STATE v. PATRICK LENARZ, SC 18561

Judicial District of Hartford at G.A. 12

     Criminal; Right to Counsel; Expert Testimony; Whether Prosecutor's Examination of Documents Covered by the Defendant's Attorney-Client Privilege Constituted a Per Se Violation of the Defendant's Right to Counsel; Whether Court Should Have Admitted Expert Testimony Regarding the Proper Protocol for Interviewing Child Victims of Sexual Abuse.  The defendant, a karate school instructor, was charged with fourth degree sexual assault and risk of injury to a child based on allegations that he had sexually assaulted two young girls who attended classes at the karate school.  Subsequently, the police executed a search warrant for the defendant's home and seized a computer.  A search of the computer conducted by the state's forensic lab uncovered certain documents that were  turned over to the police and the prosecutor.  Contending that the documents retrieved from the computer were covered by the attorney-client privilege, the defendant filed a motion to dismiss, arguing that the only remedy for the state's intentional violation of his sixth amendment right to counsel was dismissal of the charges.  Although it agreed that the documents were covered by the attorney-client privilege, the trial court nevertheless denied the motion to dismiss, ruling that the defendant failed to establish a sixth amendment violation because he failed to show that he was prejudiced by the publication of the privileged documents.  Before trial, the defendant disclosed that Dr. Melvin Guyer would testify as an expert regarding the proper protocol for interviewing child complainants of sexual abuse.  He maintained that such testimony would assist the jury in evaluating the credibility of the child accusers.  The trial court sustained the state's objection to Guyer's testimony, ruling that it was well established that an expert witness may not testify regarding the credibility of an accuser or accusers.  The jury ultimately found the defendant guilty of one count of risk of injury to a child, and the defendant appealed.  Subsequently, upon the defendant's motion, the trial court issued an articulation, in which it stated that it rejected the defendant's sixth amendment claim as to the prosecutor, as opposed to the police, because the defendant failed to introduce sufficient evidence to establish receipt, review or dissemination of the privileged documents by the prosecutor and also failed to establish any prejudice resulting therefrom.  On appeal, the defendant claims that, because the prosecutor continued to read the documents even after discovering that they contained privileged attorney-client communications, the prosecutor's conduct necessarily constituted an intentional intrusion upon the privileged material.  He further maintains that, where a prosecutor intentionally intrudes upon such material, the intrusion constitutes a per se violation of the sixth amendment right to counsel, and no showing of prejudice is required.  Additionally, the defendant claims that the trial court improperly precluded Guyer's expert testimony.