United States v. Zolin 491 U.S. 554, 109 S.Ct. 2619, 105 L.Ed.2d 469 (1989)
The IRS was investigating the Church of Scientology for tax fraud.
As part of the investigation, they obtained tape
recordings of meetings between the Church and legal counsel. They
attempted to introduce these recordings into evidence.
The Church objected on the grounds that the recordings
were inadmissible because they were covered by the attorney-client
The IRS claimed that the tapes fell under the crime-fraud
exception to attorney-client privilege.
The crime-fraud exception says that here is no attorney-client
privilege if the services of the lawyer were obtained to enable
anyone to commit or plan to commit a crime or a fraud.
The Trial Judge found the evidence inadmissible without
listening to the tapes. The IRS asked for the tapes to be listened to in
camera, but the judge declined. The IRS appealed.
The IRS argued that the judge couldn't make a judgment
unless he heard the tapes.
The church argued that examination of the evidence, even
by the judge alone, would compromise the security that the attorney-client
privilege is designed to protect.
In camera is when a hearing is held before the
judge in their private chambers or when the public is excluded from the
courtroom, usually to protect a witness. However, an official record is made
of the proceeding, typically by a court stenographer.
The Appellate Court affirmed, but for different reasons.
The Appellate Court found that under FRE 104(a),
you can't look at evidence which may be privileged to determine if it is
privileged. You would have to have independent evidence that the
evidence is not privileged before you can even listen to it.
The US Supreme Court reversed and remanded.
The US Supreme Court found that that in camera
inspection is a smaller intrusion into attorney-client privilege
than in court testimony. Therefore, a lesser evidentiary showing is
needed to overcome the privilege.
This overturned the Appellate Court's argument that
required independent evidence.
The Court found that the criteria for whether the attorney-client
privilege should be overcome is not a stringent one, and should be
left to the discretion of the Trial Judge.
FRE 501 says that the privileges of witnesses
should be governed by the principles of the common law and interpreted
in the light of reason and experience.
The Court remanded the case back to the Appellate Court
to determine if the IRS presented a sufficient evidentiary basis for an in
camera review, and if the Trial Judge acted within his discretion in
finding the evidence inadmissible.