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July 24, 2008
Til Disclosure Do Us Part: Michigan Case Reveals State's Toothless Forumlation Of The Confidential Marital Communications Privilege
The recent opinion of the Michigan Court of Appeals in People v. Lutz, 2008 WL 2812134 (Mich.App. 2008), reveals that Michigan has a toothless confidential marital communications privilege. In Lutz, Jeffrey Shannon Lutz was convicted of false report of a felony, discharging a firearm at an emergency vehicle, reckless use of a firearm, and making a false report to a police radio station. Evidence presented at trial indicated that one day a detective recovered a gun from the crime scene that likely implicated Lutz and contacted Lutz, who was a sheriff's sergeant. During opening statements, the prosecutor indicated that there would also be evidence presented that soon after receiving this call, Lutz left "suicide messages" on his estranged wife's cell phone, which he argued would prove that Lutz knew that he was guilty of the subject crimes. At trial, the prosecution subsequently called the same detective who had called Lutz; the plan was that the detective would testify that soon after retrieving the "suicide messages," Lutz's wife called him and discussed the content of the messages.
Defense counsel objected, however, and the trial judge found such testimony inadmissible under Michigan Rule of Evidence 403, which states that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
After Lutz was convicted, he appealed, claiming, inter alia, that the state committed prosecutorial misconduct by mentioning the "suicide messages" during opening statements when evidence relating to those messages was later found inadmissible at trial. The appellate court disagreed, noting that the decision to exclude under Michigan Rule of Evidence 403 is a discretionary decision which the prosecution could not have anticipated at the commencement of trial.
I agree with this part of the decision, but I think that things fall apart when we consider how this part of the decision was reached. And such consideration starts with why the question of why the detective's testimony concerning the "suicide messages" was potentially admissible. He was testifying about what Lutz's wife told him, which in turn was based upon statements made by Lutz. So, there was "hearsay within hearsay" under Michigan Rule of Evidence 805, and each layer had to be admissible under some Rule for the detective to have been able to testify. And the court found that this was indeed the case, with: (1) Lutz's statement being admissible as the admission of a party opponent under Michigan Rule of Evidence 801(D)(2)(A), and (2) the wife's statement being admissible as a present sense impression under Michigan Rule of Evidence 803(1). Again, I have no problems with these findings.
But that leaves the question of why Lutz's messages to his wife weren't deemed inadmissible under the confidential marital communications privilege, which, under Michigan law, allows an individual to prevent his spouse from testifying concerning any confidential communications they shared with each other. As I have noted before, the purpose of the privilege is the same as the purpose behind the attorney-client privilege, the psychotherapist-patient privilege, and the clergy-penitent privilege: to preserve a relationship that there is a societal interest in preserving by promoting the flee flow of information through alleviating any worries that the individuals might have that the secrets they share could later be aired out in a courtroom.
And this makes Michigan's reading of the privilege baffling. According to the court in Lutz,
"Our Supreme Court has held that the marital communications privilege provides protection only against a spouse being questioned as a sworn witness about a marital communication and, accordingly, does not preclude introduction of the marital communication through other means....Indeed, the Court specifically held that the marital communications privilege was inapplicable to hearsay statements from a police detective about statements made by a defendant's spouse....Thus, the marital communications privilege would not have precluded the prosecution from eliciting testimony from Detective Declerq relating what defendant's wife told him about a statement made by defendant. Similarly, the distinct spousal privilege generally protects a person from being compelled to testify against his or her spouse."
Really? Doesn't this destroy the entire point of the privilege? If the purpose of the privilege is to alleviate any worries that spouses might have that the secrets they share could later be aired out in a courtroom, how is that purpose effectuated if either spouse can vitiate the privilege by disclosing the communication to a third party? This would be akin to a detective being able to testify that a defendant's attorney called and told him that his client admitted to him that he committed murder because it would be the detective and not the attorney testifying at trial, thus alleviating any privilege problem. Moreover, while there would again be "hearsay within hearsay" in this hypo, the defendant's statement would be an admission, and the attorney's statement would be admissible as a statement against interest because it would expose him to sanctions, and he would be "unavailable" to testify based upon the attorney-client privilege.
