New York Law Review

Tag: Marital Privilege

  • People v. Wilson, 64 N.Y.2d 634 (1984): The Marital Privilege and Missing Witness Inference

    People v. Wilson, 64 N.Y.2d 634 (1984)

    The marital privilege does not extend to observations of a spouse’s presence or absence unless those observations constitute a confidential communication made solely due to the marital relationship; furthermore, a missing witness charge is appropriate when a party fails to call an available witness, such as a spouse, who could support their alibi.

    Summary

    Wilson was convicted of a crime, and on appeal, he argued that the trial court erred in giving a missing witness charge regarding his wife, who did not testify to support his alibi. He also claimed that the charge violated his marital privilege and that his lineup identification was unduly suggestive. The New York Court of Appeals affirmed the Appellate Division’s order, holding that the missing witness charge was proper because the wife’s testimony would be favorable and not trivial. The court further clarified that the marital privilege does not automatically extend to observations of a spouse’s presence or absence unless those observations are confidential communications arising solely from the marital relationship. The lineup issue was not reviewable because it was a factual finding affirmed by the Appellate Division.

    Facts

    The defendant, Wilson, presented an alibi defense at trial, implying he was at home with his wife at the time of the crime. However, he did not call his wife to testify and support his alibi. The prosecution requested, and the trial court gave, a “missing witness” charge, allowing the jury to infer that the wife’s testimony would not have supported Wilson’s alibi. Wilson objected, asserting marital privilege.

    Procedural History

    The trial court convicted Wilson. The Appellate Division affirmed the conviction. Wilson appealed to the New York Court of Appeals, arguing that the missing witness charge was improper and violated his marital privilege. The Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    1. Whether the trial court erred in giving a missing witness charge when the defendant failed to call his wife to support his alibi.
    2. Whether the missing witness charge violated the defendant’s marital privilege.

    Holding

    1. Yes, the trial court did not err in giving the missing witness charge because the wife was an available witness whose testimony would likely be favorable to the defendant and not trivial or cumulative.
    2. No, the missing witness charge did not violate the defendant’s marital privilege because the mere fact of his presence or absence from his apartment was not a confidential communication arising solely from the marital relationship.

    Court’s Reasoning

    The Court of Appeals reasoned that the missing witness charge was appropriate because Wilson presented an alibi, and his wife was an available witness who could have supported that alibi. Because she was not called, the jury could infer that her testimony would not have been favorable to Wilson. The court cited People v. Rodriquez, 38 NY2d 95, in support of this holding.

    Regarding the marital privilege, the court clarified that not all interactions between spouses are privileged. The privilege only applies to confidential communications that would not have occurred but for the marital relationship. The court cited People v. Melski, 10 NY2d 78, 80, stating, “The privilege is ‘designed to protect not all the daily and ordinary exchanges between the spouses, but merely those which would not have been made but for the absolute confidence in, and induced by, the marital relationship.’” The court found that Wilson’s mere presence or absence from his apartment was not such a communication. The court emphasized that acts, as well as words, can constitute communications, but only if they are confidential, citing People v. Daghita, 299 NY 194.

    The court distinguished between ordinary observations and confidential communications, highlighting the importance of confidentiality in invoking the marital privilege. The ruling emphasizes that the marital privilege is not a blanket protection against spousal testimony, but rather a shield for genuinely confidential exchanges rooted in the marital bond.

  • Matter of Vanderbilt (Rosner-Hickey), 57 N.Y.2d 66 (1982): Protecting Marital & Attorney-Client Privileges

    57 N.Y.2d 66 (1982)

    Confidential communications between spouses during marriage are privileged, even if made in contemplation of suicide; material protected by the Fifth Amendment and attorney-client privilege in a client’s hands retains that protection when transferred to an attorney for legal advice.

