EvidenceProf Blog

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

Monday, October 29, 2007

Calvin Harris, Take 2: Judge Finds Statements Covered By Spousal Communications Privilege

Last week, I wrote about Calvin Harris' attempt to have his murder conviction overturned based upon witness Kevin Tubbs coming forward and claiming that he saw the alleged victim with another man well after the police allege that Harris killed her and disposed of her body.  I noted that even though Tubbs' description of the man he saw with the victim matched the description of another suspect, Stacy W. Stewart, the police's failure to disclose the fact that they conducted a polygraph test on Stewart was unlikely to form the basis for a new trial because Pennsylvania courts have found that the failure to disclose inadmissible evidence to a defendant can never form the basis for a Brady violation.

I also noted that Tubbs' testimony was troublesome because his wife told police that Tubbs expected to be paid in exchange for his testimony.  Specifically, she told police investigators that her husband told her that he "would never have to work another day in his life" because he "will have a brown paper sack on the front seat of his truck that will be filled with money."

Harris caught a break when Tubbs' wife later claimed that the police "twisted" her statement to them.  He then caught another break when the judge hearing his appeal found that the wife's statement was inadmissible because it was covered by Pennsylvania's spousal communications privilege.

Pennsylvania's spousal communications privilege states in relevant part that in a criminal proceeding, neither husband nor wife shall be competent or permitted to testify to confidential communications made by one to the other...."  Because Tubbs' statements were made to his wife when nobody else was around, they were "confidential" and thus inadmissible.

Of course, none of this changes the Brady analysis, but if the judge finds Tubbs' testimony and other evidence presented by Harris to be sufficiently compelling, it is possible, but unlikely, that Harris will be given a new trial.


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