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                                           Nebraska A dvance Sheets
                                            292 Nebraska R eports
                                                    STATE v. BAIN
                                                  Cite as 292 Neb. 398




                                        State of Nebraska, appellee, v.
                                           Tyler C. Bain, appellant.
                                                    ___ N.W.2d ___

                                         Filed January 8, 2016.   No. S-14-638.

                1.	 Constitutional Law: Attorney and Client: Appeal and Error. Whether
                    a state intrusion into the attorney-client relationship should constitute a
                    per se violation of the Sixth Amendment and the action that a court
                    should take when it becomes aware of such an intrusion present ques-
                    tions of law that an appellate court reviews de novo.
                2.	 Constitutional Law: Criminal Law: Right to Counsel. The Sixth
                    Amendment to the U.S. Constitution guarantees every criminal defend­
                    ant the right to effective assistance of counsel. The right to counsel
                    exists to protect the fundamental right to a fair trial.
                3.	 Constitutional Law: Attorney and Client: Effectiveness of Counsel.
                    A defendant’s ability to keep privileged communications with coun-
                    sel insulated from the prosecution also protects the defendant’s Sixth
                    Amendment right to effective assistance of counsel.
                4.	 Constitutional Law: Attorney and Client. The essence of the Sixth
                    Amendment right is privacy of communication with counsel.
                5.	 Constitutional Law: Attorney and Client: Right to Counsel. Although
                    the attorney-client privilege has not been recognized as a right guaran-
                    teed by the Sixth Amendment, government interference in the confi-
                    dential relationship between a defendant and his or her attorney can
                    implicate the Sixth Amendment right to counsel.
                6.	 Attorneys at Law: Conflict of Interest: Appeal and Error. The
                    principles governing appellate review for a defense attorney’s potential
                    conflicts of interest also apply to potential disclosures of a defendant’s
                    privileged communications to the State.
                7.	 Constitutional Law: Trial: Appeal and Error. When a trial court
                    learns of facts that make a potential Sixth Amendment violation appar-
                    ent, the issue is properly presented to an appellate court on appeal, even
                    if it was not raised at trial.
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                        292 Nebraska R eports
                                STATE v. BAIN
                              Cite as 292 Neb. 398

 8.	 Trial: Attorney and Client: Presumptions. A presumption of preju-
     dice arises when the State becomes privy to a defendant’s confidential
     trial strategy.
 9.	 ____: ____: ____. The presumption of prejudice that arises when the
     State becomes privy to a defendant’s confidential trial strategy is rebut-
     table—at least when the State did not deliberately intrude into the
     attorney-client relationship.
10.	 Actions: Proof. The standard of proof functions to instruct fact finders
     about the degree of confidence our society believes they should have in
     the correctness of their factual conclusions for a particular type of adju-
     dication. It serves to allocate the risk of error between the litigants and
     to indicate the relative importance attached to the ultimate decision.
11.	 Constitutional Law: Proof. In cases involving individual rights,
     whether criminal or civil, the principle consideration in determining the
     proper standard of proof is whether the standard minimally reflects the
     value society places on individual liberty, because the function of legal
     process is to minimize the risk of erroneous decisions.
12.	 Trial: Presumptions: Proof. When a presumption of prejudice arises
     because the State has obtained a defendant’s confidential trial strategy,
     the State must prove by clear and convincing evidence that the defend­
     ant was not prejudiced by the disclosure.
13.	 Trial: Evidence: Proof. When a court is presented with evidence that
     the State has become privy to a defendant’s confidential trial strategy, it
     must sua sponte conduct an evidentiary hearing that requires the State to
     prove the defendant was not prejudiced by the disclosure and that pro-
     vides the defendant with an opportunity to challenge the State’s proof.

  Appeal from the District Court for Custer County: K arin L.
Noakes, Judge. Reversed and vacated.
   James Martin Davis, of Davis Law Office, for appellant.
   Douglas J. Peterson, Attorney General, and James D. Smith
for appellee.
  Heavican, C.J., Wright, Connolly, McCormack, Miller-
Lerman, and Cassel, JJ., and Irwin, Judge.
   Connolly, J.
                      I. SUMMARY
   A jury found the appellant, Tyler C. Bain, guilty of four
felonies stemming from his assaults of his former wife
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                          STATE v. BAIN
                        Cite as 292 Neb. 398

with whom he was living: kidnapping, first degree sexual
assault, second degree assault, and making terroristic threats.
Regarding the kidnapping conviction, the court found that
statutory mitigating circumstances did not exist. It convicted
Bain of a Class IA felony for kidnapping and sentenced him
to life imprisonment.
   Bain contends that the State violated his Sixth Amendment
right to counsel because at least five prosecutors had pos-
session of his confidential trial strategy before his trial. We
conclude that when Bain’s confidential trial strategy was dis-
closed to prosecuting attorneys, a rebuttable presumption arose
that Bain’s trial was tainted by a Sixth Amendment violation.
Because the court’s remedy was insufficient to rebut this pre-
sumption and ensure that Bain received a fair trial, we reverse
the judgment and vacate Bain’s convictions. And because we
vacate Bain’s convictions, we do not consider his other assign-
ments of error.
                       II. BACKGROUND
   Bain’s Sixth Amendment claim stems from a series of pros-
ecutors who saw confidential communications between Bain
and his originally retained counsel. The disclosure disqualified
them from prosecuting because the communications discussed
Bain’s trial strategy. The actual communications are not in the
record because the court failed to conduct an evidentiary hear-
ing or receive the communications as evidence.
   In January 2012, Bain appeared in district court for an
arraignment on the State’s amended charges. Rodney Palmer,
his retained counsel, appeared with him. In March, Bain moved
the court to appoint Palmer as his counsel because Palmer was
familiar with his case and Bain had depleted his assets. At the
hearing, the deputy county attorney, Glenn Clark, objected that
Palmer’s appointment would force the county to pay Palmer’s
travel time and expenses. The court overruled the motion
because Palmer was currently representing Bain.
   About a month later, at an April 2012 hearing on Palmer’s
motion to withdraw, Clark stated, in response to the court’s
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                    292 Nebraska R eports
                          STATE v. BAIN
                        Cite as 292 Neb. 398

