416, 718 A.2d at 1139. We have recognized, howev er, that disclosu re to third parties, or the presence of third parties during a commu nication, doe s not autom atically destroy the privileg e. See State v. Pra tt, 284 Md. 516, 520, 398 A.2d 421, 425-26 (1979) (holding that communications made to a psychiatrist in preparation for an insan ity defense are protected by attorne y-client privilege); Rubin v. State, 325 Md. 552, 568, 602 A.2d 677, 683-84 (1992) (declining to apply attorney-client privilege to communica tions to a private detective in attorney s employ where personal 16 relationship with the detective m otivated the comm unication). Friedman s Disclosure Under Rule 1.6 and the Attorney-Client Privilege Whereas the attorney-client privilege addresses com pelled disclosure of client secrets during judicial proceedings, client confidentiality under Rule 1.6 of the Professional Code relates to the attorney s general duty to maintain the confidentiality of all aspects of a client s representation. The attorn ey s duty to mainta in the confidentiality of a client s communications is set forth in the Maryland Rules of Professional Conduct [hereinafter MRPC ] R ule 1.6(a), which provides: A lawyer shall not reveal informatio n relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and exce pt as stated in paragraph (b). MRPC 1 .6(a). It is subject, however, to significant exceptions: (b) A lawyer may reveal such information to the extent the lawyer reason ably b eliev es ne cess ary: (1) to prevent th e client from committing a criminal or fraudulent act that the lawyer believes is likely to result in dea th or substantial bo dily harm or in substantial injury to the financial interests or property of another; (2) to rectify the consequences of a client s criminal or fraudulent act in the furtherance of which the lawyer s services were used. MR PC 1.6 (b). There is a subtle relatio nship between the confidentiality required under Rule 1.6 and the eviden tiary rule of the attor ney-clien t privileg e. See Parler & Wobber v. Miles & 17 Stockbridge, P.C., 359 Md. 671, 689, 756 A.2d 526, 536 (2000). The principle of confiden tiality is given eff ect in both bod ies of law. T he attorney-clien t privilege app lies in judicial and other proceedings in which an attorney may be called as a witness or otherwise required to produce evidence adverse to his client. See MRPC 1.6, cmt.; David A. Green, Lawyers as Tattletales : A Challenge to the Broad Application of the Attorney-Client Privilege and Rule 1.6, Confidentiality of Information, 20 Ga. St. U. L. Rev. 617, 621-22 (2004) [herein after G reen ]; Danie l R. Fisc hel, Lawyers and Co nfidentiality, 65 U. Chi. L. Rev. 1, 1 n.6 (1998 ). The rule of confidentiality embodied in Rule 1.6, however, applies in all other situations that d o not invo lve the com pulsion of law. MR PC 1.6, cm t.; see also In re Estate of Wood, 818 A.2d 568, 573 (Pa. Supe r. 2003); Inre Bryan, 61 P.3d 641, 656 (Kan. 2003) Rule 1.6 also is not limited to m atters comm unicated in confidence by the client but also to all information relating to the representation, whether obtained from the client or through the a ttorn ey s in dependent in vestigati on, M RPC 1.6, c mt., w here as the atto rneyclient privilege only protects co mmu nication s betw een the client an d the atto rney. See Harrison, 276 Md. at 135, 345 A.2d at 838 (requiring that the communication be made by the client for the attorney-client privilege to attach); Green, supra, at 622; Peters v. C ounty Comm n of Wood County , 519 S.E.2 d 179, 18 6 (W.V a. 1999). T herefore, R ule 1.6 proh ibits the disclosure of any information pertaining to the representation of a client, but does not operate to render inf ormation in admissible at a judicial proceeding. See Parler & Wobber, 359 Md. at 689-90, 756 A.2d at 536. Only communications subject to the attorney-client 18 privilege cannot be disclosed under judicial compulsion. In a case similar to the instant case, the Supreme Court of Massachusetts addressed the relationship between disclosure under a predecessor to Rule 1.6 and application of the attorney-client privilege in Purcell v. District Attorney for the Suffolk District, 676 N.E.2d 436 (Mass. 1998). In that case, a client of Jeffrey Purcell, an attorney employed by Greater Boston Legal Services, threatened to burn down an apartment building where recently the client had been employed. Id. at 437. Purcell determined that he sho uld advise a ppropriate authorities that [his client] might engage in conduct harmful to others, and informed the Boston police. Id. At the clien t s trial, the pro secutio n subp oenae d Purc ell to testif y. Id. at 438. Purcell then filed an action requesting that the Supreme Court determine whether attorney-c lient priv ilege pro hibited h is testifying . Id. In determining that a disclosure under DR 4-101(C)(3), 5 the disciplinary rule in effect prior to the adoption of Rule 1.6, did not make Purcell s testimony admissible, the court held that to permit such disclosures to the n be used against the c lient at trial would cause lawyers to be reluctant to c ome forw ard if they know that the infor mation the y disclose may lea d to adverse consequences to their clients. Id. at 440. Moreover, the court noted that the use of such disclosures could chill the free disco urse between the law yer and the client, thereby limiting the lawyer s abil ity to thwa rt threats i n the fu ture. Id. Thus, the court held that 5 Massac husetts DR 4-1 01(C)(3) p ermitted disc losure of a client s intention to comm it any crime. The Massachusetts Supreme Court determined that the result in that case wo uld have bee n the same if then-prop osed Ru le 1.6 were in effect. 19 disclosure to prevent future harm to others is not sufficient to overcome attorney-client privileg e. Id. at 440- 41. We agree with the Massachusetts Supreme Court that such disclosure is not sufficient to obviate the attorney-client privilege and admit the statements as evidence against the attorney s client, not only because of the chilling effect of the obverse, but also because it pits the a ttorn ey, as advocate and adviser, against the client, when the client is charged with a crime. To permit a Rule 1.6 disclosure to destroy the attorney-client privilege and empower the attorney to essen tially waive his clie nt s privilege w ithout the clien t s consent is repugnant to the entire purpose of the attorney-client privilege in promoting candor between attorney and client. M oreover, it w ould violate our duty to main tain the integrity of the legal profession. Attorney Grievance Comm n v. Gansler, 377 Md. 656, 701, 835 A.2d 548, 574 (2003). Therefore, we hold that Friedman s disclosure pursuant to Rule 1.6 of the Maryland Rules of Professional Conduct did not defeat Newman s assertion of th e atto rneyclient privilege. Communications Made with Landry in the Presence of Friedman The parties do n ot dispute that two statements made by Newman in the