I thus don't see any way that Michigan can defend its formulation of the confidential marital communications privilege.
July 24, 2008 | Permalink
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When I went to law school, I concluded that, in tax law, whatever "rule" helped the Commissioner of Internal Revenue win the most cases was the law; and in torts, whatever "rule" helped the greatest number of plaintiffs win the most verdicts was the law of negligence. Nowadays in Michigan, whatever argument helps prosecutors win the most convictions is the law. Welcome to the world of Michigan criminal defense law.
Posted by: Greg Jones | Jul 24, 2008 1:22:15 PM
Evidentiary exclusions are strictly construed. The privilege protects confidential communications. The key is that the communications here were not confidential. They were left on an answering machine. The wife immediately told police about them. Where's the confidentiality?
I don't believe the result would be different in other jurisdictions.
Posted by: Evidentiary exclusions | Jul 24, 2008 8:54:14 PM
Evidentiary exclusions, that is itself an interesting issue, and I'm not sure how most courts would rule. Courts traditionally have held that messages left on traditional answering machines in houses in where several people lived were not covered by the privilege because people outside the marital relationship could have heard the message. See, e.g., Wong-Wing v. State, 847 A.2d 1206 (Md.App. 2004). But it seems to me that a message left on a cell phone is different. Sure, a person can intentionally share or inadvertently have other people hear a cell phone message, but the person who left the message probably reasonably expects that only the cell phone owner will hear the message. Or, to compare it to other situations where courts have found that the privilege applies, they have a similar expectation of confidentiality as a person who sends a letter to his spouse or sends her an e-mail. That said, I wasn't able to find any precedent, so I guess that courts could go either way.
On the other hand, I'm not sure how the wife immediately telling the police about the messages affects the confidentiality issue. Assuming that the messages were genuine and not merely attempts at attention, I'm quite sure that Lutz did not want his wife to disclose their contents to anyone else. The fact that the wife did engage in such disclosure has no effect on Lutz's expectations, which are what controls in the analysis.
None of that, however, is what bothers me about Michigan's reading of the privilege. What bothers me is that Lutz could have told his wife in the privacy of their bedroom that he planned on killing himself and that he wanted her to tell nobody, and as long as she immediately called the detective, the detective could have testified about what the husband allegedly said.
Posted by: Colin Miller | Jul 25, 2008 6:25:33 AM
The confidence is "broken" by repeating the information to third parties. You cannot put the genie back in the bottle. Even if the husband subjectively believed that his suicide threat was completely confidential once he relayed it to his wife and told her to keep it a secret, he has no control over the information once she utters it. (Nor does she). What if she went on television and broadcast it to the nation. Of course, she can not be forced to testify against her husband, but whoever heard her repeat the statement could so long as there is no hearsay obstacle. There is no privilege constraining the third party from repeating the information.
The same, actually, is true of the hypothetical from your case analysis. If a lawyer called the police station and told an officer that his client had confessed, so long as there was a hearsay exception for both levels of hearsay, that statement would be admissible. The officer is not constrained by attorney client privilege -- which exists only between the lawyer and the client -- from repeating the statement.
Posted by: Evidentiary exclusions | Jul 25, 2008 10:27:13 AM
I've never seen a case with such a holding. My understanding is that in states other than Michigan, "[i]f the husband and wife believe that they are alone and wish their conversation to be confidential, and that conversation is overheard by a third party unbeknownst to the couple, the third party cannot testify to the content of the conversation." Lee D. Schinasi, Privileges, EVD-FL CLE 4-1 (construing Gross v. Security Trust Co., 453 So.2d 944 (Fla. 4th DCA 1984).
Posted by: Colin Miller | Jul 25, 2008 12:07:13 PM
I believe the line of cases you refer to is distinguishable on the facts. It involves someone eavesdropping -- spying -- on a confidential conversation.
Posted by: Evidentiary exclusions | Jul 29, 2008 10:09:26 PM