EvidenceProf Blog

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

Sunday, December 1, 2019

Supreme Court of Nebraska Opinion Reveals Broad "Crime of Violence" Exception to its Spousal Privilege

Every state has some type of marital privilege, and many states have two. Depending on the jurisdiction, the spousal testimony privilege either provides that

-a defendant spouse can prevent his/her spouse from testifying against him/her; or

-a spouse who is called to testify can refuse to testify against his/her spouse.

And, depending on the jurisdiction, the confidential marital communications privilege provides that:

-a defendant spouse can prevent his/her spouse (or ex-spouse) from testifying about confidential marital communications between the two; or

-a spouse  (or ex-spouse) who is called to testify can refuse to testify about confidential marital communications between the two.

Across jurisdictions, however, there is generally a clear exception to either privilege. But Nebraska's exception appears to be much broader.

In State v. Oliveira-Coutinho, 2019 WL 4892357 (Neb. 2019), Jose Oliveira-Coutinho

was convicted of three counts of first degree murder in connection with the 2009 deaths of Vanderlei and Jaqueline Szczepanik and their son, Christopher Szczepanik. Oliveira-Coutinho lived with the Szczepaniks and worked for Vanderlei.

After he was convicted,

Oliveira-Coutinho claimed that counsel was ineffective for failing to object to testimony of his wife based on both hearsay and marital privilege. He argued that her testimony included hearsay because she testified regarding things he had told her. He also argued that she should have been informed that she had the right to refuse to testify based on marital privilege.

The postconviction court determined that counsel was not deficient, because both objections would have been unsuccessful. The court first noted that Nebraska’s rules of evidence provide a hearsay exception for statements made by the defendant. With regard to the marital privilege, the court noted that Neb. Rev. Stat. § 27-505(3)(a) provides that the marital privilege may not be claimed in a criminal case where the crime charged is “a crime of violence.”

Specifically, Neb. Rev. Stat. § 27-505(3)(a) states that Nebaska's marital privileges may not be claimed

In any criminal case where the crime charged is a crime of violence, bigamy, incest, or any crime committed by one against the person or property of the other or of a child of either or in any criminal prosecution against the husband for wife or child abandonment.

Now, reading this, you may think that the portion of this exception dealing with "a crime of violence" only applies when defendant-spouse is charged with a crime of violence against defendant-victim. But, in State v. Palmer, 399 N.W.2d 706 (Neb. 1986), the Supreme Court of Nebraska made clear that 

The clear meaning of the statute is that the privilege may not be claimed where the crime charged is “a crime of violence, bigamy, incest, or any crime committed by one against the person or property of the other.” (Emphasis supplied.) Defendant's argument flies in the face of the clear meaning of the statute. If defendant's argument were correct, there would have been no need for the enumeration of not only crimes of violence but those of bigamy and incest as well, crimes which cannot be committed except by one spouse against the other or upon some other member of the family. Nothing within L.B. 696, as it amended § 27-505, limits crimes of violence to acts committed by one spouse against the other spouse. The words are clear and require no interpretation.

That may be the case...but it makes Nebraska an aberration. Many states contain domestic violence exceptions to their spousal privileges. But I'm aware of no other state with a broad "crime of violence" exception to its spousal privileges.

-CM

https://lawprofessors.typepad.com/evidenceprof/2019/12/every-state-has-some-type-of-marital-privilege-and-many-states-have-two-depending-on-the-jurisdiction-the-spousal-testimon.html

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