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SSRN

Vol. 104

The Attorney‑Client Privilege, Client Confessions and Wrongful Convictions: Immunity as a Statutory Solution

Richard E. Myers II, Henry Brandis Distinguished Professor of Law, University of North Carolina School of Law, rmyers@email.unc.edu.

1 Jan 2018

Attorneys face a serious personal dilemma when a client confesses that he or she committed the crime for which someone else has been wrongfully convicted. If they do nothing, a wrongful conviction stands. If they come forward, their client faces the prospect of a new criminal conviction. Professional ethics require them to maintain all privileges and may lead them to counsel their client to remain silent, notwithstanding manifest injustice. This Essay proposes a statutory solution: states should create a procedure for in camera, ex parte review of the confession by the judge in the court of conviction or appropriate appellate body. In cases where the confession is sufficiently credible, the court would authorize immunity for the confessing client and forward the confession to the convicted individual’s counsel to be used in motions for appropriate relief.

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