presence of Lan dry, about which Friedman testified, occurred during the existence of New man s attorney-client relationship with Friedma n or that the statements we re related to Newm an s divorce and custody dispute. They also do not dispute that New man retained Friedman to act in his capac ity as an attorney on her behalf . Rather, they div erge about the effect of 20 Landry s presence at sessions with Friedman during which she and Newman discussed kill[ing] Lars, Arlen [Slobodow] would be blamed, and then he would go to jail . . . planting eviden ce [of porno graphy] in [Slobo dow s] hous e. As we hav e observe d, generally the presence of a third party will destroy the a ttorn eyclient privileg e. See E.I. du Pont de Nemours , 351 Md. at 416, 718 A.2d at 1139. T he mere presence of a third party, however, does not constitute a waiver of the privilege per se. Because the attorney-clien t privilege is held and waive d by the client, our essential inquiry is whether the client reasonably understood the conference to be c onfidentia l notwithstanding the presence of third parties. Rosati v. Kuzman, 660 A.2d 263 , 266-67 (R.I. 1995), quoting Kevlik v. Goldstein , 724 F.2d 844, 849 (1st Cir. 1984) (emph asis in original). See also M CC ORMACK, E VIDENCE, §91 at 189 (2d ed. 19 72) (explaining that a m ere showing that the communication was from client to attorney does not suffice, but the circumstances indicating the intention of secrecy must appear ); Hearn v. Rhay, 68 F.R.D. 574, 579 (E.D. Wash. 1975) (noting that [t]he attorney-client privilege is limited to communications between the attorney and the client which are expressly intended to be confidential ); State v. Von Bulow, 475 A.2d 995, 1005 (R.I. 1984) (stating that the communica tion is privileged if expressly intended to be c onfidential). We find the analysis of the Supreme Court of Rhode Island in Rosati v. Kuzman, 660 A.2d 263 (R.I. 1995), to be persuasive on this point. In that case, the court analyzed whether the presence of a defendant s parents during communications between the attorney and their 21 son destroyed any attorney-client privilege. Id. at 266. Examining whether the son reasonab ly unders tood th e com munic ations to be con fidentia l, the court observed that his parents occupied a vital role in his defense. Id. at 267. They facilitated the son s relationship with the attorn ey, accepted other offers of assistance on their son s behalf, and acted as his confidants through a tense legal proceeding. Id. The court relied upon those facts to determine that the son unequivocally intended that the communications in question remain confid ential. Id. The fac t that the third pa rties were the defenda nt s parents played no part in the co urt s con clusion . The record in the case at bar indicates Newman s clear understanding that the communications made in the presence of Landry would remain confidential. Landry, as one of Newman s oldest and closest friends, accompanied Newman to Friedman s office in an attempt to keep things more . . . focused, . . . to ease the relationship between Friedman and Newman. Friedman testified that N ewman was distra ught ove r the possibility of losing custody of her children to their father. He further testified that h e in vited Marger y [La ndry] into the conversations [with Newman] because [he] wanted what [he] thought would be a cool head in the room. Later, due to the content of the conversations in his presence between Landry and Newman, Friedman stated, [T]hat is why I had to bar Margery from coming into my office. T hus, Friedm an exerted his control over Landry s presence through his ability to invite he r and als o exclu de her f rom the meetin gs. Newman s acquiescence in Friedman s suggestion that Landry facilitate his meetings 22 with her b y providing a cool head cannot reasonably be interpreted as amounting to a waiver of her privilege, as the State s uggests. A lthough L andry accom panied N ewman to Friedman s office, there is nothing in the record to show that New man suggested that Landry participate in her mee ting with Friedman, and Friedman s testimony indicates that the opposite is true. We h ave held th at [o]nly the clie nt has [the] p ower to waive th e atto rneyclient privilege. Parler & Wobber, 359 M d. at 691, 75 6 A.2d a t 537; see City of College Park v. Cotter, 309 Md. 573, 591, 525 A.2d 1059, 1067 (1987). Where th e third party is acting at the attorney s behest, as Landry did in the present case, the client s consent to the third party s continued presence does not constitute waiver of the privilege because the decision to include the third party was not made by the client, but rathe r by the atto rney. Therefore, Newman reasonably understood the communications in question to be confiden tial, and subject to the attorney-client privilege, because of Friedman s control over Land ry s prese nce du ring the ir meetin gs. Also, like Rosati s parents in Rosati v. Kuzman, supra, Landry acted as a source of support for Newman during divorce and custody proceedings which, according to all parties involved, were extremely contentious. She accompanied Newman to court proceedings, communicated directly with Friedman at Ne wman s direction, and ass isted New man in pursuing investigations of Newman s sons allegations of sexual abuse with the proper authorities. Thus, w e can disce rn no signif icant distinctio n between the circumstances of Rosati and the present case. Consequently, we find that Landry s presence during Newm an s 23 meetings with Friedman does not destroy Newman s attorney-client privilege. The Crime-Fraud Exception and Its Application The Court of Special Appeals found that Friedman s testimony about the content of his disclosure under MRPC Rule 1.6 was admissible under the crime-fraud exception to the attorney-client privilege. We disagree with the court s application of the exception. The Restatement (Third) of the Law Governing Lawyers defines the crime-fraud exception as: The attorney-client privilege does not apply to a communication occurring w hen a client: (a) consults a lawyer for the purpose, later accomplished, of obtaining assistance to engage in a crime or fraud or aiding a third person to do so, or (b) Regardless of a client s purpose at the time of consultation, uses the lawyer s advice or other services to engage in or assist a crime or fraud. Restatement (Third) of the Law Governing Lawyers, §82 (2000, 2004 Cum. Supp .). We have never exp licitly accepted the existence of a crime-fraud exception to the attorney-client privilege under Maryland law. Nevertheless, we agree with the Supreme Court s assessment that it would be an abuse of the privilege to permit the attorney-client privilege to extend to communications made for the purpose of getting advice for the commission of a fraud or a crime. United Sta tes v. Zolin, 491 U.S. 554, 563, 109 S.Ct. 2619, 2626, 105 L.Ed.2d 469, 485 (1989). Thus, we hold that the crime-fraud exception applies in