United States v. Zolin
491 U.S. 554, 109 S.Ct. 2619, 105 L.Ed.2d 469 (1989)

  • The IRS was investigating the Church of Scientology for tax fraud.
  • As part of the investigation, they obtained tape recordings of meetings between the Church and legal counsel.  They attempted to introduce these recordings into evidence.
    • The Church objected on the grounds that the recordings were inadmissible because they were covered by the attorney-client privilege.
    • The IRS claimed that the tapes fell under the crime-fraud exception to attorney-client privilege.
      • The crime-fraud exception says that here is no attorney-client privilege if the services of the lawyer were obtained to enable anyone to commit or plan to commit a crime or a fraud.
  • The Trial Judge found the evidence inadmissible without listening to the tapes.  The IRS asked for the tapes to be listened to in camera, but the judge declined.  The IRS appealed.
    • The IRS argued that the judge couldn’t make a judgment unless he heard the tapes.
    • The church argued that examination of the evidence, even by the judge alone, would compromise the security that the attorney-client privilege is designed to protect.
    • In camera is when a hearing is held before the judge in their private chambers or when the public is excluded from the courtroom, usually to protect a witness.  However, an official record is made of the proceeding, typically by a court stenographer.
  • The Appellate Court affirmed, but for different reasons.  IRS appealed.
    • The Appellate Court found that under FRE 104(a), you can’t look at evidence which may be privileged to determine if it is privileged.  You would have to have independent evidence that the evidence is not privileged before you can even listen to it.
  • The US Supreme Court reversed and remanded.
    • The US Supreme Court found that that in camera inspection is a smaller intrusion into attorney-client privilege than in court testimony.  Therefore, a lesser evidentiary showing is needed to overcome the privilege.
      • This overturned the Appellate Court’s argument that required independent evidence.
    • The Court found that the criteria for whether the attorney-client privilege should be overcome is not a stringent one, and should be left to the discretion of the Trial Judge.
      • FRE 501 says that the privileges of witnesses should be governed by the principles of the common law and interpreted in the light of reason and experience.
    • The Court remanded the case back to the Appellate Court to determine if the IRS presented a sufficient evidentiary basis for an in camera review, and if the Trial Judge acted within his discretion in finding the evidence inadmissible.