Chapter 10: Privileges
Case Study 1
Overview — Based on: Commonwealth v. Castro, 2016 Pa. Super. Unpub. LEXIS 212, 136 A.3d 1037 (2016).
The defendant appealed several convictions involving attempted kidnapping, possessing a firearm while under a disability, two counts of terroristic threats, domestic simple assault, and recklessly endangering another person. The convictions stemmed from an incident in which the defendant sent threatening text messages to his wife with the goal of persuading her to leave her place of employment. When she appeared outside her work location, the defendant attempted to force her into his car at gunpoint. The police response to this incident resulted in the arrest of defendant Castro, and the wife gave written statements to the police that summarized the incident. She showed the police the text messages that her husband had sent to her on the day of the assault. Her testimony related to his threats, and the text messages were admitted against the defendant. The Pennsylvania spousal communications privilege states that:
Except as otherwise provided in this subchapter, in a criminal proceeding neither husband nor wife shall be competent or permitted to testify to confidential communications made by one to the other, unless this privilege is waived upon the trial. 42 Pa. C.S.A. § 5914.
Castro pleaded guilty to possessing a firearm under a disability and went to trial in front of the jury on the remaining charges for which he was convicted. He then filed an appeal in which, among other issues, he contended that the trial court committed reversible error when it denied his motion to exclude the testimony of his wife and the text messages that related to his communication to her on the day in question. Castro contended that the communication between him and his wife involved protected confidential communications between spouses and should have been excluded from being introduced into evidence at trial. Essentially, Castro argued that the threats to his spouse involved a communication between spouses that was made in confidence and should have been considered privileged, so that his wife could not testify against him concerning that communication.
As a general rule, the admission or exclusion of evidence is within the sound discretion of trial courts and will not be reversed on appeal in the absence of an abuse of discretion by the trial court. Under Pennsylvania legal interpretations, an abuse of discretion involves the overriding or misapplication of the law, or the exercise of judicial decisionmaking that is manifestly unreasonable, or is the result of bias, prejudice, ill will, or partiality.
No. The general rule is that neither a husband nor a wife shall be permitted to testify concerning confidential communications made by one spouse to another. The communication must have been made in confidence without unnecessary third parties being present to overhear or to observe the communication. It is generally held that both a defendant spouse and a witness spouse may invoke the privilege and refuse to testify concerning the confidential marital communication, whether the case is civil or criminal in nature. This privilege is subject to some exceptions. The reviewing court cited Commonwealth v. McBurrows, 2001 PA Super 164, 779 A.2d 509, 514 (2001), which offered the following explanation of the marital confidential communication privilege:
Communications between spouses are presumed to be confidential, and the party opposing application of the rule disqualifying such testimony bears the burden of overcoming this presumption. In order for a confidential communication between spouses to be protected, knowledge must be gained through the marital relationship and in the confidence which that relationship inspires. In order to be protected under [Pa. statute] § 5914, it is essential that the communication be made in confidence and with the intention it not be divulged. Therefore, whether a particular communication is privileged depends upon its nature and character of the circumstances under which it was said. Accordingly, if the nature of the communication is not imbued with an aura of a sharing disclosure precipitated largely due to the closeness spouses share, then arguably it is not privileged.
There are situations in which the marital communications indicate by their context or content that they are intended to create or inject disharmony into the marital relationship. When the communication between spouses is not based on the confidentiality of the relationship, the privilege yields so as to allow testimony by one spouse against the other. In this case, defendant Castro sent text messages that included threats such as, “you wanted psycho, you got it” and “I’m going in shooting.” He also indicated to his wife that this was her “last chance, come out.” The reviewing court indicated that the testimony of the wife and the marital text messages were outside of the confidential communication privilege. Since it could not rationally be concluded that the communications involved considerations of domestic peace and harmony that should not be revealed beyond the marital partners or to other parties, the reviewing court held that the trial court properly concluded that the marital confidential communication privilege should not have been applied concerning the communication between the two spouses in this case. The convictions were affirmed by the appellate court.
See Chapter 10, Sections 10.3 and 10.3(C)(3).
Case Study 2
Overview — Based on: United States v. Chandler, 2011 U.S. Dist. LEXIS 52665 (Dist. Nev. 2011).
The defendant, Tavaras Chandler, has been charged with one count of being a felon in possession of a firearm in violation of federal law. The defendant filed a pretrial motion to exclude statements that might be made by his wife, Kimberly Valley. The prosecution would like to offer the statements against Chandler at his trial. On February 12, 2010, Valley, who was accompanied by her mother and 15-year-old daughter “AC,” telephoned the Las Vegas Metropolitan Police Department (LVMPD) from a convenience store to report that she and her daughter had been beaten by defendant, Chandler, at their apartment earlier that day. When LVMPD officers arrived, Valley told them that the defendant had punched her in the head and chest with a closed fist and had been beating her repeatedly for approximately three days, sometimes with a wooden stick. Valley also explained that the defendant, Chandler, held her against her will and kept her from leaving the apartment by taking the phones away and grabbing her by the hair when she attempted to escape. She signed a statement corroborating her oral statements. Her statement also contained the following: “He also pulled a gun on me. It was black. He pulled it on me. And told me he would kill me if I ever cheat on him.... The gun that the police got. Tavaras has pulled that gun on me before. Last week he put it up to me. And told me he would kill me.”
Subsequently, LVMPD officers searched the apartment that Kimberly Valley shared with her husband, the defendant, and her daughter after receiving Valley’s consent to do so. The officers recovered a 40-caliber handgun in the location where Valley had predicted. Later, in May of 2010, LVMPD officers again responded to the apartment of Valley and Tavaras after receiving a 911 call from Valley’s mother indicating that the defendant was beating Valley on that date. Valley then spoke with police and signed another voluntary statement explaining that the defendant had been beating her. The officers also learned that the defendant had hit the daughter, AC.
The defendant filed a motion requesting that all of Valley’s statements, both oral and written, be excluded from the defendant’s trial because he anticipated that his wife would be claiming both of her marital privileges not to testify against Chandler and, therefore, she would be unavailable for cross-examination.
No. The wife possesses a common-law marital testimonial privilege not to testify against her husband, if she wishes. However, as an exception to this privilege, she may testify where she has been the victim of criminal acts of her husband. The evidence disclosed that the wife had been beaten by the husband, and as a victim of the husband’s criminal acts, she may testify against him concerning those details. In addition, the defendant has hit the child issue of the marriage, so this is an additional reason why the wife could testify under the marital testimonial privilege exception. Under the modern view, the defendant spouse is not a holder of the marital testimonial privilege and generally may not assert it in a criminal trial.
Yes. The judge would not commit error by ordering a victim spouse to testify against the battering spouse because an exception to the marital testimonial privilege exists when the spouse or a child of the marriage has been injured intentionally by the criminal acts of a defendant spouse.
No. Prior to the Supreme Court’s decision in Trammel, a defendant-spouse could invoke the anti-marital facts privilege to bar his or her spouse from testifying. See Trammel, 445 U.S. at 51-52. After that ruling, the defendant no longer retained status as a holder of the privilege. See Trammel v. United States, Part II, Chapter 2.
See Chapter 10, Section 10.3 and Section 10.3 (C)(3).