Maryland to exempt communications seeking advice or aid in furtherance of a crime or fraud, from the 24 protection of the attorney-client privilege. In the present case, the State suggests that we should opine that a statement of intention to commit a crimina l or fraudu lent act is equiv alent to seek ing advice or aid in furtherance of committing that crime from an attorney, brings that utterance within the crimefraud exception to the attorney-client privilege. We decline to so opine and join our colleagues on both the federal and state levels who have required more than a mere statement of the intent to co mmit a crime or fr aud to trig ger the cr ime- frau d except ion to the attor neyclient privileg e. See e.g ., In re Richard Roe, 168 F.3d 69, 71-72 (1999) (stating that the use of an attorney s se rvices mu st be in furthe rance of a crime or fra ud for the e xception to apply); United States v. Chen, 99 F.3d 1495, 15 03 (9th C ir. 1996) (sam e); Haines v. Liggett Group Inc., 975 F.2d 81, 90 (3d Cir. 1992 ) (same); United Sta tes v. White, 887 F.2d 267, 271 (D.C. Cir.1989) ( It does not suffice that the communications may be related to a crime. To subject the attorney-client communications to disclosure, they must actually have been made with an intent to further an unlawful act. ); In re Murphy, 560 F.2d 326, 338 (8th Cir. 1987) (same); In re Grand Jury Investigation, 842 F.2d 1223 , 1226 (11th Cir. 1987) (sam e); In re International Systems & Controls Corporation Securities Litigation, 693 F.2d 1235, 1242 (5th Cir. 1982) (same); State v. Madden, 601 S.E.2d 25, 37 (W.Va. 2004) ( The crime-fraud exception comes into play when a prospective client seeks the assistance of an attorney in order to commit a crime or perpetrate a fraud on a third party or the court.); In re Pub lic Defender Service, 831 A.2d 890, 901 (D.C. 2003) (reasoning that to create a crime-fraud 25 exception that includes past statements made merely evidencing an intent to commit a crime or fraud, would un dermine the attorney s ability to discourage such a ctions); Purcell, 676 N.E.2d at 441 ( [T he crime-f raud] exce ption applie s only if the client or prospective client seeks advice or a ssistance in furtheran ce of crim inal condu ct. ); Lane v. Sharp Packaging Systems, Inc., 640 N.W.2d 788, 806 (Wis. 2000) ( The test for invoking the crime-fraud exception is whether there is reasonable cause to believe that the attorney s services were utilized in furtherance of the ongoing unlawful scheme. ), Hende rson v. State , 962 S.W.2d 544, 553 (Tex. Crim. App. 1997) ( [W]e cannot conclude that the crime-fraud exception can be satisfied by the mere pendency of ongoing crim inal activity or the mere threat of future activ ity. The attorney s services must be sought or used to further the activity in question. ); Kleinfeld v. State, 568 So.2d 937, 939-40 (Fla. Dist. Ct. App. 1990) (stating that Florida s crime-fraud exception required the client to seek the attorney s assistance in furthering the crime or fraud); In the Matter of Nackson, 555 A.2d 1101, 1105 (N.J. 1989) (observing that the crime-fraud exception only applied where the client consulted with the attorney to obtain aid in the com mission of a crime, to en able the clien t to avoid criminal prosecution, or to avoid lawful ser vice of pro cess); People v. Paasche, 525 N.W.2d 914, 917-18 (Mich. App. 1995) (stating that to establish the crime-fraud exception it must be shown that the communication was in further ance o f a crim inal or f raudul ent ente rprise), In re Marriage of Decker, 606 N.E.2d 1094, 1101 (Ill. 1992) (defining the crime -fraud exc eption as on ly applying to communications with attorney in furtherance of a crime or fraud). To permit the 26 mere statement of intent to defeat the attorney-client privilege would result in the exception swallowing the privilege. The Court of Special Appeals only addressed the application of the crime-fraud exception to the communications dis closed by Friedm an und er MR PC R ule 1.6. Newman v. State, 156 M d. App . at 48-4 9, 845 A .2d at 88 . There is nothing in the record indicating that Newman sough t advice or assistance in furtherance of a crime when she stated her intention to kill her husband and children.6 Friedman testified that he disclosed communications with New man in an attemp t to thwart her plans. Moreover, Friedman stated that Newman s threats were typical in hotly contested custody proceedings. The State relies upon Friedman s fear that he was in danger of becoming an accessory before the fact of murder if [he] didn t do something to show that New man con sulted with F riedman in furtherance of a future crime or fraud. Although it shows that Friedman viewed Ne wman s threats as serious, the testimony relied upon by the State does little more, and does not establish that New man con sulted with F riedman f or the purp ose of ob taining assistan ce in furtherance of a future crime or fraud. Therefore, the communication disclosed by Friedman pursua nt to M RPC Rule 1 .6 is not s ubject to the crim e-fraud excep tion and is privileg ed. Although the Court of Special A ppeals did not address the application of the crimefraud exception to the communications in Landry s presence, we will so do. The S tate relies 6 Because we find no evidence in the record indicating that Newman s communications were made in furtherance of a future crime or fraud, we need not address the burden of proof required to establish that the communication was in furtherance of a future crime or fraud. 27 upon Friedman s testimony that he felt that he was being sucked into their plan by Newman and Landry, and that they were bringing [him] into this relationship. Those statements do not evidence any intent to seek assistance in furtherance of a crime, but rather only show that Friedman was uncomfortable with the content of the communications. The State s position that N ewman solicited Fried man to ass ist her in her alleged scheme, or requested advice to accomplish it, is not supported in the record. Both the communication disclosed by Friedman pursuant to MRPC Rule 1.6 and the conversations held in the presen ce of L andry are privileg ed. Harmless Error We must then consider whether the error committed by the trial court was harmless beyond a reason able do ubt. See Dupree, 352 Md. at 332-33, 722 A.2d at 61 ; Dorsey v . State, 276 Md. 638, 646, 350 A.2d 665 (1976). Newman s convictions cannot stand unless, upon [our] own independent review of the record, [this Court] is able to conclude, beyond a reasonab le doubt, that the error in no way influenced the verdict. Dupree, 352 Md. at 333, 722 A.2 d at 61; Dorsey, 276 M d. at 659 , 350 A .2d at 67 8. We c annot s o conc lude. Although the State s other evidence established a close relationship between Newman and Landry, only Friedman s testimony connected Newman to Landry s attack on Slobodow and established the possible conspiracy. In light of the circumstantial nature of the State s case, we cannot conclude that the erroneous admission of Friedman s testimony was harmless beyond a reasonable doubt. Therefore, we hold that the adm ission of Friedman s 28 testimony in violation of Newman s attorney-client privilege was reversible error and we reverse the decision of the Court of Special Appeals with instructions to remand the case to the Circuit C ourt for M ontgom ery County for a new trial. 