question, that his office had no objection to Palmer’s with-
drawal. The court then asked Steven Bowers, an attorney who
was present in the courtroom, whether he had any conflict in
representing Bain. When Bowers said no, the court appointed
him because “[h]e is a local attorney and you [Bain] can meet
with him today.”
   Later, in September 2012, after representing Bain for 5
months, Bowers moved to withdraw as Bain’s counsel because
he had been hired by the Custer County Attorney’s office.
At the hearing, Clark informed the court that someone from
the Attorney General’s office would prosecute the charges.
Later that month, the court appointed P. Stephen Potter from
Gothenburg, Nebraska, to represent Bain.
   About 2 months after Bowers moved to withdraw, in
November 2012, the court allowed the county attorney and
deputy attorneys to withdraw because of the conflict created
by the county attorney’s hiring of Bowers. Clark reported
that he had given the county attorney’s case files to the
Attorney General’s office. The court appointed attorneys from
the Attorney General’s office to prosecute.
   Eight months later, in August 2013, the court heard a motion
from Matt Lierman, an assistant attorney general, to allow that
office’s attorneys to withdraw as prosecutors because of a con-
flict of interest. Lierman informed the court that while going
through the discovery materials that he had received from the
county attorney’s office, he saw confidential communications
between Bain and Palmer, Bain’s original attorney. Lierman
reported that he had sealed the confidential documents in a
tamper-proof envelope so that no one else could access them,
and he asked the court to keep them sealed. The court sus-
tained his motion to withdraw. As stated, the confidential com-
munications are not part of this record.
   On August 29, 2013, the court appointed Shawn Eatherton
as special prosecutor. But on September 6, the court entered an
order stating that it had conducted a telephonic hearing with
Eatherton and found that Eatherton had a conflict of interest. It
appointed Lynelle Homolka as special prosecutor.
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                          STATE v. BAIN
                        Cite as 292 Neb. 398

   About a month later, the court conducted a recorded tel-
ephonic hearing with Homolka, Bain, and Potter after Homolka
notified the court that she might also have a conflict. Homolka
said that while reviewing the materials provided by the Custer
County Attorney, she had found “what I suspected to be con-
fidential statements and general communications that could
reveal among other things that I believe would be the defend­
ant’s trial strategy.” Potter said he had seen the materials and
agreed that Homolka had seen confidential information and had
a duty to withdraw.
   The court sustained Homolka’s motion to withdraw, but it
appointed her as an expert and directed her to separate the
privileged information in her possession so that “this doesn’t
occur again.” The court further directed that after sorting the
materials, Homolka should give them to Potter so that he and
Bain could “make sure that nothing gets into the State’s hands
this time that shouldn’t be.” The court directed Potter to con-
sult with Homolka and to ask for an in camera hearing if any
further disputes arose over the State’s materials. After review-
ing the State’s materials, the court directed Potter to forward
the case file to the new prosecutor, minus any confidential
or privileged information. On September 27, 2013, the court
appointed John Marsh as special prosecutor.
   In October 2013, the court heard Marsh’s motion for a
continuance. At the hearing, Potter told the court that he had
received a box of materials from Homolka and had gone
through the box and the packet of “excluded evidence.” He
had removed the excluded packet and intended to deliver the
remaining materials to Marsh that day.
   About 4 months later, with Marsh representing the State and
Potter representing Bain, the court impaneled a jury. The State
tried Bain on the following charges: kidnapping, first degree
sexual assault, second degree assault, terroristic threats, and
use of a deadly weapon to commit a felony. The jury found
Bain guilty of kidnapping, first degree sexual assault, second
degree assault, and making terroristic threats. It acquitted him
of using a deadly weapon to commit a felony.
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                          STATE v. BAIN
                        Cite as 292 Neb. 398

   After accepting these verdicts, the court found that no miti-
gating circumstances existed to reduce a kidnapping convic-
tion from a Class IA felony to a Class II felony. It sentenced
Bain to life imprisonment for kidnapping. Consecutive to his
life sentence, the court sentenced Bain to aggregate concur-
rent sentences of 20 to 25 years’ imprisonment for first degree
sexual assault, second degree assault, and making terroris-
tic threats.
                III. ASSIGNMENTS OF ERROR
   Bain assigns that the State violated his Sixth Amendment
right to effective assistance of counsel—including his right to
confidential communications with his counsel and the right to
have appointment of trial counsel without the interference of
the prosecutor. He also assigns that the court erred in failing
to find the presence of mitigating factors under the kidnap-
ping statute, Neb. Rev. Stat. § 28-313(3) (Reissue 2008),
and convicting him of a Class IA felony under § 28-313(2).
He contends the evidence was insufficient to support that
conviction.
                 IV. STANDARD OF REVIEW
   [1] We are asked to decide whether a prosecutor’s undisputed
possession of a defendant’s confidential trial strategy should
constitute a per se violation of the Sixth Amendment—even
if the court later appointed a different attorney to prosecute.
Whether a state intrusion into the attorney-client relationship
should constitute a per se violation of the Sixth Amendment
and the action that a court should take when it becomes aware
of such an intrusion present questions of law that we review
de novo.
                      V. ANALSYIS
                 1. Parties’ Contentions
  Bain contends that the State’s intrusion into his confi-
dential communications with his defense counsel is a Sixth
Amendment violation that is presumptively prejudicial and
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                          292 Nebraska R eports
                                 STATE v. BAIN
                               Cite as 292 Neb. 398

