Is having sex with your spouse “communication”? The court of appeals addressed this issue in State v. Godbey, a child sexual abuse case. The victim alleged that the defendant engaged in specific, unusual sexual acts with her. The court considered whether the defendant’s wife could be compelled to testify that the defendant engaged in similar acts with her, or whether those acts were covered by the confidential marital communication privilege. Continue reading
Tag Archives: privileges
The first ten amendments to the U.S. Constitution are commonly known as the Bill of Rights and were ratified on December 15, 1791. It is remarkable how many of these amendments are still resilient today throughout the United States. Their individual freedoms against government interference include: the freedom of speech and religion and the right to peaceably assemble (First Amendment); the right to keep and bear arms (Second Amendment); the protection against unreasonable searches and seizures (Fourth Amendment); double jeopardy and due process protections, the prohibition against compelled self-incrimination, and compensation for private property taken for public use (Fifth Amendment); the right to counsel, speedy and public trial, impartial jury, confronting witnesses, and compulsory process to obtain witnesses (Sixth Amendment); and the protections against excessive bail and fines and cruel and unusual punishments (Eighth Amendment). This post focuses on the Fifth Amendment self-incrimination provision in the courtroom and the granting of immunity to a witness to compel testimony.
The Fifth Amendment privilege protects a person against compelled self-incrimination. A similar privilege exists in section 23 of Article I of the North Carolina Constitution, which has not been interpreted more expansively than the Fifth Amendment. While the privilege protects a person against compelled testimony and similar communications, it does not against compelled nontestimonial acts such as submitting to fingerprints, photographs, and sobriety testing, speaking for identification, appearing in lineups, and giving blood samples. See e.g., Schmerber v. California, 384 U.S. 757, 764-65 (1966) (withdrawal and chemical analysis of blood did not implicate defendant’s “testimonial capacities” and thus did not violate Fifth Amendment). The privilege may be invoked in any proceeding, civil or criminal, including a criminal investigation. It protects against any compelled disclosures that a person reasonably believes could be used in a criminal prosecution or could lead to the discovery of other evidence that might be used in a prosecution. Kastigar v. United States, 406 U.S. 441, 444-45 (1972). When a witness invokes the privilege, the trial court must determine whether it may be “reasonably inferred” that the answer may be incriminating, and the invocation should be “liberally construed.”
A criminal defendant has the right under the Fifth Amendment privilege to decline to take the stand. If a defendant decides not to testify, the State or a judge may not call the defendant to the stand, and a codefendant may not call the defendant to the stand at their joint trial. However, a defendant who voluntarily takes the stand and testifies in his or her own behalf cannot invoke the privilege on cross-examination concerning matters made relevant by direct examination. When a defendant exercises his or her Fifth Amendment privilege by not testifying at trial, any reference by the State or the trial court about the defendant’s election not to testify violates the Fifth Amendment.
A witness who is not a criminal defendant has the right under the Fifth Amendment privilege to refuse to answer a question if: (1) the answer may tend to incriminate the witness; (2) the witness is not immune from prosecution; and (3) the witness has timely invoked the privilege in response to a question. However, a witness who testified on direct examination cannot invoke the privilege on cross-examination concerning matters made relevant by direct examination.
A judge has the discretion whether (1) to advise a witness of his or her right not to answer incriminating questions, and (2) to allow the State or the defendant to call a witness to invoke the privilege before the jury.
A witness who invokes the Fifth Amendment privilege against self-incrimination in any criminal or civil hearing or proceeding, including a grand jury, may be ordered to testify or produce other information when the witness has been granted immunity under Article 61 of Chapter 15A. Although an order granting immunity may be issued in any criminal or civil matter, only a district attorney is authorized to apply for an order, and the application must be made before a superior court judge. G.S. 15A-1052(a). Thus, almost all applications involve criminal proceedings.
If the State later prosecutes the immunized witness, it has the burden of proving at the later trial that its evidence was obtained completely independent of the compelled testimony or information provided by the immunized witness. Although the standard of the burden of proof has not been decided by North Carolina appellate courts, they likely would follow federal law and require proof by a preponderance of evidence. United States v. Slough, 641 F.3d 544, 550 (D.C. Cir. 2011).