7 7 The appropriate procedure to determine whether the attorney-client privilege or one of its exceptions applies was not followed with respect to the admissibility of Friedman s testimony about Newman s communications in Landry s presence. First we note that the party seeking the protection of the privilege be ars the burden of establishing its existence. E.I. du Pont de Nemours, 351 Md. at 415, 718 A.2d at 1138; In re Criminal Investigation 1/242Q, 326 M d. at 11, 6 02 A.2 d at 122 5. Once the privilege is invoked, the trial court should make a preliminary inquiry and hear testimony relative thereto out of the presence of the jury, looking at the surrounding facts an d circum stances . Harrison, 276 Md. at 136, 345 A.2 d at 838; see Md. R ule 5-104(c) (providing that a hearing on preliminary matters be heard outside the presence of th e jury). In this p relim inary inqu iry, the trial court will decide as a matter of law whether the elements of the privilege are present and if so, whe ther the com municatio n, absent an exception , is privileged. E.I. du Pont de Nemours, 351 Md. at 415, 718 A.2d at 1138. This threshold question must be determined without requiring the disclosure of the communication at issue. Harrison, 276 Md. 136, 345 A.2d at 838; Md. Rule 5-104(a) (requiring strict application of the rules of evidence govern ing priv ilege). In interpreting Federal Rule of Evidence 104(a), upon which Maryland Rule 5-104(a) is based, the United States Supreme Court stated in Zolin that an in cam era review to determine whether the attorney-client privilege and /or the crime-fraud exception applied was permissible under Federal Rule of Evidence 104(a). 491 U.S. at 569, 109 S.Ct. at 2624, 105 L.Ed.2d at 482. It explained, however, that to be entitled to an in camera re view, the p arty opposing the privilege must present evidence sufficient to support a reasonable belief that [such] review may yield evidence that establishes the exceptions applicability. Id. at 574. The party opposing the application of the privilege may use any evidence, independent of the content of the privileged communication to present its prima fac ie case that the crime-fraud exception applied . At this point in the preliminary inquiry, the party opposing the privilege would be required to proffer evidence demonstrating that the communication at issue was made with the object of seeking as sistance in dire ctly furthering an ongoing or future crime or fraud. See Purcell, 676 N.E.2d at 440; In re Marriage of Decker, 606 N.E.2d at1101; Paasche, 525 N.W.2d at 917-18 ; Haines, 975 F.2d at 90; In re Grand Jury Investigation, 842 F.2d at 1226; In re International Systems & Controls Corporation Securities Litigation, 693 F.2d at124 2; In re Murphy, 560 F .2d at 33 8. We agree with the Supre me Cou rt that an in cam era hearin g is an appro priate 29 B. Admission of Detective Mercer s Testimony We shall, for the trial court s guidance, analyze the issues raised by Detective Mercer s testimony about Newman s Miranda warnings. Newman asserts that testimony by Detective Mercer that she was Mirandized and that her attorney was waiting for her at the police station is an indirect comment on her postMiranda silence because commenting on the presence of her attorney necessarily implicates the fact that Newman remained silent. As such, Newman argues that the trial court s curative instructio n was inadeq uate an d that he r Motio n for M istrial wa s impro perly den ied. The pertinent part of Detective Mercer s testimony is as follows: STATE: D id you advise her of her rights? DETE CTIVE MERC ER: Yes, sir. STATE: And what rights did you advise her of? DETECTIVE MERCER : That she had the right to remain silen t, she had the right to an attorney. At which time she advised that she would like to cons ult with an attorn ey. Actually, she had an attorney waiting in the station lobby for her. The United States Constitution and the Maryland Declaration of Rights guarantee the innocent and guilty alike the right to remain silent. See U.S. C ONST. amend. V (providing mechanism for determining the admissibility of allegedly privileged evidence during trial. Although the trial court held a pretrial hearing concerning Friedman s testimony about the communications disclosed under MRPC Rule 1.6, it failed to hold any proceeding outside the presence o f the jury to determ ine the adm issibility of Friedm an s testimo ny about the comm unicatio ns mad e in Lan dry s pres ence, w hich w ere first r eveale d at trial. 30 that [n]o person . . . shall be compelled in any criminal case to be a witness against himself ); Md. Const. Declaration of Rights, art. 22 ( That no man ought to be compelled to give evidence against himself in a criminal ca se ). 8 An inhe rent comp onent of th is guarantee is that one who invokes the privilege against self-incrimination shall remain free from advers e presu mption s surrou nding t he exe rcise of such rig ht. See Md. Code (1973, 2002 Repl. Vol.), §9-107 of the Courts and Judicial Proceedings Article (providing that [t]he failure of a d efendan t to testify in a criminal p roceeding on this basis d oes not crea te any presumption against him ); see Crosby v . State, 366 Md. 518, 528, 784 A.2d 1102, 1107 (2001); Younie v . State, 272 Md. 233, 244, 322 A.2d 21 1, 217 (19 74) (stating th at no pena lty shall flo w from the exe rcise of one s rig ht to rem ain silen t). Cognizant of the fundamental importance of the privilege against selfincrimination an essential pillar of our adversarial system the Supreme Court adopted certain procedu ral safegua rds to ensur e the protec tion of this right in the context of a custodial interrogation. Pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2 d 694 (1966), an individual in police custody must be warned, prior to any interrogation, that he has th e right to remain silent, that anything he says can be used against him in a court of law, and that he has the right to th e prese nce of an attorn ey. Id. at 479, 86 8 The Fifth Amendment is, of course, applicable to Maryland via the F ourteenth Amendment of the U.S. Con stitution. See Malloy v. Hogan, 378 U.S. 1, 6, 84 S.Ct. 1489, 1492, 1 2 L.Ed .2d 653 , 658 (1 964). 