requires dismissal of the charges. He argues that the court’s
order that required a disqualified prosecutor to sort through the
case file to identify and remove privileged communications did
not cure the presumed prejudice. He argues that the State has
the burden to prove the absence of prejudice from this type of
violation and that it would be impossible for a court to deter-
mine whether prosecutors had planned their strategies, gath-
ered evidence, and prepped witnesses from their knowledge of
Bain’s defense strategies.
   The State argues that Bain’s Sixth Amendment claims fail
because (1) he never raised a Sixth Amendment violation to
the trial court; (2) the prosecution did not intentionally obtain
Bain’s confidential information; (3) Marsh, the special pros-
ecutor who tried the case, never received any communication
of Bain’s defense strategy; and (4) the State used no tainted
evidence in the trial.
          2. A n A pparent Sixth A mendment Violation
             Based on the State’s Intrusion Into the
              Attorney-Client R elationship Can Be
                    Properly R aised on A ppeal
   [2] Initially, we reject the State’s argument that Bain’s Sixth
Amendment claim fails because he did not raise it to the trial
court. The Sixth Amendment to the U.S. Constitution guaran-
tees every criminal defendant the right to effective assistance
of counsel.1 The right to counsel exists to protect the funda-
mental right to a fair trial.2
   Courts have recognized that two unrelated Sixth Amendment
violations have a significant potential to deprive a defendant
of effective assistance of counsel: (1) a defense counsel’s con-
flict of interest in representing a defendant and (2) a govern-
ment intrusion into a defendant’s confidential communications

 1	
      State v. Narcisse, 260 Neb. 55, 615 N.W.2d 110 (2000).
 2	
      See, e.g., Lockhart v. Fretwell, 506 U.S. 364, 113 S. Ct. 838, 122 L. Ed.
      2d 180 (1993); Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
      80 L. Ed. 2d 674 (1984).
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                                 STATE v. BAIN
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with his counsel about trial strategy. Courts have more often
discussed when an appellate court will review a claim that a
defense counsel was operating under a conflict of interest for
the first time on appeal. Because we conclude that the same
appellate review principles should apply to claims of state
intrusions into privileged communications, we first discuss
the principles that courts have applied in conflict of inter-
est cases.
   As implied, the Sixth Amendment guarantees the right to
representation that is free from conflicts of interest.3 To pro-
tect this right, a trial court must hold a hearing and inquire
into a defense counsel’s potential conflict of interest when
the court knows or reasonably should know that a particular
conflict exists, even in the absence of an objection.4 And if a
trial court had a duty to inquire because a potential conflict
was apparent, an appellate court has discretion to consider the
issue and remand a cause for a hearing into the matter. This
is true even if the defendant did not raise the issue.5 Also, a
defendant can raise his or her attorney’s conflict of interest for
the first time on appeal if the defendant shows that an actual
conflict existed and that it adversely affected the attorney’s
performance.6
   [3-6] In an adversarial system of justice, a defendant’s
ability to keep privileged communications with counsel insu-
lated from the prosecution also protects the defendant’s Sixth
Amendment right to effective assistance of counsel. Many
federal and state courts have recognized that “the essence of

 3	
      See, e.g., State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012); State
      v. Schlund, 249 Neb. 173, 542 N.W.2d 421 (1996).
 4	
      See, Wheat v. United States, 486 U.S. 153, 108 S. Ct. 1692, 100 L. Ed. 2d
      140 (1988); Wood v. Georgia, 450 U.S. 261, 101 S. Ct. 1097, 67 L. Ed. 2d
      220 (1981); Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed.
      2d 333 (1980); State v. Aldaco, 271 Neb. 160, 710 N.W.2d 101 (2006);
      State v. Hudson, 208 Neb. 649, 305 N.W.2d 359 (1981).
 5	
      See Wood, supra note 4.
 6	
      See, e.g., Edwards, supra note 3, citing Cuyler, supra note 4.
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the Sixth Amendment right is, indeed, privacy of communica-
tion with counsel.”7 We agree. It is true that courts have not
recognized the attorney-client privilege as a right guaranteed
by the Sixth Amendment. But government interference in the
confidential relationship between a defendant and his or her
attorney can implicate the Sixth Amendment right to counsel.8
So we conclude that the principles governing appellate review
for a defense attorney’s potential conflicts of interest also apply
to potential disclosures of a defendant’s privileged communica-
tions to the State.
   [7] Here, the court knew that the disqualified prosecutors
had reviewed Bain’s confidential trial strategy. As we will
explain more fully, the State’s knowledge of that strategy was
sufficient to require an evidentiary hearing into whether the
State had violated Bain’s right to counsel and, if so, the appro-
priate remedy. Because the court had learned of facts that made
a potential Sixth Amendment violation apparent, the issue is
properly presented to us on appeal, even if it was not raised
at trial.
   3. Federal and State Decisions R ecognize an Inherent
         Unfairness in the Government’s Possession
              of a Defendant’s Trial Strategy

              (a) U.S. Supreme Court Precedent
  Our starting point is Weatherford v. Bursey.9 There, the U.S.
Supreme Court considered a civil rights action in which the

