'Waiver' Raised to the Second Power: Waivers of Evidentiary Privileges by Lawyers Representing Accused Being Tried in Absentia

Abstract

This article addresses an issue posed in United States v. Marcum, 2004 CAAF LEXIS 832 (U.S.C.A.A.F., Aug. 23, 2004). The question presented is whether a defense counsel representing an accused being tried in absentia may waive an evidentiary privilege held by the accused. Admittedly, fact situations such as Marcum are rare. However, Marcum raises two, much broader issues. One is the extent of an attorney's implied-in-law authority to waive a privilege held by a client. The other, deeper issue is the test for forfeiture of an accused's constitutional rights. Unfortunately, little has been written on that subject. However, in 1977 Professor Westen proposed a test for forfeiture (Westen, Away from Waiver: A Rationale for the Forfeiture of Constitutional Rights in Criminal Procedure, 73 MICH.L.REV. 1214 (1977)). In this effect, this article resurrects Professor Westen's proposal. We believe that the analysis in the article demonstrates both the soundness and the utility of the proposed test.