31 S.Ct. at 1630, 16 L.Ed.2d at 726. The viability of Miranda was reenforced in Dickerson v. United States, 530 U .S. 438 , 120 S .Ct. 232 6, 147 L .Ed.2d 405 (2 000). It is well establish ed that the prosec ution s use o f post-Miranda silence to obtain a conviction is a violation of the Fourteenth Amendment s guarantee of due process. Wainw right v. Gre enfield, 474 U.S. 284, 292, 106 S.Ct. 634, 639, 88 L.Ed.2d 623, 630-31 (1986); Doyle, 426 U.S. at 619, 96 S.Ct. at 2245, 49 L.Ed.2d at 98. A defendant s exercise of his right to remain silent includes his desire to remain silent until counsel has been consulted. Wainwright, 474 U.S. at 295 n.13, 106 S.Ct. at 640 n.13, 88 L.Ed.2d at 632 n.13. This Court has maintained that the right to remain silent has always been liberally construed in order to give fullest effect to this immunity. Crosby, 366 Md. at 527 n.8, 784 A.2d at 1107 n.8, quoting Allen v. State , 183 Md. 603, 607, 39 A.2d 820, 821 (1944). Not ably, we h ave p reviousl y interpreted Maryland s privilege against self-incrimination contained in Article 22 of the Maryland Declaration of Rights to be more comprehensive than that containe d in the fed eral Bill of R ights. Judge Eldridge, w riting for this Court in Hardaway v. State, 317 Md. 160, 161, 562 A.2d 1234 (1989), held that absent special circumstances, instructing a jury, over the defendant s objection, that the defendant has the constitutional right not to testify and that no adverse inference should be drawn from his election to remain silent, violated state common law and was reversible error. In so holding, this Court departed from Supreme Court jurisprudence which provides that the giving of a cautionary instruction over a defendant s objection does not violate his privilege against self- 32 incrimination. See Lakeside v. Oregon, 435 U.S. 333, 340-41, 98 S.Ct. 1091, 1095, 55 L.Ed.2d 319, 326 (1978). The predicate for this deviation, which effectively extends a defendant s constitutional protections, was our State s common law and the approach taken by this Court g enerally with respect to defe ndants rights a nd entitl emen ts in crim inal case s. Hardaway, 366 Md. at 168, 562 A.2d at 1238. We find that our conclusion in Hardaway is dispos itive of th e issue a t bar. In the present case, New man objected to the a dmission of De tective Mercer s testimony about Newman s exercise of her Fifth Amendment right to counsel, and by implication, the exercise of her Fifth Amen dment righ t against self-in crimination . The State also failed to proffer a le gitimate reason for eliciting the prejudicial testimony. Moreove r, Newman objected to the use of a curative instruction to counteract the prejudice that she had suffered. As we stated in Hardaway, It is unrealistic to assume that instructions on the right to silence always have a benign effect. Hardaway, 317 Md. at 166 n.3, 562 A.2d at 1236-37 n.3, quoting Lakeside v. Oregon, 435 U.S. at 345-48, 98 S.Ct. at 1098-99, 55 L.Ed.2d at __ (Stevens, J., dissenting). In cases, such as the one at bar, where the testimony regarding a defendant s exercise of the right to remain silent post-Miranda is elicited inadverten tly at best and intentionally at worst, the curative instruction is not sufficien t to overcome the prejudicial inferences. Therefore, we find that a curative instruction, given over the objection of the defendant, fails to cure the prejudice caused by testimony about the 33 post-Miranda exercise of the right against self-incrimination under the Fifth Am endmen t.9 III. Conclusion We hold that an attorney s discretionary disclosure of client communications under MRPC 1.6 does not obviate the client s ab ility to later successfu lly assert the attorney-client privilege. We also adopt the crime-fraud exception and require that the communications be made to an attorney seeking his assistance or aid in furtherance of an ongoing or future crime or fraud. Because n either disclosure under MRPC 1.6 or the crime-fraud exce ption destroys Newm an s privilege in the present case, Friedman s testimony about his communications with Newman was inadmissible. Therefore, we reverse the decision by the Court of Special Appea ls and rem and the ca se to the Circ uit Court fo r Montg omery Cou nty for a new trial. JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH DIRECTIONS TO VACATE THE JUDGMENT OF THE CIRCU IT COURT FOR MONTGOMERY COUNTY AND REMAND THE CASE TO THE CIRCUIT COURT FOR A NEW TRIAL. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY MONTGOMERY COUNTY. 9 In any event, the curative instruction issue should not again arise because the testimony is improper and should not be elicited in subsequent proceedings. 34 IN THE COURT OF APPEALS OF MARYLAND No. 31 September Term, 2004 ELSA NEWMAN v. STATE OF MARYLAND Bell, C.J. Wilner Cathell Harrell Battaglia Eldridge, John C. (Retired , Spe cially Assigned) Rodowsk y, Lawren ce F. (Retire d,Specially Assigned), JJ. Concurring and Dissenting Opinion by Harrell, J. Filed: December 13, 2004 For the reasons stated there, I join Judge Battaglia s opinion for the Court through and including its part II (A) (addressing attorney-client privilege ) and, thus, the judgmen t; however, I also join part B (effectiveness of curative instruction regarding testimonial allusion to pre-Miranda silence) of Ju dge Wiln er s dissent. In the Circu it Court for M ontgom ery County Case No. 94773 IN THE COURT OF APPEALS OF MARYLAND No. 31 September Term, 2004 ______________________________________ ELSA NEWMAN v. STATE OF MARYLAND ______________________________________ Bell, C.J. Wilner Cathell Harrell Battaglia Eldridge, John C. (Retired, Specially Assigned) Rodowsk y, Lawr ence F . (Retired , Specially Assigned), JJ. ______________________________________ Dissen ting Op inion b y Wilner, J ., which C athell and R odows ky, JJ., join ______________________________________ Filed: December 13, 2004 Since December 1999, Elsa Newman, a lawyer, had been involved in a contentious divorce action with her husband, Arlen Slobodow, that included both financial issues and custody of their two children, Lars and Herbie. The custody battle, fought in the courts of both the District of Columbia and Montgomery County, embodied claims by each party that the other had physically or sexually abused the children. On at least two occasions, Newman filed claims in the District accusing Slobodow of sexually abusing the children. One such compla int was investigated by the D .C. police and resolved as Unfound ed. The other, involving allegations of child pornography, was investigated by the FBI; it too was closed without action. In early 20 01, follow ing an app arent findin g by the District o f Colum bia court that Newman had abused or neglected the children, Slobodow was given custody of the children and Newman was limited to supervised visits. That arrangement was confirmed by the Circuit Co urt for Montg omery Cou nty in Septem ber, 2001. T rial with respe ct to per man ent custody w as sc heduled for J anuary 28 , 200 2 in M ontg ome ry County. Newman apparently decided not to wait, or to trust her luck to the judicial process. Instead, she arranged for her long-time girlfriend, M argery Landry, to break into Slobod ow s home during the dead of night, kill him, a nd leave b ehind pac kets of pornographic material as evidence that he had been sexually abusing his