 7	
      United States v. Rosner, 485 F.2d 1213, 1224 (2d Cir. 1973), citing
      Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1942).
      Accord, e.g., U.S. v. Dyer, 821 F.2d 35 (1st Cir. 1987); United States v.
      Brugman, 655 F.2d 540 (4th Cir. 1981); United States v. Levy, 577 F.2d
      200 (3d Cir. 1978); People v. Knippenberg, 66 Ill. 2d 276, 362 N.E.2d 681,
      6 Ill. Dec. 46 (1977). See, also, Weatherford v. Bursey, 429 U.S. 545, 97 S.
      Ct. 837, 51 L. Ed. 2d 30 (1977).
 8	
      See, e.g., Howell v. Trammell, 728 F.3d 1202 (10th Cir. 2013); Clutchette
      v. Rushen, 770 F.2d 1469 (9th Cir. 1985).
 9	
      Weatherford, supra note 7.
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plaintiff, Bursey, alleged that a state undercover agent had
violated his Sixth Amendment right to counsel by participating
in discussions between Bursey and his attorney. The agent had
ostensibly participated in a crime with Bursey and was arrested
with him. Later, posing as a codefendant to maintain his cover,
he agreed to meet with Bursey and his attorney before trial.
The agent said that he would ask for a separate trial and would
not testify against Bursey. Although the agent had not planned
to testify, after he was seen with the police, the prosecutor
decided to call him. The agent testified about his undercover
work but not about any information that he had learned from
the attorney-client discussions. No evidence showed that the
agent had provided Bursey’s trial strategy to his superiors or to
the prosecution.
   The majority rejected the Fourth Circuit’s per se rule that
an undercover agent cannot meet with a defendant’s counsel
without violating the Sixth Amendment. Under that per se
rule, whenever the prosecution knowingly arranged or permit-
ted an intrusion into the attorney-client relationship, the right
to counsel would have been sufficiently threatened to require
reversal and a new trial. And the per se rule would have
applied regardless of the government’s purpose and without
a showing of prejudice to the defense. In reversing, the U.S.
Supreme Court was concerned that the Fourth Circuit’s per se
rule would effectively expose undercover agents because they
would always have to refuse requests to attend meetings with
defense counsel.10
   Instead, the Court emphasized two facts. First, the agent
had been placed in an awkward position by the request to
meet with defense counsel and had not purposefully obtained
Bursey’s trial strategy. Second, he had not communicated it
to the prosecutor or his staff.11 It concluded its previous cases
at most showed that when a conversation with counsel has
been overheard,

10	
      See id.
11	
      Id.
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      the constitutionality of the conviction depends on whether
      the overheard conversations have produced, directly or
      indirectly, any of the evidence offered at trial. This is a
      far cry from the per se rule announced by the Court of
      Appeals below, for under that rule trial prejudice to the
      defendant is deemed irrelevant.12
   But the U.S. Supreme Court suggested four factual circum-
stances that strongly indicate a Sixth Amendment violation:
      [1] Had [the agent] testified at Bursey’s trial as to the
      conversation between Bursey and [his attorney]; [2] had
      any of the State’s evidence originated in these conversa-
      tions; [3] had those overheard conversations been used in
      any other way to the substantial detriment of Bursey; or
      even [4] had the prosecution learned from [the agent] the
      details of the [attorney-client] conversations about trial
      preparations, Bursey would have a much stronger case.13
   In Weatherford, the government did not violate the defend­
ant’s right to counsel because “[n]one of these elements
[were] present . . . .”14 “[U]nless [the agent] communi-
cated the substance of the [attorney-client] conversations
and thereby created at least a realistic possibility of injury
to Bursey or benefit to the State, there can be no Sixth
Amendment violation.”15 This realistic threat of injury means
that actual prejudice need not be shown; a substantial threat
of prejudice is sufficient. Specifically, because the district
court found that the information the agent obtained had not
been communicated,
      he posed no substantial threat to Bursey’s Sixth
      Amendment rights. Nor do we believe that federal or
      state prosecutors will be so prone to lie or the difficul-
      ties of proof will be so great that we must always assume

12	
      Id.,   429   U.S.   at   552.
13	
      Id.,   429   U.S.   at   554.
14	
      Id.,   429   U.S.   at   555.
15	
      Id.,   429   U.S.   at   558.
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       not only that an informant communicates what he learns
       from an encounter with the defendant and his counsel
       but also that what he communicates has the potential
       for detriment to the defendant or benefit to the prosecu-
       tor’s case.16
    But Weatherford left open significant questions regarding
the contours of the right to counsel free from government
intrusions. The Court did not decide whether a per se violation
could be appropriate for some government conduct.
    Later, the U.S. Supreme Court considered the appropri-
ate remedy for the government’s deliberate intrusion into the
­attorney-client relationship when the intrusion did not prejudice
 the defendant’s representation. In United States v. Morrison,17
 federal drug agents met with the defendant twice without her
 attorney’s knowledge even though they knew she had retained
 counsel. They sought her cooperation, disparaged her attorney,
 and suggested that she would face stiffer penalties if she did
 not cooperate. But she did not cooperate or provide them with
 any incriminating information about herself or her case, and
 she kept the same attorney.
    The Third Circuit had concluded that this conduct violated
 the defendant’s right to counsel, even if the violation had not
 tangibly affected her representation. It dismissed the indict-
 ment with prejudice. The U.S. Supreme Court unanimously
 reversed, but it declined to address the government’s argument
 that no Sixth Amendment violation occurs unless its conduct
 prejudices the defendant. Instead, it assumed that the gov-
 ernment had violated the Sixth Amendment but held that the
 Third Circuit had erred in dismissing the indictment: “[A]bsent
 demonstrable prejudice, or substantial threat thereof, dismissal
 of the indictment is plainly inappropriate, even though the vio-
 lation may have been deliberate.”18

