EvidenceProf Blog

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

Wednesday, April 15, 2009

(Dys)Functional Equivalent?: Ninth Circuit Finds No Exception To Confidential Marital Communications Privilege For Grandchild Victim

The confidential marital communications privilege protects from disclosure private communications between spouses; however, there is an exception to the privilege for statements relating to a crime where a child of one or both of the spouses is the victim. As the recent opinion of the Ninth Circuit in United States v. Banks, 556 F.3d 967 (9th Cir. 2009), makes clear, this exception also applies to statements relating to a crime where the "functional equivalent" of a spouse's child is the victim, but only when the victim truly is a "functional equivalent."

In BanksJerry Levis Banks, Sr. appealed from his conviction on multiple counts involving the possession, production, transportation and receipt of images depicting minors engaged in sexually explicit conduct. Making Banks case even more disturbing was the fact that one of the images was a videotape of Banks' grandson. Banks was convicted based not only upon the introduction of that videotape into evidence, but also the testimony of his wife, who testified that her husband had admitted to making the video.

Part of the basis for Banks' appeal was that the district court improperly received his wife's testimony because it addressed a confidential marital communication and was thus privileged. And the Ninth Circuit noted that Banks was correct unless the facts called for application of the exception for statements relating to a crime where a spouse's child is the victim. The Ninth Circuit, noted, however, that this exception also applies to statements relating to a crime where the "functional equivalent" of a spouse's child is the victim "[g]iven that the bond between marital partners and the functional equivalent of their children would be nearly identical to that between marital partners and their birth or step-children." 

The question was thus whether the grandson was such a "functional equivalent," and the district court found that he was based on the following findings:

that JB, the alleged victim, was the grandchild of both the witness, Mrs. Banks, and the defendant, Mr. Banks; that the witness and the defendant were married and co-habitating at the time of the communication; that JB was in the care, joint care of Mrs. Banks and the defendant at the time of the alleged molestation; that JB was specifically being cared for by the defendant at the time of the alleged molestation; that at least during the two-month period prior to the alleged molestation that JB had been left in the joint care of the defendant and Mrs. Banks for two weekends beginning on Friday evening and ending Saturday afternoon; that the parents, i.e., Mr. and Mrs. Banks' son and their daughter-in-law, were not present during those times when JB was in the care of the defendant and his wife.

Further, during the approximate two years of JB's life preceding that time, for the first six months he had lived with Mr. and Mrs. Banks. And during that time, the parents also lived with Mr. and Mrs. Banks, but Mrs. Banks on occasion would feed, bathe, clothe, and change the diapers of JB on many occasions. After that three-month-or after that six-month period, the times in which JB was in Mr. and Mrs. Banks's care was very infrequent until April of 2005. But the parents started leaving JB in the care of Mr. and Mrs. Banks from the time he was about one and one half years old but not usually overnight until April of 2005.  

The Ninth CIrcuit, however, disagreed, concluding:

Although these facts demonstrate a strong bond between the victim and his grandparents, they do not show the type of relationship that would be considered the functional equivalent of a birth or step-child's relationship with his parents. Infrequent overnight visits are common to a large portion of grandparent/grandchild relationships, as are frequent visits with or even regular day-care services provided by the grandparents. This type of care, while admirable and important, does not carry the same indicia of guardianship and responsibility that a parent/child relationship carries. Further, while the district court noted that JB had resided with the Banks for the first six months of his life, it is an important qualifier that his parents had also resided in the home and that this living situation had ended well over a year before the alleged molestation.

This is not a case in which a child was raised by grandparents and, therefore, could be said to share a parent/child relationship with those caretakers. Rather, this situation demonstrates a strong grandparent/grandchild relationship. Although such a relationship is important to building strong extended families and improving society, it is not the type that creates the same overriding policy concerns that led us to limit the marital communications privilege to protect children of the marriage.   

The Ninth Circuit thus found that the district court erred in allowing Banks' wife to testify regarding his admission, but in light of the other evidence properly admitted at trial (such as the video and evidence that Banks made it), the court deemed this error harmless and affirmed Banks' conviction.

(Hat tip to my colleague Tim O'Neill for the link).



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