EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, December 9, 2007

I Met A Man With Seven Wives: Mississippi Court Finds Spousal Privileges Inapplicable In Bigamy Case

A bigamy case from Mississippi raises an interesting question regarding how the spousal evidentiary privileges apply in cases of bigamy/polygamy, a question with renewed relevance in a world with the Warren Jeffs case, Big Love, Mitt Romney, and Under the Banner of Heaven.  In David Gene Burnett Butt a/k/a David Gene Burnett v. State of Mississippi, 2007 WL 4170820 (Miss.App. 2007), the defendant was convicted of bigamy and false pretenses.  At trial, Pamela Dwyer, testified that she had been married to the defendant for 10 years when, in 1998, he disappeared while out on a shrimping boat.  When he hadn't returned by 2002, Pam successfully petitioned a court to have the defendant declared dead, thus ending their marriage.

Margaret Corley then testified that she met the defendant in 1998 and that the defendant and she married in 1999.  About three months later, Margaret suffered from a stroke, which resulted in Margaret granting the defendant power of attorney.  With this power, the defendant withdrew $60,000 from Margaret's IRA and placed it in a jont account.  The defendant then invested almost $50,000 of this money into a Monex account that was only in his name.  The defendant subsequently witndrew the balance of the Monex account, withdrew $7,500 from the joint account, and disappeared. 

After the defendant was found and convicted, he appealed on the ground that Pamela's testimony against him was precluded under either of Mississipi's spousal privileges.  Section 13-1-5 of the Mississippi Code of 1972 states that in most cases a spouse is not a competent witness and thus cannot testify against the other spouse.  This section, however, did not apply to Pamela's testimony because Pamela was no longer the defendant's wife. 

Meanwhile, Mississippi Rule of Evidence 504 states that "[i]n any proceeding, civil or criminal, a person has a privilege to prevent that person's spouse, or former spouse, from testifying as to any confidential communication between that person and that person's spouse."  This Rule, however, did not apply to Pamela's testimony because she was not testifying about private communications between the defendant and her; she was only testifying about how the defendant married and abandoned her.

This led me to ask, though, what might have happened if Pamela and the defendant were still married when the defendant took a second wife and/or if Pamela sought to testify about private communications between the defendant and her.  Spousal privilges typically have exceptions allowing a spouse to testify against his/her spouse when the other spouse is charged with a crime "against" the testifying spouse or their children.  Mississippi Rule of Evidence 504, for instance, allows for the testimony of a spouse against his/her spouse when the latter is charged with a crime against, inter alia, the person or property of the other spouse.  Typically, these exceptions apply in cases of domestic violence, but this case led me to wonder whether these exceptions would apply in cases of bigamy/polygamy.

It turns out that the Supreme Court of Mississippi actually resolved this issue in the 1925 case of McQueen v. State, 104 So. 68 (Miss. 1925).  The court rejected the argument that bigamy constituted a crime by a husband against a wife.  It found that the crime of bigamy was in the nature of a public wrong and that the former wife could not believe that her husband was guilty of a crime and thus have "no desire or interest in convicting her husband as having done a wrong to her." Id. at 169.

I disagree with this rationale.  There are plenty examples of battered wives later deciding that they don't want their husbands prosecuted after it is too late for the charges to be dropped.  And yet, in these cases, the exceptions to the marital privileges clearly apply.  In my mind the same should apply in bigamy/polygamy cases.  Sure, in these cases, the husband is committing a crime against the public, but he is also clearly committing and crime against his wife.  I admit that things become considerably more complicated when polygamy is part of a family's religion, but it seems clear to me that the defendant's bigamy was a crime against his first wife, Pamela.



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