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Because the privilege applies only to communications made “in confidence,” id., “the presence of a third person will usually defeat” a claim of privilege, ¶ 11 (App. 2003) (cleaned up).

(distinguishing Cruz because “this is not a case where the witness denied the existence of any such conversation.”).

803(1); see, 528 (App. 1986) (admitting recording of neighbor’s 9-1-1 call describing burglary “as it was taking place”); ¶¶ 24–26 (App. 2003) (admitting statement, “[t]here goes your Fast and Furious movie,” made in real-time as eyewitness watched two cars race by and heard a crash moments later).

¶ 11 (“The court must ask ‘whether the client reasonably understood the [communication] to be confidential.’” ( ¶ 11 (App. 2003))).

¶ 35 (App. 2003) (affirming denial of lesser-included instruction of reckless driving when the indictment “made no reference, direct or implied, to the use of an automobile in the causing of death”).

The court must ask “whether the client reasonably understood the [communication] to be confidential.” ¶ 11 (App. 2003) (quoting Kevlik v. Goldstein, 724 F.2d 844, 849 (1st Cir. 1984)).

The appellate record does not reflect, however, that Mendez challenged NRZ’s standing in the superior court, and by failing to do so, he waived the issue absent fundamental, prejudicial error.2 ¶ 17 (App. 2003).

¶ 40 (2006); ¶ 9 (App. 2003).

¶ 33 (App. 2003) (“We will not reverse a conviction, based on a claim of error with respect to jury instructions, ‘unless we can reasonably find that the instructions, when taken as a whole, would mislead the jurors.’”) ().

¶17 The attorney-client privilege safeguards the “communication between the attorney and client made in the course of the attorney’s professional employment.” ¶ 10 (App. 2003) ().

And the state has the “burden to prove all elements of the offense, beyond a 2 STATE v. RHOME Opinion of the Court reasonable doubt.”

(no waiver of clergy- penitent privilege when husband told wife about contents of confession); ¶¶ 11-12, (no waiver of attorney-client privilege when client’s parents present during consultation).

The presence of a third party at an attorney-client conference will therefore cause waiver, unless “the third party’s presence does not indicate a lack of intent to keep the communication confidential.” ¶ 11

§ 32-2085 (West 2012); ¶ 10 , (attorney-client privilege “belongs to the client”).

In resolving this issue, , is insti’uctive.

613(b), 801(d)(1); (impeachment of party’s own witness permissible); (prior inconsistent statement by testifying witness not hearsay).