Interview Notes Not Subject To Grand Jury Subpoena

The Supreme Court of Missouri recently issued an opinion regarding a grand jury subpoena for the transcript of a witness interview conducted by a criminal defense attorney of his client’s son. The court held as follows:

Overview: A grand jury subpoenaed the transcript of an interview a criminal defense attorney conducted, in preparation for litigation, of the older son of the attorney’s client, a person of interest in the grand jury’s investigation. In a 6-0 decision written by Judge Patricia Breckenridge, the Supreme Court of Missouri holds that the circuit court is prohibited from compelling the attorney to produce the transcript to the grand jury. The transcript of a recorded interview of a person taken in anticipation of litigation is not discoverable by a grand jury subpoena unless substantial need and undue hardship are shown, and here, the grand jury failed to make such a showing.

Facts: In June 2003, a man notified St. Louis police that someone stole his parked vehicle with his younger son – a 10-year-old disabled child – inside. The police recovered the vehicle but did not find the boy, whose fate remains unknown. The police subsequently interviewed the man’s older son and the man, who invoked his constitutional right to remain silent. The man hired attorney John Rogers to represent him in connection with possible charges arising out of the disappearance of the man’s younger son. In March 2007, acting on behalf of his client, Rogers took a sworn statement from the older son, and a stenographer transcribed the statement. The client is a person of interest in a St. Louis County grand jury investigation of the younger son’s disappearance. The grand jury subpoenaed Rogers, directing him to appear and produce a copy of the older son’s statement. Rogers filed a motion to quash the subpoena on the ground that producing the statement would require disclosure of attorney work product and that its disclosure would be unreasonable and oppressive, alleging the prosecution showed no need for the statement. After a hearing in chambers, the circuit court overruled the motion to quash, finding the transcript did not constitute attorney work product because it did not contain counsel’s opinions, theories or conclusions. Rogers seeks relief from this Court.

The court’s opinion is linked here. (Mike Frisch)