When an accused relies on the advice of counsel defense and the prosecution asks for all communication between the two, how does the prosecution know they have been handed over all communications?
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The same way any attorney knows they’ve received everything – they don’t, and can never be certain. However, in the modern age of electronic files that contain lots of metadata, an expert can frequently figure out if there are gaps in email chains, saved documents, drafts, etc. Not only that, there are lots of places to get documents other than from the attorney or client. A third-party file backup vendor, a law firm IT consultant, a cloud storage company, etc. If the stakes are high enough, they will be subpoenaed and courts don’t look too kindly on parties that claim to have produced everything only to find instances of non-production in files obtained from another source.
The same way you know they handed everything over in all other cases of discovery.
Usually attempts to hide things in discovery by pretending they don’t exist tend to go poorly. Every mail has at least two places where it ends up the sender and the receiver and if the recipient sends it on to someone else or refers to that email elsewhere you know you have a missing document.
eDiscovery of computer documents is an entire field that employs a lot of people. It is not easy to cheat here and the consequences of getting caught trying to cheat can be bad. It is much easier and safer to argue that a document shouldn’t be turned over than to argue that it doesn’t exist.
With the advice of counsel thing it is even harder to conceal anything than most cases. It is in effect the client throwing the lawyer under the bus and ends with the client and lawyer each blaming the other. It is hard to conspire to conceal evidence when you are at each others’ throats.
If the client says “My lawyer told me to do X” it is in his best interest to produce a mail where the lawyer told them to do x. Meanwhile if the lawyer send a mail that said “Don’t do X” it would be in their interest to produce that mail.
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