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Univ. of South Carolina School of Law

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Friday, July 31, 2009

Mississippi Mud: Supreme Court Of Mississippi Opinion Reveals Anomalous Nature Of Its Marital Privilege

Mississippi Rule of Evidence 504(b) provides that

In any proceeding, civil or criminal, a person has a privilege to prevent that person’s spouse, or former spouse, from testifying as to any confidential communication between that person and that person's spouse. 

There is no privilege under this rule in civil actions between the spouses or in a proceeding in which one spouse is charged with a crime against (1) the person of any minor child.

But what constitutes a crime against the person of any minor child? That was the question that the Supreme Court of Mississippi had to address in its recent opinion in Hood v. State, 2009 WL 2259937 (Miss. 2009).

In Hood, Melissa Hood, the wife of Ronald Hood, found a videotape

in a box of her husband's belongings within an extra bedroom at their home. She decided to view the tape on her VCR to determine its contents. Melissa testified that when she witnessed the videotape she became sick to her stomach. The videotape depicted nude male children, and Melissa believed the children to be between the ages of five and seven years old.

This videotape eventually formed the basis for the State bringing exploitation of children charges against Ronald, and at his ensuing trial, he was convicted based upon, inter alia, the testimony of Melissa. Ronald subsequently appealed, claiming, among other things, that the trial court should have precluded Melissa's testimony pursuant to Mississippi Rule of Evidence 504(b).

According to Ronald, the exception contained in Mississippi Rule of Evidence 504(d)(1) did not apply to his case; he claimed that "exploitation of children is not a 'crime against the person of any minor child,' and only those crimes specifically listed in Title 97, Chapter 3 of the Mississippi Code [crimes against the person] are such crimes."

The Supreme Court of Mississippi disagreed, noting that in Fisher v. State, 690 So.2d 268 (Miss. 1996),

this Court recognized that "Miss. R. Evid. 601(a)(2) indicates an obvious growing concern about sexual and violent abuse against children,” and as a result, amended Rule 504(d) to "reflect the same."...Rule 504(d) was amended to reflect the same intentions as Rule 601(a)(2); therefore, prosecution for “a criminal act against any child” absolves the husband-wife privilege as set out in Rule 504. There is no indication that Rule 504(d) was intended to apply only to the crimes listed in Title 97, Chapter 3 of the Mississippi Code, as crimes against persons, as Hood contends to this Court. Exploitation of children is a crime against the persons of minor children; therefore, the trial judge did not abuse her discretion in admitting Melissa's testimony.

I have no problem with this broad construction of the phrase "crime against the person of any minor child." But what seems odd to me is that the Mississippi Rule uses this particular phrase. Every other marital privilege I have seen merely provides an exception in a case where a spouse is charged with a crime against the minor children of either spouse. For instance, Arkansas Rule of Evidence 504(d)[1](2) provides an exception to its marital privilege "in a proceeding in which one [1] spouse is charged with a crime against the person or property of...a child of either." And Alaska Rule of Evidence 505(a)(2)(D)(i) provides an exception to its marital privilege "[i]n a proceeding in which one spouse is charged with...[a] crime against the person or the property of the other spouse or of a child of either, whether such crime was committed before or during marriage.

And this makes sense to me. The purpose of marital privileges is to protect the marital union, and there is no point in protecting a marital union when it involves a spouse committing crimes against the minor children of one or both of the spouses. But why should the privilege not apply when a spouse is charged with a crime involving minor children, but not either of the spouse's marital children? How is this any different than a spouse being charged with a crime against an unrelated adult?

-CM 

http://lawprofessors.typepad.com/evidenceprof/2009/07/ms-spousalhood-v-state----so3d------2009-wl-2259937miss2009.html

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