16	
      Id., 429 U.S. at 556-57.
17	
      United States v. Morrison, 449 U.S. 361, 101 S. Ct. 665, 66 L. Ed. 2d 564
      (1981).
18	
      Id., 449 U.S. at 365.
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   The Court stated that the remedies for Sixth Amendment
violations should be tailored to the injury suffered. So unless
“the constitutional infringement identified has had or threat-
ens some adverse effect upon the effectiveness of counsel’s
representation or has produced some other prejudice to the
defense . . . there is no basis for imposing a remedy in that
proceeding.”19 As with violations of the Fourth and Fifth
Amendments, the “remedy in the criminal proceeding is lim-
ited to denying the prosecution the fruits of its transgression.”20
Because the defendant had not demonstrated any “transitory or
permanent” prejudice, the government’s violation did not jus-
tify interfering in the proceedings.21
   So Morrison clarified that dismissing a charge is a drastic
remedy for a Sixth Amendment violation absent a show-
ing of actual prejudice or a substantial threat of prejudice to
the defendant’s representation. As noted, however, the Court
declined to reach the government’s contention that a showing
of prejudice would be needed to establish a Sixth Amendment
violation. So Morrison “left open the possibility that the
Court might adopt a per se standard for those state invasions
of the lawyer-client relationship that are not supported by
any legitimate state motivation.”22 After the Court decided
Weatherford and Morrison, other federal and state courts
carved out a court’s duty if the facts showed that investigators
or a prosecutor obtained a defendant’s privileged attorney-
client communications.
           (b) Federal Courts of Appeals Decisions
   The Sixth Circuit has held that if a prosecutor obtains privi-
leged communications and uses that information at trial to the
defendant’s detriment, the prosecutor’s conduct violates the

19	
      Id.
20	
      Id., 449 U.S. at 366.
21	
      Id.
22	
      3 Wayne R. LaFave et al., Criminal Procedure § 11.8(b) at 848-49 (3d ed.
      2007).
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Sixth Amendment.23 Even though the prosecutor had not pur-
posely obtained the information, he had used it to impeach the
defendant at trial. The court reasoned that the use of tainted
evidence—“i.e., evidence obtained as a result of the intru-
sion”—is sufficient to demonstrate prejudice and require a
new trial.24 Because the government used the information to
the defendant’s detriment, the court did not consider whether
state intrusions are a Sixth Amendment violation even without
a showing of prejudice.
   Later, the Tenth Circuit went further in a case in which the
prosecutor intentionally learned about a defendant’s trial prep-
arations and used the information at trial. It held that a state’s
purposeful intrusion into privileged communications is a per se
Sixth Amendment violation, for which prejudice is presumed:
“[W]e hold that when the state becomes privy to confidential
communications because of its purposeful intrusion into the
attorney-client relationship and lacks a legitimate justification
for doing so, a prejudicial effect on the reliability of the trial
process must be presumed.”25
   It is true that statements from other federal appellate courts
similarly suggest that a court would treat a state’s inten-
tional intrusion differently than an unintentional one.26 But
these courts also emphasized that neither the investigating
officers nor the prosecutor received information relevant to
the defendant’s trial strategy.27 Either of those facts should
alert a trial court to the threat that the State could have
used confidential information to the defendant’s detriment.
As the U.S. Supreme Court stated in Weatherford, a Sixth
Amendment violation is strongly indicated when a prosecutor

23	
      See Bishop v. Rose, 701 F.2d 1150 (6th Cir. 1983).
24	
      Id. at 1156.
25	
      See Shillinger v. Haworth, 70 F.3d 1132, 1142 (10th Cir. 1995).
26	
      See, U.S. v. Davis, 226 F.3d 346 (5th Cir. 2000); United States v. Ginsberg,
      758 F.2d 823 (2d Cir. 1985); United States v. Costanzo, 740 F.2d 251 (3d
      Cir. 1984).
27	
      See id.
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knows the details of a defendant’s trial strategy or the State
uses a defendant’s confidential information in any way to the
defend­ant’s detriment.28
   So if an investigating officer or a prosecutor receives a
defendant’s confidential trial strategy, the probability of preju-
dice from a Sixth Amendment violation is much higher than
with other types of state intrusions into the attorney-client
relationship. Accordingly, the District of Columbia Circuit
presumed prejudice where the evidence showed that the gov-
ernment’s intrusion into a client-attorney relationship resulted
in the defendants’ trial strategy’s being disclosed to the pros-
ecutor.29 The court explained that the right to counsel protects
a broader range of interests than the outcome of a trial: “for
example, the possibilities of a lesser charge, a lighter sentence,
or the alleviation of ‘the practical burdens of a trial.’”30 It
concluded that because the prosecution makes a “host of dis-
cretionary and judgmental decisions,” neither an appellant nor
a court could ever sort out how a prosecutor had made use of a
defendant’s confidential trial strategy.31 Thus, a defendant need
not prove that the prosecution actually used such confidential
information in its possession:
      Mere possession by the prosecution of otherwise confi-
      dential knowledge about the defense’s strategy or posi-
      tion is sufficient in itself to establish detriment to the
      criminal defendant. Such information is “inherently det-
      rimental, . . . unfairly advantage[s] the prosecution, and
      threaten[s] to subvert the adversary system of justice.”
      Further, once the investigatory arm of the government has
      obtained information, that information may reasonably be
      assumed to have been passed on to other governmental
      organs responsible for prosecution. Such a presumption

28	
      See Weatherford, supra note 7.
29	
      See Briggs v. Goodwin, 698 F.2d 486 (D.C. Cir. 1983), vacated on other
      grounds 712 F.2d 1444.
30	
      Id. at 494.
31	
      Id.
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      merely reflects the normal high level of formal and infor-
      mal cooperation which exists between the two arms of
      the executive.32
   The Third Circuit agreed that a trial was presumptively
tainted in a case in which investigating officers and the pros-
ecutor received a defendant’s confidential trial strategy:
      We think that the inquiry into prejudice must stop at
      the point where attorney-client confidences are actu-
      ally disclosed to the government enforcement agencies
      responsible for investigating and prosecuting the case.
      Any other rule would disturb the balance implicit in the
      adversary system and thus would jeopardize the very
      process by which guilt and innocence are determined in
      our society.33
Because the trial had already taken place, the court concluded
that the “disclosed information” was already in the public
domain and that a dismissal of the indictment was the only
appropriate remedy.34
   And the First and Ninth Circuits agree that it would be “‘vir-
tually impossible’” for a defendant to show prejudice from dis-
closures of privileged trial strategy to the government because
the defendant can only guess at whether and how the infor-
mation had been used to gain an advantage.35 But they do not
presume that the trial is tainted. Instead, the First Circuit holds
that if a defendant presents a prima facie case by showing that
investigating officers or the prosecutors received confidential
defense strategy through an informant, then the government
bears the burden to show that there has been and will be no
prejudice to the defendant because of disclosure. “The burden
on the government is high because to require anything less

