In State v. Pena Fuentes, the State Supreme Court again condemned “the odious practice of eavesdropping on privileged communication between attorney and client” in criminal matters, as it had previously done in State v. Cory, 62 Wn.2d 371, 382 P.2d 1019 (1963). Though the Cory court held that such misconduct is presumably prejudicial, in Pena Fuentes the court further held that the presumption is rebuttable if the State can prove the absence of prejudice beyond a reasonable doubt.
In 2008 defendant Jorge Nahun Pena Fuentes was charged with first degree rape of a child, three counts of first degree child molestation, and three counts of second degree child molestation following accusations made against him by his stepdaughter. During his trial, Pena Fuentes attempted to introduce a letter written to him by his biological daughter that described her belief that his stepdaughter was lying. The trial court only permitted the letter’s use for impeachment purposes and not for the truth of the matter asserted within the letter.
After a jury convicted Pena Fuentes of three of the seven counts, his current wife and brother-in-law approached Pena Fuentes’s biological daughter with a video camera and asked if she could clarify her trial testimony. Pena Fuentes’s biological daughter then appeared to recant her trial testimony and stated that she heard Pena Fuentes’s stepdaughter plotting to accuse him of sexual assault. Pena Fuentes’s biological daughter later claimed that she submitted to the videotaped interview under duress, that she was scared of Pena Fuentes’s wife and brother-in-law, and that everything she stated in the video were lies.
In late 2010, upon learning of Pena Fuentes’s wife and brother-in-law’s visit to his biological daughter, the prosecutor asked a detective to listen to Pena Fuentes’s phone calls from jail to investigate possible witness tampering. In early 2011, the detective informed the prosecutor that he listed to all of Pena Fuentes’s phone calls, including six conversations between Pena Fuentes and his attorney. The prosecutor immediately pulled the detective from the witness tampering investigation, stopped all call monitoring, and instructed the detective not to disclose the contents of the privileged conversations to anyone. The prosecutor then submitted a declaration stating the detective did not disclose the content of the privileged conversations to him.
Pena Fuentes moved to dismiss all charges based on the eavesdropping, which the trial court denied, concluding that while the misconduct was “egregious,” it did not affect the trial or post-trial motions. The trial court also denied Pena Fuentes’s request for additional discovery concerning the eavesdropping. The trial court’s decisions were affirmed on appeal.
In a unanimous decision, the State Supreme Court reversed. The court first followed the United States Supreme Court’s reasoning in Weatherford v. Bursey, 429 U.S. 545, 97 S. Ct. 837, 51 L. Ed. 2d 30 (1977), which expressly rejected a rule that eavesdropping is prejudicial per se, particularly when the eavesdropper did not communicate the overheard conversations to anyone else. The court then held that the presumption of prejudice is rebuttable, but that the State bears the burden to prove that the defendant was not prejudiced beyond a reasonable doubt. Since the record was unclear as to what standard the trial court used when evaluating Pena Fuentes’s prejudice claims relating to the eavesdropping, the court remanded for the trial court to evaluate whether the State met its burden, and also to allow the defendant to conduct additional discovery surrounding the eavesdropping. The court appeared concerned that the State prepared the detective’s declaration in support of its posttrial motions only two days after the detective received tapes containing the recorded conversations between Pena Fuentes and his attorney.