Physical Observations Not Protected by "Probation Agent/Client Relationship"

We often hear about violations of attorney/client privilege, doctor/patient privilege, and priest/penitent privilege.  It's rare, then, that we see a court opinion centering on a statutory privilege between a probation agent and the criminal on probation.  In Hutto v. State, filed last Monday, the South Carolina Supreme Court considered just that.

In the process of burglarizing a 91-year-old woman's home and raping her, Hutto received several cuts on his arms and hands from broken glass.  A month later during a routine visit, Hutto's probation agent noticed the cuts.  The probation agent then relayed the information about the cuts to an investigator, which eventually resulted in Hutto being identified in a lineup.  At trial, the probation agent testified about the cuts on Hutto's arms and hands, and Hutto was convicted of burglary and criminal sexual conduct.

Hutto later applied for post-conviction relief, arguing that his trial counsel was ineffective.  Hutto cited S.C. Code Section 24-21-290, which states: "All information and data obtained in the discharge of his official duty by a probation agent is privileged information, is not receivable as evidence in a court, and may not be disclosed directly or indirectly to anyone other than the judge or others entitled under this chapter to receive reports unless ordered by the court or the director."  Hutto's PCR argument was that, based on the statute, his trial attorney should have moved to suppress the agent's statement, as it was gained from privileged information disclosed by Hutto's probation agent.  The PCR application was denied, and Hutto appealed.  The Court of Appeals affirmed, and Hutto appealed to the Supreme Court.

The Supreme Court again affirmed the PCR court, holding that the probation agent's testimony should not have been suppressed, and thus there was no ineffective assistance of counsel.  Writing for the Court, Chief Justice Toal in a one-paragraph explanation reasoned that "the statute's purpose is to foster open lines of communication between the probation agent and client," and that the statute was not intended to encompass physical observations such as the probation agent noticing Hutto's cuts.  The Chief Justice continued that "anyone could have [noticed the cuts] when encountering [Hutto]."

To me, however, this fails to explain the Court's decision to avoid the plain, straightforward, and unambiguous language of the statute.  The statute bars the disclosure of "all information and data" unless it is specifically authorized or ordered otherwise.  The Court's reasoning is that interpreting the statute as literally written would prevent a probation agent from ever disclosing evidence of crimes.  The statute itself clearly rebuts this reasoning, since disclosure is allowed as long as it is ordered or authorized.  Certainly if there is clear evidence that a criminal on probation has committed another crime, the probation agent would petition a judge or court to allow disclosure of the fact.

 Justice Pleicones dissented, pointing out the plain language of the statute as well as the statute's inclusion of a procedure to disclose the information, which was not followed in Hutto's case.

The ruling may strike a blow to criminal defense attorneys in South Carolina who zealously represent their clients by challenging the procedures the State uses to introduce evidence against defendants at trial.  Police and prosecution agents should not be able to avoid statutory requirements when compliance will merely make things inconvenient for them.