32	
      Id. at 494-95, quoting Weatherford, supra note 7.
33	
      See Levy, supra note 7, 577 F.2d at 209.
34	
      See id. at 210.
35	
      See U.S. v. Danielson, 325 F.3d 1054, 1071 (9th Cir. 2003). Accord United
      States v. Mastroianni, 749 F.2d 900 (1st Cir. 1984).
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would be to condone intrusions into a defendant’s protected
attorney-client communications.”36
   The Ninth Circuit agrees with this burden-shifting scheme
but holds that a defendant must show that an informant “acted
affirmatively to intrude into the attorney-client relationship
and thereby to obtain the privileged information.”37 The court
compared the required hearing to the one required under
Kastigar v. United States38 to ensure that the government
has not used evidence tainted by a Fifth Amendment viola-
tion in a later prosecution against a former witness whom it
compelled to give self-incriminating testimony under a grant
of use immunity. It explained that in a Kastigar proceed-
ing, the prosecution must show that it derived its evidence
from legitimate, independent sources. It applied the same
burden when the government acquires a defendant’s confiden-
tial communications:
      [T]he government must present evidence, and must show
      by a preponderance of that evidence, that “all of the evi-
      dence it proposes to use,” and all of its trial strategy, were
      “derived from legitimate independent sources.” . . . In the
      absence of such an evidentiary showing by the govern-
      ment, the defendant has suffered prejudice.39
   Relying on its analysis of Kastigar, the Ninth Circuit clari-
fied that the government’s trial strategy includes the following
decisions: “decisions about the scope and nature of the investi-
gation, about what witnesses to call (and in what order), about
what questions to ask (an in what order), about what lines of
defense to anticipate in presenting the case in chief, and about
what to save for possible rebuttal.”40

36	
      Mastroianni, supra note 35, 749 F.2d at 908.
37	
      Danielson, supra note 35, 325 F.3d at 1071.
38	
      See Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d
      212 (1972).
39	
      Danielson, supra note 35, 325 F.3d at 1072.
40	
      Id. at 1074.
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               (c) State Appellate Court Decisions
   State courts have required similar procedures under a rebut-
table presumption of prejudice. In State v. Lenarz,41 state
investigators obtained the defendant’s detailed trial strategy
from a forensic search of his computer. The privileged com-
munications, which the trial court had specifically protected
in an order, included facts relevant to the complaining wit-
ness’ credibility and the adequacy of the police investigation.
Investigators provided the confidential information to the pros-
ecutor, who read them more than a year before the trial. The
Connecticut Supreme Court held that a rebuttable presumption
of prejudice arose from these circumstances, “regardless of
whether the invasion into the attorney-client privilege was
intentional.”42 The court further held that the State can only
rebut the presumption of prejudice by clear and convincing
evidence that no person with knowledge of the communica-
tion was involved in the investigation or the prosecution.43
Alternatively, the State could show that the communications
contained minimal privileged information or that it had access
to all the information from independent sources.44 But if the
State fails to rebut the presumption, the trial court must,
sua sponte, provide immediate relief to prevent prejudice to
the defendant.45
   In Lenarz, the prosecutor could not rebut the presumption
of prejudice because he had read the information more than a
year before the trial. The court reasoned that even if the pros-
ecutor did not use the information to develop new evidence,
the State could not show by clear and convincing evidence
that he did not use the information for trial preparations. Those
preparations included his “discussions with witnesses and

41	
      State v. Lenarz, 301 Conn. 417, 22 A.3d 536 (2011).
42	
      Id. at 437, 22 A.3d at 549.
43	
      Lenarz, supra note 41.
44	
      Id.
45	
      Id.
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investigators, or his decisions on jury selection, witness selec-
tion, examination of witnesses, or any of the other innumer-
able decisions that he was required to make . . . for and during
trial.”46 Because the prosecutor tried the case to conclusion, the
taint would be irremediable on remand and the charges had to
be dismissed.47
   The court recognized that dismissal was a drastic remedy.
But it reasoned that even if a new prosecutor did not see
the defendant’s trial strategy, the first prosecutor could have
already revealed it to witnesses and investigators. And the
public record of the first trial would show the first prosecu-
tor’s selection and examination of witnesses to anticipate and
neutralize any cross-examination of them.48 So the court con-
cluded that even a new trial with a different prosecutor would
be tainted by the constitutional violation in the first trial.49
In sum, because the prosecutor reviewed a “detailed, explicit
road map of the defendant’s trial strategy,” even if the trial
court had considered the issue before trial, it was unlikely
that the appointment of a new prosecutor would have been an
adequate remedy.50
   More recently, the Washington Supreme Court held that the
State could rebut the presumption of prejudice arising from a
detective’s eavesdropping on a defendant’s conversations with
the defendant’s attorney.51 After the defendant’s conviction, he
moved for a new trial based on a witness’ purported recantation
of her testimony. But the witness later told the prosecutor that
she was lying in the videotaped recantation. The prosecutor
asked a detective to listen to the defendant’s telephone calls
from jail, and the detective also listened to calls made to the