    Summary

    This case concerns a grand jury investigation into the attempted murder of Clara Vanderbilt. Dr. Rosen, a suspect, created two cassette tapes: one for his wife (Tape No. 1) and another found at his office (Tape No. 2). Rosen’s attorney, Rosner, refused to produce the tapes, asserting marital privilege and attorney-client/Fifth Amendment privileges. The Court of Appeals held Tape No. 1 was protected by marital privilege, barring its disclosure or examination for alterations. Tape No. 2 was protected by a combination of the attorney-client and Fifth Amendment privileges, but only if Rosen’s wife was acting as his agent when she transferred it to his attorney. The Court emphasized that transferring evidence to an attorney doesn’t automatically shield it if it wouldn’t have been protected in the client’s hands.

    Facts

    Clara Vanderbilt was found unconscious near Dr. Richard Rosen’s office after telling an acquaintance she was meeting him there.

    Rosen, aware he was a suspect, created a tape for his wife (Tape No. 1) and left another at his hospital office (Tape No. 2). He then attempted suicide.

    Rosen’s wife found Tape No. 1 and, on advice from a friend who was an attorney (Olick), did not listen to it and instead gave it to Olick.

    Tape No. 2 was retrieved from Rosen’s office and given to his wife.

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    Rosen hired attorney Rosner, and Rosen’s wife gave him both tapes.

    During the investigation, Rosen’s wife revealed the existence of Tape No. 1, but Rosner refused to produce either tape, citing privilege.

    Procedural History

    The Bronx County Grand Jury subpoenaed the tapes.

    Rosner refused to comply with the subpoena and an ex parte court order.

    The trial court found Rosner in contempt but allowed time to surrender the tapes under seal.

    The Appellate Division reversed the trial court, finding Tape No. 1 protected by the marital privilege but ordering it tested for alterations. They ruled no privilege applied to Tape No. 2 and ordered its disclosure.

    The New York Court of Appeals heard the appeal.

    Issue(s)

    Whether Tape No. 1, a message from a husband to his wife prepared in contemplation of suicide, is protected by the marital privilege, and whether that protection extends to prevent examination for tampering.

    Whether Tape No. 2 is protected by a combination of the attorney-client privilege and the Fifth Amendment privilege against self-incrimination.

    Holding

    Yes, because the tape was a confidential communication induced by the marital relationship, the marital privilege protects both its contents and from examination for deletions.

    Yes, because an attorney may rely on the attorney-client privilege to prevent discovery of materials that would not have been discoverable if in the client’s hands but only if the client gave the tape to the attorney and if the wife was acting as the husband’s agent when she transferred the tape to his attorney.

    Court’s Reasoning

    The court reasoned that the marital privilege protects confidential communications made because of the marital relationship. A suicide note to a spouse falls under this protection as it may be an attempt to preserve affection and explain the drastic act.

    The privilege remains intact even if third parties handle the communication, as long as the substance of the communication is not revealed. Here, only the existence of the tape was revealed, not its contents.

    Once a communication is determined to be privileged, it is irrelevant whether it has been altered; deletions are as much a part of the communication’s substance as the statements made. The court stated, “What is not said and whether deletions have been made are as much a part of a communication’s ‘substance’ as are the statements actually made.”

    Regarding Tape No. 2, the court acknowledged that Rosner could not directly assert Dr. Rosen’s Fifth Amendment rights. However, an attorney may rely on the attorney-client privilege to prevent discovery of materials that would not have been discoverable if in the client’s hands.

    The attorney-client privilege extends to confidential communications made to obtain informed legal advice. Here, delivering the tape was necessary for Rosner to render legal advice.

    The court emphasized that the confidentiality of the tape’s message was maintained because none of the individuals who handled the tape listened to it. The court noted, “When Rosner finally received the tape, he received it with its contents undisclosed.”

    To assert the Fifth Amendment privilege, the evidence must be testimonial, and the act of producing it must also have a testimonial quality. A tape cassette is testimonial because it is an aural record of communication.