two sons. The fact that the children were also in the home and might be hurt or killed a s well did not seem to matter. Landry, indeed, attempted to carry out that plan and nearly succee ded in doin g so. At som e point in the early morning hours of January 7, 2002, while N ewm an w as co nvenien tly in N ew J erse y, Lan dry, dressed in black and wearing a ski mask and latex gloves, broke into Slobodow s home, assaulted Slobodow as he lay in bed, shot at him twice, wounding him once in the leg, beat him over the head with a telephon e, and attem pted to flee. W hen Slob odow a ttempted to reach another telephone to call for help, she assaulted him a second time and succeeded in escaping through a window, leaving behind a handgun with an obliterated serial number, an empty clip and two spent shell casings, a fa nny pack containing a box of nine millimeter ammunition, a pornog raphic vid eo tape, and pornographic magazines and books. Landry was arrested, charged with and pled guilty to assault, burglary, reckless endangerment, use of a handgun in the commission of a felony, and obliterating the serial number on a handgun, and senten ced to p rison fo r 53 years , with all b ut 20 yea rs suspe nded. In the belief that Landry s conduct was part of a conspiracy to affect the outcome of the pending custody case, the State charged Newman with conspiracy, attempted first degree murder, assault, burglary, and unlawful use of a handgun. On more than ample evidence, she was convicted on all counts and sentenced to life in prison, with all but 20 years suspended. The Court proposes to reverse those convictions and award Newman a new trial because it concludes that (1) certain threatening admissions made by Newman in the presence of her domestic relations attorney were inadmissible, and (2) a relatively innocuous statement by a detective th at was imm ediately dealt with by a fully adequate curative instruction was so prejudicial as to be beyond remedy other than b y declaring a m istrial. Both of th ose conc lusions, in m y view, are w rong, and I therefore re spectfully dissen t. -2- A. The Attorney s Testimony The State presented several categories of evidence against Newman. One concerned the events of J anuary 7 at Slo bodow s home; a second dealt w ith the close re lationship between Newman and Landry. The category at issue here involved statements made by Newman to various people during the divorce and custody litigation, some of which w ere recounted at trial by Newman s divorce lawyer, Stephen Friedman. In examining the issues raised by Newman regarding that testimony, some greater context than appears in the C ourt s opin ion is nec essa ry. Newman first employed Friedman in December, 1999, to represent her in her divorce case, which, as noted, came to include collateral abuse and neglect charges in both Maryland and the District of Columbia. In August, 2000, about three weeks before scheduled trial in the custody aspect of the divorce case, Newman fired Friedman. In January, 2001, she fired the lawyer she had retained to replace him and re-employed Mr. Friedman. During the first period of representation, Newm an became frien dly with Friedman s secretary, Sandra Ash ley. In Decemb er, 2000 after she had fired Friedman and before she rehired him Newman called Ms. Ashley and arranged to have dinner with her. During that dinner, she informed Ms. Ashley that she had p lans to m urder h er husb and. Specifically, she said that her friend La ndry had co nnections w ith the mob in Chicag o, that Lan dry was trying to obtain a gun from Chicago that was untraceable, and that she planned to dress all in black. -3- She said at the time that she intended to catch her husband on the street in Washington when the children were not with him and kill him. Ashley said that Newman seemed quite serious, even when warned about the consequences, and that Ashley took th e threat s eriously. After consulting with an attorney, however, Ms. Ashley decided not to report the matter to the authorities, but, in February, 2001, after Newman had rehired Friedman, she advised Friedm an of th e conv ersation in an e-m ail. Friedman received another e-mail in February regarding the same kind of threat, this one from his associate, Beth Rogers. Ms. Rogers had accompanied Newman to an FBI polygraph test, presumably in connection with her complaint that Slobodow was involved in child porno graphy. Wh en New man fa iled the test, Rogers reported that she said several times th at she w ould ki ll herself and the kids. At some po int, possibly in April, 2001, New man and La ndry were in Friedman s office. Newman often brought Landry to meetings with Friedman. Newman was upset because the District of Colu mbia cou rt had recen tly given custod y of the children to Slobodow. As Friedman was busy reading a report of some kind, Newm an and Land ry were conversing with one another. They were not talking to Friedman, and he was not part of the conversation. Newm an was talking to L andry about shooting Lars and framing Slobodow. They spoke about the need to do the deed personally and not to hire someone, to have an alibi, and to plant pornographic evidence in Slobodow s house so he would be blamed. Friedman said that he was trying not to listen to the conversation and asked them to stop. He -4- said that he did not take the conversation seriously at that point. That kind of conversation later occurred on ano ther occasion, whereu pon Friedman barred Landry from participating in his meetings with Newman. On August 31, 2001, Friedman met with Newman for several hours to prepare for a hearing set before Judge Ryan on September 4. The hearing was to be on some of the financial aspects of the divorce. Although, according to him, Newman was in a rage during the early part of the meeting, at some point she got quiet and thoughtful, and announced You k now, I do n t have to k ill both children . I only need to kill Lars because I can sav e Herb ie, and then Arlen will go to jail and get what he deserves because he is a criminal, and I can at least save Herbie. Friedman said that comments such as that had been made before, and he cautioned her that she could not involve him in a murder and that he had an obligation to tell the court when she [said] stuff like that. Newman responded that he was not allowed to repeat any of it and she would sue him if he did so. Friedman said that he was n ow con cerned tha t Newm an or Lan dry would k ill either Lars or Slobod ow, and that, after con sulting an ethics adviser and a psychologist, he concluded that he might be an access ory before the fact to murder. Not desiring to contact the authorities or Judge Ryan, he instead, on the mo rning of the hearing, cam e to court ea rly and consulted Judge Weinstein, the county administrative judge, who referred him to Judge Scrivener, the judge who headed the Family Division. Invoking Maryland Rule of Professional Conduct 1.6, Friedman recounted his concern s to her, including New