46	
      Id. at 440 n.17, 22 A.3d at 551 n.17.
47	
      Lenarz, supra note 41.
48	
      Id.
49	
      Id.
50	
      Id. at 451, 22 A.3d at 558.
51	
      See State v. Fuentes, 179 Wash. 2d 808, 318 P.3d 257 (2014).
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defendant’s attorney. The prosecutor claimed that the detective
did not disclose the contents of these conversations to him, but
it was unclear whether the witness had contacted the prosecutor
because of the detective’s eavesdropping.
   The court had previously presumed prejudice arising from
eavesdropping during trial but had not decided whether the
State could rebut the presumption. Relying on Weatherford, it
concluded that the extreme remedy of dismissing the charges
was unwarranted in the rare case when there was no possibility
of prejudice. But because the constitutional right to privately
communicate with an attorney was foundational and because
only the State knew how it had used the information, it held
that the State must prove beyond a reasonable doubt that the
intrusion did not prejudice the defendant. The court rejected
the State’s reliance on the prosecutor’s statement that he had
not received the information: “[R]egardless of whether the
prosecutor himself knew of the content of the conversations,
he may have relied on evidence gathered by [the detective]
as part of an investigation aided by the eavesdropping.”52 The
court remanded the cause for further proceedings with the right
to discovery.
    4. The Prosecution’s Possession of Bain’s Confidential
        Trial Strategy Presumptively Violated Bain’s
           Sixth A mendment R ight to Counsel and
               R equired an Evidentiary Hearing
   The above cases contain common threads that apply here.
For the majority of courts, a defendant’s confidential trial
strategy in the possession of a prosecutor or investigating offi-
cer is presumptively prejudicial. A minority of federal courts
do not presume prejudice, but they require the government to
prove the absence of prejudice. In either circumstance, courts
agree that a defendant cannot know how the prosecution
might have used his or her confidential attorney-client infor-
mation to the defendant’s detriment. The courts that presume

52	
      Id. at 822, 318 P.3d at 263.
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prejudice are split on whether the presumption is rebuttable.
Some courts hold that this type of government intrusion is a
per se Sixth Amendment violation that requires a reversal of
the defendant’s convictions—and dismissal of the charges if
a trial has already been completed. Other courts hold that the
State can rebut the presumption of prejudice. Those that do not
presume prejudice hold that the burden of proof shifts to the
government when the defendant presents a prima facie case of
a Sixth Amendment violation. But the standard for showing
that the defendant was not prejudiced is high. The State must
prove that it did not use the information for any purpose to the
defend­ant’s detriment.
               (a) Presumption of Prejudice Applies
                         but Is Rebuttable
   [8] We agree with courts that hold a presumption of preju-
dice arises when the State becomes privy to a defendant’s
confidential trial strategy. Federal courts are consistent on
two points: (1) any use of the confidential information to the
defend­ ant’s detriment is a Sixth Amendment violation that
taints the trial and requires a reversal of the conviction; and (2)
a defendant cannot know how the prosecution could have used
confidential information in its possession. We believe these
holdings cannot be reconciled except through a presumption
of prejudice.
   [9] But we hold that the presumption is rebuttable—at least
when the State did not deliberately intrude into the attorney-
client relationship. As other courts have suggested, some dis-
closures of confidential information to the State might be
insignificant. Or the State could prove that it did not use the
confidential information in any way to the defendant’s detri-
ment. For example, the State could prove that it did not derive
its evidence and trial strategy from the disclosure of a defend­
ant’s trial strategy by showing that it had legitimate, indepen-
dent sources for them.53

53	
      See Kastigar, supra note 38.
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   Regarding the State’s burden of production, we are per-
suaded by the Ninth Circuit’s adoption of its Kastigar require-
ments for potential Sixth Amendment violations. Those
requirements ensure that the prosecution does not violate a
defendant’s Fifth Amendment rights when the defendant has
no way of knowing how the government could have used his
or her previously compelled self-incriminating testimony. The
Kastigar requirements are clearly relevant to potential Sixth
Amendment violations of this type. So we clarify that the
State’s trial strategy includes its decisions about witness selec-
tion and examinations and about the type of defenses that it
should anticipate.
               (b) Standard of Proof Is Clear and
                      Convincing Evidence
   Because we conclude that a disclosure of a defendant’s trial
strategy to the prosecution is presumptively prejudicial, we do
not agree with the Ninth Circuit’s preponderance of the evi-
dence standard of proof.
   [10] The standard of proof functions to instruct fact find-
ers about the degree of confidence our society believes they
should have in the correctness of their factual conclusions for a
particular type of adjudication.54 It “serves to allocate the risk
of error between the litigants and to indicate the relative impor-
tance attached to the ultimate decision.”55
   The standards of proof applied across the legal spectrum
generally fall into three categories.56 The preponderance of
the evidence standard is most often applied in civil disputes
between private parties. Because the public has minimal inter-
est in the outcome, a preponderance standard appropriately

