Thursday, January 10, 2008
Retroactive Justice?: Virginia Court Finds Application of Amended Privilege Doesn't Violate The Ex Post Facto Clause
The recent decision of the Court of Appeals of Virginia in Carpenter v. Commonwealth, 2007 WL 4523104 (Va.App. 2007), addressed the intriguing issue of whether a court's retroactive application of a new or amended rule of evidence violates the ex post facto clause of the Constitution. In Carpenter, John Welford Carpenter, Jr. was convicted of rape and forcible sodomy after a bench trial in 2006 based upon alleged sexual acts that he committed with his then teenage stepdaughter in 1992 and 1993. Allegedly, after these acts, Carpenter told his stepdaughter that if she told anyone about what had transpired, he would kill her mother, Helen, who was also Carpenter's wife.
In 2004, after discovering a suspicious check written by Carpenter to his stepdaughter, Helen confronted her daughter, who revealed that Carpenter raped her when she was a teenager. Helen then confronted Carpenter, who started crying and told her that it had not been easy to live with what happened. Thereafter, Helen went to the police, who told her to purchase a tape recorder and record a confession by Carpenter. Subsequently, Helen purchased a tape recorder and secretly recorded a conversation with Carpenter in which he said, "Lord, please forgive me for raping [the victim]" and "Helen, please forgive me."
At the time that Helen recorded the conversation, Virginia had a private marital communications privilege wherein a spouse could refuse to disclose or prevent someone else from disclosing private marital communications unless the spouse seeking to testify had a right of action against the other spouse. In other words, a husband could not prevent his wife from testifying about a private conversation between the two where he discussed beating her or stealing money from her, but he could prevent his wife from testifying about a private conversation between the two where he discussed beating or defrauding a friend, stranger, or even the couple's child.
After Helen recorded the conversation, but before Carpenter's trial, Virginia amended its private marital communications privilege, Virginia Code Section 8.01-398, so that it is inapplicable not only when the spouse seeking to testify has a right to relief against the other spouse, but also when the other spouse is charged with a crime or tort "against the minor child of either spouse." At Carpenter's trial, the prosecution sought to introduce the tape recording of Carpenter's confession pursuant to Virginia Code Section 8.01-398, but Carpenter countered that application of this amended version of the privilege would violate the ex post facto clauses of both the Virginia and U.S. Constitutions. The trial court overruled Carpenter's objections, and the Court of Appeals of Virginia affirmed that decision.
The Court of Appeals noted that pursuant to the Supreme Court's opinion in Calder v. Bull, 3 U.S. 386, 390 (1798), the ex post facto clause of the U.S. Constitution proscribes the retroactive application of four types of laws: (1) laws which criminalize and authorize punishment for acts which were innocent when done; (2) laws which aggravate a crime or make it greater than when it was committed; (3) laws which inflict a greater punishment than the law annexed to the crime when committed; and (4) "[e]very law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender."
At first blush, the amended Virginia Code Section 8.01-398 might seem to constitute the fourth type of law. As the Court of Appels noted, however, the Supreme Court explicity foreclosed such a reading in its 2000 decision in Carmell v. Texas, 529 U.S. 513 (2000). In Carmell, the defendant was convicted of several sex-related crimes against his stepdaughter, who during some of the acts was 14 years-old or older. When these alleged acts occurred, the Texas statute criminzalizing them indicated that a defendant could not be convicted under the statute for sexual crimes against a minor 14 years-old or older solely based upon the testimony of the alleged victim; instead, there had to be some other evidence corroborating the alleged victim's testimony. Before the defendant's trial, however, Texas amended the controlling statute so that it no longer required corroboration.
After trial, the defendant was convicted despite the fact that the stepdaughter's testimony was not corroborated. The defendant's appeal eventually reached the United States Supreme Court, which held that application of the amended statute violated the ex post facto clause because it changed the quantum of evidence that was legally sufficient for a conviction. The Court then contrasted the Texas statute from the rules of evidence. It held that "[o]rdinary rules of evidence, for example, do not violate the Clause....[S]uch rules, by simply permitting evidence to be admitted at trial, do not at all subvert the presumption of innocence, because they do not concern whether the admissible evidence is sufficient to overcome the presumption.
The Court of Appeals for Virginia thus found that its amended private marital communications privilege, as an ordinary rule of evidence, did not violate the ex post facto clauses of the U.S. and Virginia Constitutions. As further support, the Court cited to other courts which had come to similar conclusions in the wake of Carmell. See, e.g., People v. Dolph-Hostetter, 664 N.W.2d 254 (Mich.Ct.App. 2003).
With respect to the United States Supreme Court, I strongly disagree with its decision in Carmell. My first reason is based upon a plain reading of Calder v. Bull The Court in Carmell found that a Texas criminal statute constituted the fourth type of law listed in Calder v. Bull while the ordinary rules of evidence do not. The fourth category of laws listed in Calder v. Bull, however, are laws that alter the legal rules of evidence. Clearly, the amended Virginia Code Section 8.01-398 altered a "legal rule of evidence" while Texas' amendment of its criminal statute did not alter a "legal rule of evidence." The Court's decision in Carmell thus makes no sense to me.
Second, I find the Court's dichotomy nonsensical. The Court in Carmell found that changes in rules of evidence do not at all subvert the presumption of innocence because they do not concern whether the admissible evidence is sufficient to overcome the presumption; conversely, changes to criminal statutes such as the Texas statute do subvert the presumption of innocence because they do concern whether the admissible evidence is sufficient to overcome the presumption. Is this in fact true?
Let's take the fact pattern from Carmell. There, the defendant was presumed innocent until found guilty beyond a reasonable doubt. Before the Texas statute was amended, that presumption could not be overcome, and he could not be convicted, solely based upon the testimony of his alleged victim; after the amendment, such testimony might be sufficient to convict him. So, if the only evidence against him was his alleged victim's testimony, the amendment to the statute subverted the presumption of innocence by making a conviction possible.
But, let's say that the statute was amended before the defendant's alleged crimes. And let's say that his alleged victim did not want to testify at trial but that she told a friend or family member that she was raped by the defendant. Finally, let's say that the alleged victim's statements constituted hearsay at the time they were made but that Texas added an exception to the rules against hearsay before trial, which allowed for her statements to be admitted. Before the Texas Rules of Evidence were amended, the defendant's presumption of innocence could not be overcome, and he could not be convicted, solely based upon the statements of the alleged victim (indeed, those statements would not even be admissible); after the amendment, those statements might be sufficient to convict him. So, if the only evidence against him was his alleged victim's statements, the amendment to the rules of evidence subverted the presumption of innocence by making a conviction possible. To me, there is no practical difference between these two situations.