EvidenceProf Blog

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

Wednesday, November 25, 2009

Article of Interest: The Danger to Confidential Communications in the Mismatch between the Fourth Amendment's 'Reasonable Expectation of Privacy' and the Confidentiality of Evidentiary Privileges By Professors Mosteller And Broun

In Rob Reiner's classic movie "The Princess Bride" (based upon William Goldman's equally classic book), the following exchange occurs:


Inigo Montoya:  You keep using that word. I do not think it means what you think it means.

In their forthcoming article, The Danger to Confidential Communications in the Mismatch between the Fourth Amendment's 'Reasonable Expectation of Privacy' and the Confidentiality of Evidentiary PrivilegesUniversity of North Carolina School of Law Professors Robert P. Mosteller and Kenneth S. Broun argue that the Supreme Court of North Carolina played the role of Vizzini in a recent opinion. In that opinion, State v. Rollins, 675 S.E.2d 334 (N.C. 2009), the North Carolina Supremes found that statements which Mickey Rollins made to his wife when she visited him in prison, and which she surreptitiously recorded for authorities, were not privileged under N.C.G.S. Section 57(c), North Carolina's privilege for confidential marital communications.

The authors problem with the court's opinion was not so much the result. As they note in the introduction to their article, 

Had the majority simply ruled under these facts, that Mr. Rollins‘ attempts to ensure confidentiality were insufficient, its narrow holding would not have threatened the policies behind the marital communications privilege.  However, the majority did not rule narrowly.  

Instead, their problem is that court made the unprecedented move of importing Fourth Amendment analysis into privilege analysis and requiring Rollins to prove that he had a reasonable expectation of privacy while in prison. Of course, Rollins could not make this showing because, for Fourth Amendment purposes, individuals cannot have a reasonable expectation of privacy in prisons, open fields, public building hallways, and any other spaces which they do not own or control

Before Rollins, however,
privilege law ha[d] permitted individuals to create privileges outside of space they own or control.  Privilege permits pockets of temporarily constructed confidentiality to follow the communicators as long as reasonably effective precautions are taken to provide physical privacy.  It does so because it depends on the similar, but distinct, concept of reasonable expectation of confidentiality. 
So, what supported the Supreme Court of North Carolina's gambit? Well, according to the court, it was in part relying upon the authors' writings. In Rollins, the court cited, among other sources,
the treatise of Robert Mosteller and his co-authors, North Carolina Evidentiary Foundations, for the proposition that ―a confidential communication requires (1) physical privacy, and (2) an intent on the holder‘s part to maintain secrecy; and

Kenneth S. Broun and his co-authors in McCormick on Evidence [for the proposition that] [t]he rationale that the spouses may ordinarily take effective measures to communicate confidentially tends to break down where one or both are incarcerated.  However, communications in the jailhouse are frequently held not privileged, often on the theory that no confidentiality was or could have been expected.

According to the authors, allegedly relying upon this authority,
[t]he Court then took a momentous and unfortunate step.  The State had argued that the defendant had no reasonable expectation of privacy under the Fourth Amendment in any area in the prison facility, citing numerous authorities that clearly establish the accuracy of that well recognized initial proposition under the federal Constitution.65  The momentous step was the Court‘s agreement with the State‘s conclusion from this authority: because there was no Fourth Amendment protection, there was also no evidentiary privilege.
The authors' response: We do not think what we mean what you think we mean. For them, the problem is that the court confused the Fourth Amendment's requirement of a reasonable expectation or privacy with the confidentiality requirement for privileges. This is problematic because
subjective expectation of privacy and objectively reasonable efforts to maintain that privacy are necessary components of the Fourth Amendment‘s ―reasonable expectation of privacy, but they are not sufficient.  This is where the Fourth Amendment and privilege concepts diverge.  For courts other than the North Carolina Supreme Court in Rollins, satisfying the subjective expectation of confidential and taking reasonably effective (objective) efforts to maintain that confidentiality are not only necessary, but they are also sufficient.  Policy and values also limit the application of privileges, such as the loss of privilege for many statements when the confidential communications are made to facilitate commission of a future crime, but these concepts do not rest on privacy limitation.
The authors end by concluding that
There are a number of reasons for concern about the impact of a holding that the confidential nature of privileged communications is lost if a party to the communication lacks Fourth Amendment protection because he or she lacks a reasonable expectation of privacy. Important process issues, albeit not the most serious problems with the Rollins holding, afflict this decision.  Rollins confuses the law160 and potentially cedes aspects of what has previously been a matter of state law and careful nuance to the single voice of the United States Supreme Court, which often decides Fourth Amendment issues in the shadow of important police practices to control crime and security efforts to thwart terrorism.  A second and more important reason for concern can be found in the handling of eavesdroppers, whether private snoops under privilege law or public investigations under the Fourth Amendment.  The lenient treatment of the latter in part flows from the stunning inability of the Fourth Amendment to deal comprehensively and effectively with the technological changes that are part of the communications revolution in the digital age and the types of third party interactions we depend upon to live our modern lives and communicate messages and information.

I agree with the reasoning of the article and strongly recommend it to readers of this blog, either in its current form on SSRN or in the Campbell Law Review when it is published in December. I asked Professor Mosteller what led Professor Broun and he to write the article, and he responded:
I guess the primary reason we wrote about it was it seemed so misguided to me, particularly as to its potential larger implications.

I am teaching a seminar in advanced criminal procedure and one of the topics we covered in the spring of 2009 was the impact of technology on the Fourth Amendment rights of modern communication.  The mismatch between established Fourth Amendment precedent and a sense of privacy is rather dramatic.  Although statutes may give us some protection, the Fourth Amendment tends to lose its protective power when we communicate in the ways we do now.

Privilege law has its quirks, but no one suggests it cannot operate reasonably effectively in the modern world of communication.  I was struck when I read the case that it was wrongly decided.  However, I was most struck by its very unfortunate effect if the North Carolina Supreme Court really meant that the Fourth Amendment concept of "reasonable expectation of privacy," with its limitations, were to be incorporated into the confidentiality concept of privilege law.

The article should be published in December 2009.       


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