EvidenceProf Blog

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

Monday, December 15, 2008

The Hand That Holds The Privilege: Case Reveals That Military Rule Of Evidence Places Confidential Marital Communications Privilige In Hands Of Speaker

The recent opinion of the United States Air Force Court of Criminal Appeals in United States v. James N. Durbin, 2008 WL 5192441 (A.F.Ct.Crim.App. 2008), reveals that the holder of the confidential marital communications privilege under the Military Rules of Evidence is the spouse making the statement at issue.

In Durbin, around midnight on a night in March 2005, Ms. GD, then the wife of James Durbin, was doing homework on his laptop computer, whereupon she discovered what she believed to be child pornography. After discovering the images, she woke her husband and demanded an explanation. And after initially denying knowledge of how the images got on his computer, he claimed that "it was just a one-time thing" and promised to delete the images. Ms. GD told her husband that he was sick, that he needed help, and demanded that he leave their residence.

Subsequently, a panel of officers sitting as a general court-martial found James Durbin guilty of one specification of wrongfully possessing child pornography based in part upon the Ms. GD's testimony about what she told him after discovering the alleged child pornography.  And part of the basis for his appeal was that her testimony was rendered in violation of Military Rule of Evidence 504(b), its confidential marital communications privilege, which states in relevant part that:

     "A person has a privilege during and after the marital relationship to...prevent another from disclosing, any confidential communication made to the spouse of the person while they were husband and wife and not separated as provided by law....[T]he privilege may be claimed by the spouse who made the communication or by the other spouse on his or her behalf."

Of course, the problem for the defendant was the last portion of the rule, which places the privilege in the hands of the spouse who made the confidential communication, his wife, and because she "opted to disclose her communications she had with [him],...the military judge did not abuse his discretion in admitting her statements."

I thus agree with the court's opinion on the privilege issue, but I also wonder why the wife's statements were not deemed inadmissible hearsay, an issue which the opinion did not address.  I suppose that if the wife's statements were made immediately after viewing the images, they could have constituted present sense impressions.  And if we can characterize viewing what one believes to be child pornography as a startling event, and we can assume that the wife was still under the stress of that startling event when she spoke to her husband, her statements could have constituted excited utterances.  But I would need to know more about the facts of the case to make either of those conclusions.



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Could her statements to her husband have fallen under hearsay exception 803(3): then existing mental, emotional, sensation, or physical condition? The statements were offered not to prove the truth of the matter, e.g., that her husband was sick and needed help, but to show that she had a reaction to seeing the images and had formed a plan for future action. She was telling him to do something, not telling him he did something.
Or possibly she was offering the statements on rebuttal, per 801(d)(1).
The husband's statement, "it was just a one-time thing," falls under an admission by a party-opponent, doesn't it?
Trying to get the hang of it...

Posted by: Paula Paralegal | Dec 19, 2008 5:09:59 AM

Rule of Evidence 803(3) makes admissible "[a] statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will."

Even if the wife's statements to her husband regarding the child pornography were only a few minutes after she viewed it, those statements would still be inadmissible as statements of memory. And I'm not sure what probative value her statements would have beyond proving that the husband had child pornography.

Rule 801(d)(1) covers prior consistent statements, prior inconsistent statements, and prior statements of identification. I don;t see how any would apply unless there are facts in the case of which I am unaware.

Posted by: Evidence ProfBlogger | Dec 19, 2008 5:15:27 AM

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