man s -5- threat to kill Lars and blame Slobodow. He read to her the e-mail he had received from Ms. Rogers. Judge Sc rivener said that she w ould deal w ith the matter, following which Friedman reported to Judge R yan s courtroo m, prepare d to participate in the hearing. After discussing the matter with several of her colleagues, Judge Scrivener called Judg e Ryan, in the middle of the hearing, and informed him of what Frie dman ha d disclosed . Judge R yan returned to court and, on the record, recounted what Judge Scrivener had told him, namely, that Ms. Newman has told Mr. Friedm an and others that if she does not obtain custody of the children that she w ould ki ll the child ren rath er than e xpose them to the tortu re of M r. Slobo dow . . . and that she had hired a hitman to kill him, that is, to kill Mr. Slobodow. Judge Ryan concluded that Mr. Friedman was obliged to make that disclosure and permitted him to withdraw his appearance. In a prelimin ary proceeding before Judge Rupp, prior to the commencement of her criminal trial, New man obje cted to Fr iedm an s testif ying, claiming tha t her disclosu res to him were privileged. The prosecuto r responde d that, althoug h Friedm an was th en in court, he had not spoken with the prosecutors regarding Newman s statements, that the State had no intention of calling him as a witness, and that it desired only to put into evidence the transcript of the proceeding before Judge Ryan, which was a public record. Nonetheless, Friedman was called to testify at the preliminary proceeding with respect to the circumstances behind his disclosure to Jud ge Scrivener, so the court could rule on whether those disclosures, as revealed in the transcript of the proceeding b efore Judge R yan, were -6- protected by the privilege. After listening to that testimony, as recounted above, Judge Rupp, consistently with the rulin gs of Jud ges Ryan an d Scriven er, conclud ed that Friedman had acted re asonab ly and tha t he did what h e need ed to do under [ R]ule 1 .6. The relevant part of the transcript of proceedings before Judge Ryan on September 4 was placed into evidence as a Joint Exhibit, by stipulation. The prosecutor was concerned, however, that the transcript revealed, in substance, only what Judge Ryan said that Judge Scrivener had told him about what Friedman had told her regarding statements made by Newman, which w as ef fect ively q uadruple-lev el he arsa y. She changed her view and indicated her desire to s peak direc tly with Friedman and to call him as a witness. Friedman declined to speak with the prosecutor or to testify unless specifically ordered to do so. Judge Rupp, following his earlier ruling that the disclosure to Judge Scrivener was appropriate, entered an order to the effect that (1) Friedman was not precluded from disclosing to the prosecutor what he had disclosed to Judge Scrivener, and (2) Friedman, having been subpoenaed to testify, was req uired to do s o. In accord ance with that order, Friedman testified at trial and disclosed to the jury essentially what he had previously told Judge Scrivener. The Court recognizes that there are two legal precepts that need to be considered. The one actually invoke d by Friedm an is Ma ryland Rule o f Professio nal Cond uct 1.6. Sec tion (a) of that Rule effectively precludes a lawyer from revealing information relating to representation of a client u nless authorized by the client or by section (b) of the R ule. In -7- relevant part, § (b) authorizes a lawyer to reveal information to the extent that the lawyer reasonab ly believes necessary (1) to prevent the client from committing a criminal or fraudulent act that the lawyer be lieves is likely to resu lt in death or su bstantial bod ily harm. The other prece pt is the ancient common law attorney-client privilege that has been codified by reference in Maryland Code, § 9-108 of the Cts. & Jud. Proc. Article ( A person may not be compelled to testify in violation of the a ttorney-client privilege. ). The Court reco gnizes that th ere is a sub tle relationship b etween th e confide ntiality required under R ule 1.6 and the evidentiary rule of the attorney-client privilege in that [t]he principle of confidentiality is given effect in both bodies of law. The Court does not seem to take issue with the validity of Friedman s disclosures to Judg e Scriv ener un der Ru le 1.6 and thus, I assume, accepts Judge Sc rivener s, Judge Ryan s, and Ju dge Rupp s determinations that Friedm an acted p roperly under the Rule in making th e disclosure to Judge Scrivener. The Co urt thereby pres umably acce pts that Friedman reasonably believed that the disclosure was necessary to prevent Newman, or Landry from committing a criminal act likely to result in death or substantial bodily harm to another. Indeed, events showed rather remarkably the reasonableness of that belief. The Court then detaches the evidentiary privilege from the Rule and, relying principally on Purcell v. District Attorney for the Suffolk District, 676 N.E.2d 436 (Mass. 1997), concludes that, even if disclosure is appropriate under the Rule, the attorney may be prevented from making the same disclosure in court. Although I recognize that the Rule and -8- the evidentiary privilege are not identical in scope (see Parler & Wobber v. Miles & Stockbridge, 359 Md. 671, 688-93, 756 A.2d 526, 535-38 (2000)), but, with all due respect to the Supre me Jud icial Co urt of M assach usetts, I can discern no justification whatever for a holding that an attorney may, under Rule 1.6, properly disclose client communications, clearly intended to be confidential, to law enforcement or judicial authorities that almost certainly will resu lt in a criminal investigation of the client and may well result in criminal charges being filed against the client, but that, if such charges are brought, the attorney may be preclud ed from m aking the se lf-same dis closures in c ourt. Borrowing in part from the M assachusetts case, the Cou rt offers three reasons for such a distinction: (1) lawyers will be reluctant to make disclosures if they know that the information they disclo se may lea d to adv erse co nsequ ences to their clien ts, (2) permitting such disclo sures in court could chill the free discourse between the lawyer and the client, thereby limiting the law yer s ability to thwart th reats in the future, and (3) to allow the attorney to testify in court would, in effect, permit the attorney to waive the privilege that belongs to the client. None of those reasons can survive any critical analysis; indeed, at least the first two really make little sense. I cannot conceive, and the Court offers no explanation, of why a lawyer who believes that a disclosure is necessary to prevent death or serious bodily harm to another will feel free to make a disclosure under Rule 1.6, knowing that, as a result, his client w ill almost certain ly be the target of a criminal investigation, but will nonetheless be reluctant to make the -9- disclosure