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28. The motion should be
Thereafter, the prosecution undertook an investigation of the defendant's possible involvement in other acts of embezzlement. The consultant was subpoenaed to testify before a grand jury. The consultant refused to answer any questions concerning her conversation with the defendant. The prosecution has moved for an order requiring her to answer those questions.
A defendant entered a guilty plea to a charge of embezzlement. Her attorney hired a retired probation officer as a consultant to gather information for the preparation of a sentencing plan for the defendant that would avoid jail. For that purpose, the consultant interviewed the defendant for three hours.
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A is correct. The consultant obtained confidential information gathered at the direction of the defendant's attorney and in the preparation for a criminal case and is thus privileged; attorney-client privilege extends to representatives of the attorney (directed by or employed by the attorney). The consultant cannot be ordered to divulge privileged information absent a valid waiver from the defendant.
B is incorrect. This answer reaches the correct answer with the wrong reasoning. The prosecutor's motion should be denied based on attorney-client privilege, which extends to the consultant hired by the attorney. Furthermore, there is no requirement that probable cause exists in order to believe the evidence is relevant before the inquiry can be made before the grand jury.
C is incorrect. As explained above, the attorney-client privilege extends beyond just the attorney to include any representatives of the attorney that receive confidential information in preparation for the case. Thus, the fact that the consultant was not an attorney does not bar the privilege from applying.
D is incorrect. Although some evidentiary rules do not apply during grand jury proceedings, the attorney-client privilege does apply. The attorney-client privilege carries fewer exceptions than any other privilege and covers any communications between a client (or potential client) and the attorney or her representatives.