    The court noted that producing the tape would authenticate it, vouching for its accuracy. Therefore, the Fifth Amendment protection is available, but only if Dr. Rosen gave the tape to Rosner and Mrs. Rosen was acting as his agent.

    Judge Jasen dissented in part, arguing that the facts surrounding Tape No. 2 did not guarantee confidentiality and that Rosner did not establish that the tape was given for legal advice. Judge Jasen also argued that the tape should not be assumed to be self-incriminatory or testimonial.

  • People v. Schmoll, 417 N.Y.S.2d 834 (1979): Marital Privilege and Exceptions for Threats; Probable Cause for Arrest

    People v. Schmoll, 417 N.Y.S.2d 834 (1979)

    The marital privilege, a testimonial privilege, does not prevent police from acting on information provided by a spouse, especially when it involves threats against the spouse and children; such information, coupled with a consensual house search, can establish probable cause for arrest.

    Summary

    In this case, the defendant was convicted of criminal possession of dangerous drugs (marijuana) and illegal possession of a sawed-off shotgun. The police acted on information from the defendant’s wife about threats he made against her and their children, along with her consent to search the house. The search revealed the shotgun. The Court of Appeals held that the marital privilege did not bar the police from acting on the wife’s information to protect herself and her children. The Court reversed the marijuana conviction because the wife’s testimony, which was barred by the marital privilege, was the only evidence supporting that charge. However, the shotgun conviction was upheld because there was independent credible evidence to support it.

    Facts

    The defendant’s wife informed the police about threats made by the defendant against her and their children. She also consented to a search of their home. During the search, police discovered a sawed-off shotgun. Based on the wife’s information and the discovery of the shotgun, the police arrested the defendant. A subsequent search of the defendant’s person revealed lysergic acid diethylamide (LSD).

    Procedural History

    The defendant was convicted in the trial court of criminal possession of dangerous drugs (marijuana) and illegal possession of a sawed-off shotgun. The Appellate Division affirmed the convictions. The case then went to the New York Court of Appeals.

    Issue(s)

    1. Whether the marital privilege precluded the police from acting on information provided by the defendant’s wife and conducting a search consented to by her.
    2. Whether the information provided by the wife and the subsequent house search provided probable cause for the defendant’s arrest.
    3. Whether there was sufficient evidence, independent of the wife’s testimony, to convict the defendant of the marijuana offense.

    Holding

    1. No, because the marital privilege is a testimonial privilege and does not prevent the police from acting on information provided by a spouse, especially when it involves threats.
    2. Yes, because the wife’s disclosures and the discovery of the sawed-off shotgun during the consensual search provided a reasonable belief that the defendant had committed a misdemeanor.
    3. No, because without the wife’s testimony, there was insufficient evidence to convict the defendant of the marijuana offense.

    Court’s Reasoning

    The Court of Appeals reasoned that the marital privilege, as codified in CPLR 4502(b), is a testimonial privilege, not a universal “gag” rule. The wife’s disclosures to the police were made to protect herself and her children from the defendant’s threats, creating an exception to the privilege. The court emphasized that the police had a duty to act on this information. While the threats alone might not have justified an arrest, the wife’s disclosures combined with the discovery of the illegal shotgun during the consented search provided probable cause to believe the defendant had committed a misdemeanor, namely illegal possession of the shotgun, under Penal Law § 265.05(3). This lawful arrest then justified the incidental search that revealed the LSD. The court explicitly stated the wife’s disclosures were “exceptions to the privilege, which in any event is a testimonial privilege and not a universal ‘gag’ rule.” Regarding the marijuana conviction, the court found that the only evidence supporting it was the wife’s testimony, which was inadmissible due to the marital privilege; therefore, that conviction could not stand. The court also noted that, despite imperfections in the trial, the irregularities were either not properly preserved or were harmless in light of the admissible evidence. The court found credible evidence from witnesses other than the wife that the defendant had possessed the shotgun, justifying the inference that he possessed it in the home he jointly occupied with his wife until two days before his arrest.