Thursday, 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.