54	
      See Smeal Fire Apparatus Co. v. Kreikemeier, 279 Neb. 661, 782 N.W.2d
      848 (2010), disapproved in part on other grounds, Hossaini v. Vaelizadeh,
      283 Neb. 369, 808 N.W.2d 867 (2012).
55	
      Addington v. Texas, 441 U.S. 418, 423, 99 S. Ct. 1804, 60 L. Ed. 2d 323
      (1979).
56	
      See id.
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requires the parties to roughly share the risk of error.57 But
when a party’s interests in a civil proceeding are substantial
and involve more than the mere loss of money, but do not
involve a criminal conviction, due process is satisfied by an
intermediate standard of proof like “clear and convincing”
evidence.58 Finally, in a criminal case, due process requires the
prosecution to prove, beyond a reasonable doubt, every factual
element necessary to constitute the crime charged.59
   [11] In cases involving individual rights, whether criminal
or civil, the principle consideration in determining the proper
standard of proof is whether the standard minimally reflects
the value society places on individual liberty, because the
“function of legal process is to minimize the risk of errone-
ous decisions.”60 “The individual should not be asked to share
equally with society the risk of error when the possible injury
to the individual is significantly greater than any possible harm
to the state.”61
   Applying these principles, we conclude that a mere prepon-
derance standard is inappropriate. Both the State and the public
have a substantial interest in the fair administration of crimi-
nal justice and protecting a defendant’s constitutional rights.
More particularly, our society necessarily places a high value
on ensuring that criminal trials are not tainted by disclosures
that unfairly advantage the prosecution and threaten to sub-
vert the adversary system of criminal justice. And requiring a
defendant to share a roughly equal risk of error in determining
whether the State used his confidential information to his detri-
ment does not reflect those values.
   Conversely, the “beyond a reasonable doubt” standard is a
criminal trial protection that should not apply because the State

57	
      See id.
58	
      See, Addington, supra note 55; Smeal Fire Apparatus Co., supra note 54.
59	
      Smeal Fire Apparatus Co., supra note 54.
60	
      Addington, supra note 55, 441 U.S. at 425.
61	
      Id., 441 U.S. at 427.
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is not proving the elements of a charged offense. And we rec-
ognized that this strictest criminal standard does not apply to
the “admissibility of evidence or . . . the prosecution’s burden
of proof at a suppression hearing when evidence is challenged
on constitutional grounds.”62
   [12] But unlike the evidentiary issues presented in a sup-
pression hearing, we have determined that the State’s posses-
sion of a defendant’s confidential trial strategy is presump-
tively prejudicial. And that presumed prejudice would infect
more than the admission of disputed evidence. So we hold that
when a presumption of prejudice arises because the State has
obtained a defendant’s confidential trial strategy, the State must
prove by clear and convincing evidence that the defendant was
not prejudiced by the disclosure.
   Finally, we recognize other courts’ concerns that after a
completed trial, the prosecution’s tainted trial strategy will
be available in any new prosecution simply by examining the
public record. But absent evidence showing that the attorney
who prosecuted the State’s charges possessed a defendant’s
confidential trial strategy,63 we conclude that dismissal of the
charges is not necessary if the State satisfies the burden of
proof that we have set out. Because the State must prove that
the disclosure did not prejudice the defendant in the first pros-
ecution, a later prosecution will not be tainted by the record of
the first trial.
             (c) Court Must Sua Sponte Conduct an
                  Evidentiary Hearing to Ensure
                       Trial Is Not Tainted
   As our analysis implies, an evidentiary hearing is required
if the State is to have an opportunity to rebut a presumption of
prejudice. We additionally conclude that this case illustrates the

62	
      Lego v. Twomey, 404 U.S. 477, 486, 92 S. Ct. 619, 30 L. Ed. 2d 618
      (1972).
63	
      See Lenarz, supra note 41.
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necessity of a trial court independently conducting an eviden-
tiary hearing when it learns that a defendant’s confidential trial
strategy has been disclosed to the State—even if the defendant
has not raised a Sixth Amendment violation. A trial court must
ensure that a defendant’s right to effective representation is not
infected by disclosures of confidential communications that
threaten that right.
   Here, the court’s sorting procedures were inadequate for that
task. It is true that the court intended to ensure that Marsh,
the special prosecutor who ultimately tried the case, did not
receive Bain’s confidential trial strategy. But the sorting proce-
dures could not ensure that before the court appointed Marsh,
the State had not used the information to develop evidence or
witnesses or to otherwise gain an advantage or make decisions
detrimental to Bain. Notably, the county attorney’s office had
possession of Bain’s confidential trial strategy for 2 months,
followed by the Attorney General’s possession of the informa-
tion for 8 months.
   Nor did the court’s sorting procedure ensure that none of
the preceding prosecutors had communicated Bain’s confi-
dential trial strategies to Marsh. Additionally, we are con-
cerned by statements in the record showing that Bain’s
confidential trial strategy was available to Homolka, despite
Lierman’s statement to the court that he had sealed the docu-
ments so that no one else could obtain them. Finally, we have
been hampered in our review by the absence of the most
significant evidence: the documents containing Bain’s confi-
dential information.
   [13] So we hold that when a court is presented with evidence
that the State has become privy to a defendant’s confidential
trial strategy, it must sua sponte conduct an evidentiary hear-
ing that requires the State to prove that the disclosure did not
prejudice the defendant, and it must also give the defendant an
opportunity to challenge the State’s proof. Because the court’s
procedures failed to ensure that Bain received a fair trial,
we vacate his convictions. Our decision does not necessarily
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preclude the State from seeking to try Bain again on these
charges. But before the district court permits a retrial, it must
conduct an evidentiary hearing, as set out above, to ensure that
the trial will not be tainted.
                       VI. CONCLUSION
   We conclude that if a trial court is presented with evidence
that the State has learned of a defendant’s confidential trial
strategy, a presumption of prejudice from a Sixth Amendment
violation arises. This presumption requires the court to inde-
pendently conduct an evidentiary hearing even if the defendant
has not raised the issue. The presumption is rebuttable, at least
when the State did not deliberately intrude into the attorney-
client relationship. At the evidentiary hearing, the State must
prove by clear and convincing evidence that the disclosure did
not prejudice the defendant and the court must give the defend­
ant an opportunity to challenge the State’s proof. Because
the court’s procedures were inadequate to ensure that Bain
received a fair trial, we vacate his convictions. Because we
vacate Bain’s convictions and do not know whether the State
can prove that a new trial would not be tainted, we do not
address his remaining assignments of error.
                                        R eversed and vacated.
