Since 1966, when criminal defense lawyer Richard Ryder was disciplined for retaining physical evidence that connected his client to a bank robbery, lawyers and courts have struggled with the ethical dilemma of how defense lawyers should deal with physical evidence that potentially incriminates one of their clients. When a lawyer takes possession of an evidentiary item, must she always turn it over to the authorities, as required by most courts that have addressed this dilemma? Or, can defense counsel return the evidence to the source from whom counsel received it as recommended by Standard 4-4.6 of the ABA Criminal Justice Standards for Prosecution and Defense Functions? This article explores three scenarios that present variations of the physical evidence conundrum and explores the extent to which existing authority provides clear guidance when lawyers find themselves wrestling with a physical evidence quandary. The article concludes that Standard 4-4.6’s more nuanced return-to-the-source rule strikes a better balance between defense counsel’s duty as an officer of the court and her duties as a zealous advocate than the mandatory turnover rule championed by most courts and by section 119 of Restatement (Third) of the Laws Governing Lawyers. Finally, the article urges those revising Standard 4-4.6 to retain its basic approach, but to address some of the weaknesses of the Standard.
Rodney J. Uphoff, The Physical Evidence Dilemma: Does ABA Standard 4-4.6 Offer Appropriate Guidance?, 62 Hastings L.J. 1177 (2011)