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Friday, January 16, 2009

Lost Spouse, Lost Privilege?: Pennsylvania Cold Case Murder Trial Involves Interesting Spousal Privilege Issues

An upcoming cold case murder trial for a man charged with the beating death and robbery of a Pennsylvania adult video store clerk should involve some interesting spousal privilege issues.  Sixteen years ago, someone killed Donald V. Gosline at a Liverpool, Pennsylvania adult video store and stole $1,372 from the store.  Authorities eventually brought charges against Steven Carl Buttolph after his then-wife, Marcie Piazza, contacted state troopers in 1995 to say that Buttolph committed the homicide.   But Buttolph was freed when Piazza later invoked spousal immunity and refused to testify against him at a preliminary hearing.

The murder case then turned cold, but it heated up again after authorities retrieved DNA from cigarette butts found at the crime scene, used a search warrant to obtain a DNA sample from Buttolph, and found that his DNA was consistent with the DNA found on the cigarette butts (this part of the story is confusing to me because the story on the case indicates that "Buttolph acknowledged shortly after the killing that he had been in the [adult video] store the night Gosline died,"  so I don't know what the DNA evidence added to the equation).  So, Buttolph will now stand trial.  And because Buttolph and Piazza have now divorced, authorities have wondered whether Piazza, whom has not yet been located, can now testify against Buttolph.   

Specifically, "Perry County District Attorney Charles F. Chenot III said Monday that either spouse can raise the spousal privilege, and his legal research indicates that it may still be in force even after a divorce."  Is he correct?  Well, to find out, we first need to ask which spousal privilege would apply to Piazza's possible testimony.  42 Pa.C.S. Section 5914 states in relevant part that:

     "Except as otherwise provided in this subchapter, in a criminal proceeding neither husband nor wife shall be competent or permitted to testify to confidential communications made by one to the other, unless this privilege is waived upon the trial."

Thus, if Buttolph told Piazza in private and while they were married that he murdered Gosline, Piazza would not be able to testify about this confidential communication during the course of the marriage.  And, as in most states, under this privilege, "disclosure of confidential communications made during a marriage is prohibited even following the dissolution of the marriage." Commonwealth v. Weiss, 776 A.2d 958, 967-69 (Pa. 2001). 

And when we think of the rationale behind this privilege, it makes sense.  Confidential marital communications are privileged because we want spouses to feel free to speak openly and honestly to each other without the fear that those communications will later be aired out in open court.  If the privilege terminated with the termination of the marriage, there would be no point to the privilege because that is exactly the time when one would expect disclosure.  This would be like finding that the attorney-client privilege ends with the end of the attorney-client relationship.

But, from the article on the case, it appears that at least some of Piazza's possible testimony would not be covered by 42 Pa.C.S. Section 5914.  According to that article, state troopers have said that Gosline told them "that she remembered Buttolph had a large, untreated gash on his right hand shortly after Gosline died."  This proposed testimony would concern what Piazza observed, not what Buttolph told her, meaning that it would not be covered by 42 Pa.C.S. Section 5914 and could only potentially be covered by 42 Pa.C.S. Section 5913, which states in relevant part that:

     "Except as otherwise provided in this subchapter, in a criminal proceeding a person shall have the privilege, which he or she may waive, not to testify against his or her then lawful spouse...."

And the obvious problem for Buttolph on this front is that this privilege clearly states that it only applies to a person's "then lawful spouse," meaning that the privilege "is extinguished upon death or divorce." Commonwealth v. Hancharik, 565 A.2d 782, 790 (Pa.Super. 1989).  Thus, if Piazza is located, she cannot claim that testimony on this matter or other things that she observed would be covered by privilege.

(Hat tip to Christopher Robinette of Widener Law and TortsProf Blog).

-CM

http://lawprofessors.typepad.com/evidenceprof/2009/01/pa-spousal-http.html

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