Doss v Commonwealth

VIRGINIA: IN THE CIRCUIT COURT OF THE CITY OF NORFOLK

JERMAINE DOSS, Petitioner Docket No.: CR99004997 (Court of Appeals Record

v.

No. 0303-06-1) COl\路lMONWEALTH OF VIRGINIA, Respondent.

ORDER The petitioner has filed a "Motion to Strike Privileged Testimony and Grant a New Hearing" based upon the Court's receipt of the testimony of Michael F. Fasanaro,jr., Esq. about his conversations with his former client, Nathaniel McGee, the principal witness for the petitioner. In his motion the petitioner rightly notes that iYfcGee was never asked whether he wished to waive the attorney-clien t privilege concerning his conversations with Mr. Fasanaro.

The law is well settled that the privilege belongs to the client and not

to

the

attorney. Commonwealth v. Edwards, 235 Va. 499, 509, 370 S.E. 2d 296, 301 (1988).

In discussing who may claim [he privilege, Professor \'V'igmore wrote: But it is as client, not aJparty to the cause, that he is entitled; for the reason of the privilege applies to all clients as such, whether or not they are parties when the disclosure is sought from them. Hence, the privilege equally forbids disclosure by the attorney of a client not in any way concerned in the cause. Conversely, when the client is not a party, then on general principles ... the party cannot invoke the privilege, and, if the privilege is erroneously refused, the party cannot appeal on the ground of this error.

8 Wigmore, Evidence, ยง2321 at 629 (lvIcNaughton rev. 1961).

Dean McCormick had a very practical approach to dealing with invocations of the privilege where the client was not a party to the proceeding. He noted that the privilege could be called to the Court's attention by anyone present, such as a party in the case or the Court itself. No one did so at the hearing in this case. He also wrote: [TJhe erroneous denial of the privilege can only be complained of by the client whose privilege has been infringed. This opens the door to appellate review by the client if he is also a party and suffers adverse judgment. If he is not a party, the losing party in the cause, by the better view is without recourse. Relevant, competent testimony has come in, and the privilege was not created for his benefit.

IYIcCormick on Evidence, ยง92 at 193 (2 nu ed. 1972). The motion is DENIED. Endorsements are waived pursuant to Rule 1:13.

The Clerk shall send copies of this order to counsel for the parties and to Michael F. Fasanaro, Jr.

Enter: November 9, 2006