because h e/she may be called to testify in court. If there is any empirical evidence that lawyers hav e withheld disclosures th at are perm itted and oth erwise w ould be made under Rule 1.6 because of a fear that their client may be harmed if they ultimately are called to testif y, the Court has not cited it. I expect that the Court has not cited such evidence because it does not e xist. Similarly, the Court has cited no evidence, because I expect it does not exist, that free discourse between the lawyer and the client will somehow be chilled if the lawyer, who may properly sp ill the beans to law enforcement authorities under the Rule, is also free to te stify in court. The third reason offered is equally baseless. The evidentiary privilege always remains with the client, but the privilege is not absolute and has never been regarded as absolute. There are exceptions to it, and when those exceptions apply, the client s privilege is either lost or di minish ed. The only issue in this reg ard is whether the crime/f raud exc eption em bodied in R ule 1.6 should be recognized as well under the evidentiary privilege, and I can see no reason why it should not be. The exception for disclosures relating to threats of death or ser ious bodily injury is based on supervening public policy the determination by the American Bar Association, which initially drafted and approved Rule 1.6, and by the State Supreme Courts, including this Co urt, that have also approved and actually promulgated the Rule that the general rule of confidentiality needs to bend in that circumstance. That public policy has equal force with respect to the testimonial privilege. Yes, it can be terribly disadvantageous -10- to a client to have his/her lawyer disclose in court, or before some other tribunal, that the client threatened to kill or seriously injure a particular victim and that the threat was credible, but that is no more disadvantageous than permitting the lawyer to disclose that information to law enforcement authorities with a view toward commencing and pursuing a criminal investigation against the client. Drawing the distinction that the Court proposes to draw simply muddles the law, gives no clear guidance to lawyers in a most difficult area that cries out for consistency, and achieves no counterbalancing useful objective. Apart from that, the Court fails to give appropriate consideration to just what was presented to the jury. Ms. Ashley s testimony was clearly not protected b y any at torneyclient privilege. Frie dman s te stimony regarding the conversation between Newman and Landry that occurre d in April, 200 1 also, in my view, was not protected by the testimonial privilege, and, indeed, the Court s conclusion to the contrary is inconsistent with its own definition of the privilege. Friedman was not testifying as to communications made by Newman to him, but as to a conversation between Newman and Landry that he simply overheard. The Court defines the testimonial privilege as a rule that prevents the disclosure of a confide ntial comm unication m ade by a client to his attorney for the purpose of obtaining legal advice. (Emph asis added ). The Co urt either ove rlooks or ign ores the fac t that the communications made at that April, 2001 meeting were not of that kind. The Court s opinion, I am sorry to say, is flawed both legally and factually and espou ses a vie w that m akes little sense. -11- B. Post-Miranda Silence On August 1, 2002, the fourth day of trial, the State called Detective Susan Mercer to testify. Detective Mercer responded to the Slobodow home following the report of a shooting and wa s the lead inv estigator in the case. She te stified first abo ut the arrest of Landry and the various injuries noted on Landry s hand and finger. She then was asked about her first contact with Newman, upon her arrest on January 10. This was the relevant collo quy: Q And did you have any conversation with Ms. Newman? A Yes. Q Okay. Did you advise her of her rights? A Yes, sir. Q And what rights did you advise her of? A That she had the right to remain silent, she had the right to an attorney. At which time she advised that she would like -12- to consult with an attorney. Actually, she had an attorney waiting in the station lobby for her. Newman immedia tely moved for a mistrial based on the Detective s volunteered statement regard ing Ne wma n s dec ision to c onsult a n attorn ey. The court recognized the error but concluded that a mistrial was not necessary and instead gave the following curative instruction: You have heard testimony that Elsa Newman was accompanied by an attorney when she appeared at the police station on January 10, 2002. This is not evidence to be consid ered by you. M s. Newm an is presumed to be innocent of the charges against her. You have heard evidence that Ms. Newman s x-husband, Arlen Slobodow was shot on January 7, 2002. Ms. Newman s house was searched following the shooting. She was aware of this on January 10, 2002. It is fully consistent with the presumption of innocence that anyone under these circumstances would appear and consult with an attorney at the police s tation to protect h is or her i nterests . We have always accorded trial judges wide discretion in ruling on motions for mistrial. They are in the best position to determine whether an error, especially an evidentiary error, is so dramatically prejudicial as to require a mistrial to be beyond remedy by a curative instruction. Only in the rarest instances have we second-g uessed a trial judge s determination in that regard. Citing cases that are wholly inapposite, the Court holds, as a matter of law, that the brief, unsolicited remark by D etective M ercer is of that character. To -13- me, that is utter nonsense. Yes, it was error. That is not the point. The point, rather, is that this brief, unsolicited remark was immediately corrected by a clear and responsive curative instruction, that it occurred on the fourth day of trial, and that the overall evidence against Newman was m ore than abund ant, if no t, in fact, o verwh elming . There is simply no rational basis for concluding that Detective Mercer s remark so thoroughly and uncorrectably tainted the trial that a mistrial was required as a matter of law. We have allowed far more grievous errors to be co rrected by curativ e instruc tions. But for Judge Harrell s co ncurrence in this part of the dissent, which deprives the Court s opinion on this issue of any precedential value, its purported ruling would sow nothing but confusion; it could not be cabined to just remarks about post-Miranda silence. Every error that creeps into a trial would become the subject of a motion for mistrial, and trial judges would be acting at their peril if they did not grant the mo tion. For these re asons, I wo uld affirm the judgm ent of the C ircuit Court. Judge Cathell and Judge Rodowsky authorize me to state that they join in this disse nt. -14-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
