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Hitch v. Pima County Superior Court, 146 Ariz. 588, 708 P.2d 72, 54 USLW 2242

Facts

The defendant was indicted for first-degree murder and was awaiting trial. During the investigation, the police learned from the defendant's girlfriend that a wristwatch, potentially linked to the victim, was found in the defendant's jacket. The defendant's attorney took possession of the watch to examine it and prevent its destruction. The attorney later sought guidance from the Ethics Committee of the Arizona State Bar, which advised him to turn over the watch to the state.

The essential facts are not in dispute. Defendant was indicted for first degree murder and is currently awaiting trial on that charge. In the course of their investigation, the police interviewed defendant's girlfriend, Diane Heaton, who told them that the victim was in possession of a certain wristwatch shortly before his death.

Issue

1. Does a defense attorney have an obligation to turn over to the state potentially inculpatory, physical evidence obtained from a third party? 2. If so, in what manner may this be done? 3. Must he then withdraw as attorney for the defendant?

We must decide three questions: 1. Does a defense attorney have an obligation to turn over to the state potentially inculpatory, physical evidence obtained from a third party? 2. If so, in what manner may this be done? 3. Must he then withdraw as attorney for the defendant?

Rule

An attorney has an obligation to turn over physical evidence obtained from third parties if there is a reasonable belief that the evidence may be destroyed. The attorney may return the evidence to the source if it is believed it will not be destroyed, but must disclose it to the prosecution if there is a risk of destruction.

We agree with defendant that any requirement that the defendant's attorney turn over to the prosecutor physical evidence which may aid in the conviction of the defendant may harm the attorney-client relationship.

Analysis

The court applied the rule by determining that the attorney had a reasonable fear that the evidence might be destroyed if not taken into possession. Since the evidence was obtained from a non-client third party, the attorney was obligated to disclose it to the prosecution. The court also noted that if the defense and prosecution could agree on the chain of possession without implicating the attorney's role, there would be no need for the attorney to withdraw.

Applying this test to the instant facts, the trial court was correct in ordering the wristwatch to be turned over to the state.

Conclusion

The court affirmed the order requiring the attorney to disclose the evidence to the prosecution but reversed the order requiring the attorney to withdraw from the case. The matter was remanded for further proceedings consistent with this opinion.

The order requiring disclosure is affirmed and the order requiring defendant's attorney to withdraw is reversed.

Who won?

The state prevailed in the requirement for the attorney to disclose the evidence because the court found that the attorney had an obligation to do so to prevent potential destruction of evidence.

Relief granted in part, denied in part and remanded.

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