Thursday, September 10, 2009
Robert P. Mosteller and Kenneth S. Broun (pictured at right)(both of University of North Carolina at Chapel Hill - School of Law) have posted The Danger to Confidential Communications in the Mismatch between the Fourth Amendment’s 'Reasonable Expectation of Privacy' and the Confidentiality of Evidentiary Privileges (Campbell Law Review, 2009) on SSRN. Here is the abstract:
This article examines the distinction between the concept of confidentiality under privilege law and the “reasonable expectation of privacy” concept of the Fourth Amendment. In many situations, the two concepts have the same application, but that is not always the case. We argue in this article that it would harm the protections currently understood to protect many significant confidential communications with professionals and marital partners to apply the Fourth Amendment concept to the law of evidentiary privileges.
This article arises from State v. Rollins, 675 S.E.2d 334 (N.C. 2009). Mickey Rollins was charged with murder. He had confided his guilt to his wife, who recorded their conversations for the authorities during visits with him in prison. The contested issue was the admissibility of the recordings under marital privilege law applied to confidential communications.
The conversation in question was a privileged marital communication under existing case law. Rollins was clearly relying on the confidence of the marital relationship in confiding his guilt to his wife. He had secretly lost her support and was deluded in the confidence he placed in her, but the marital privilege for confidential communications protects communicating partners from that type of betrayal. On these dimensions, his statement was clearly protected.
With respect to one issue - required confidentiality - the statement was close to the line but inside it under prior precedent. Rollins had the subjective intent to keep the conversation secret, and he had taken reasonable precautions to ensure no third party overheard. He had little margin for error since he was talking to his wife in a prison’s public visiting area, but the couple spoke quietly and were not overheard by those around them.
Had the majority found some way under these facts to rule that Mr. Rollins’ attempts to ensure confidentiality were inadequate, its narrow holding might have been factually unsupported but would not have posed much of a threat to the marital communications privilege or other privileges, such as the attorney-client privilege. However, the majority ruled broadly, deciding as a matter of law that, because the defendant lacked a “reasonable expectation of privacy” under the Fourth Amendment in the prison visiting area, he had no confidential evidentiary privilege. This article demonstrates that under the convoluted dimensions of the Fourth Amendment’s “reasonable expectation of privacy” concept and with the intrusion of technology into the privacy of many forms of contemporary communication, a vast array of important communications that are covered by evidentiary privileges would lose their protection if the erroneous reasoning of Rollins were applied to their requirement of confidentiality.