This has been a brief overview. If you are interested in a more detailed discussion, you may access my recently-published section, “Fifth Amendment Privilege and Grant of Immunity,” in the North Carolina Superior Court Judges’ Benchbook, which is available here.
It is hornbook law that “[a] confidential communication between husband and wife is privileged and neither spouse may be compelled to disclose it when testifying as a witness.” 1 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence 419 (6th ed. 2004). See also G.S. 8-57(c). Just today, the court of appeals decided a case that addresses when a spousal communication is “confidential.”
The case is State v. Terry. Officers received reports of drug activity at the defendant’s home and obtained a search warrant for the residence. When they executed the warrant, they found marijuana and drug paraphernalia. They arrested the defendant and his wife. The two arrestees were placed, alone, in an interview room at the sheriff’s office. They proceeded to discuss their situation, and in the course of the conversation, both “showed obvious knowledge of the drugs found in the residence.” Without the knowledge of the defendant and his wife, video and audio of the conversation was recorded. Prior to trial, the defendant moved to suppress any evidence about the conversation, contending that it was protected by the confidential spousal communication privilege.
The trial judge denied the motion on two grounds. First, he concluded that the “conversation appeared to be a conversation between two individuals . . . suspected of a crime and was not a conversation that would appear to be one between a husband and wife, per se. It was not a conversation that appeared to be . . . induced by the marital relationship . . . but instead a conversation between two individuals that were implicated in some crime.” Second, he ruled that the “defendant did not have a reasonable expectation of privacy as to these conversations,” i.e., they were not confidential communications, because “there are warning signs in the Sheriff’s Department to the effect [that the location is] under audio and visual surveillance,” and indeed, there are cameras “throughout the facility.”
The court of appeals affirmed, relying exclusively on the second ground. As precedent, it cited the recent case of State v. Rollins, 363 N.C. 232 (2009), in which the state supreme court held that the defendant “had no reasonable expectation of privacy in the conversations between his wife and him in the public visiting areas of the DOC facilities” in which he was imprisoned.
There are plenty of cases across the country finding the privilege inapplicable to telephone calls between spouses when one spouse is in jail, on the grounds that the jailed spouse was warned that jail phone calls are subject to recording and monitoring. And there are a handful of cases, like Rollins, about in-person prison visits. I couldn’t quickly find another case concerning face-to-face conversations between arrested spouses in an interview room, though. The result in Terry strikes me as an extension — not just an application — of Rollins, though perhaps a correct one if the warning signs were sufficiently prominent. In any event, I suspect that the result in Terry will lead police to leave arrested spouses alone together more often, in the hopes of capturing just the type of conversation that took place in this case.
I’ve received questions from both prosecutors and defense lawyers about whether and how the state can obtain a suspect’s — or a defendant’s — medical records when those records may contain information relevant to a criminal investigation. The most frequently-asked questions are addressed in the scenario below. Take a look, and post a comment if you disagree with my analysis of the law.
Suppose that Dan Driver has a one-car accident. Ollie Officer responds to the scene. Because it is 2:00 a.m. and there is no obvious cause for the accident, Ollie suspects Dan of DWI. EMTs take Dan to the local hospital for treatment, and Ollie is not able to, or simply fails to, obtain a blood sample under the implied-consent laws. Ollie contacts Paul Prosecutor and asks him to obtain a court order for Dan’s medical records, which Ollie knows are likely to contain bloodwork reflecting Dan’s blood alcohol content. Paul agrees to seek the order, and prepares a motion and order under G.S. 8-53, which allows the disclosure of otherwise-privileged health care records if “necessary to a proper administration of justice.”
1. Is such an order even necessary? Generally, yes. Under G.S. 90-21.20B, a health care provider must, upon request, “disclose to any law enforcement officer investigating the crash” certain information about Dan, because he was involved in an accident, including “name, location, and whether the person appears to be impaired by alcohol [or] drugs.” But this does not appear to authorize health care providers to disclose Dan’s medical records, which are what Paul and Ollie want. Such records are privileged under G.S. 8-53, and so are not subject to disclosure absent a court order. Paul and Ollie might, alternatively, obtain a search warrant for the hospital, though the hospital may view a court order as less threatening.
2. What showing must the state make in order to obtain such an order? Likely, reasonable suspicion. Cf. In re Superior Court Order, 315 N.C. 378 (1986).
3. Suppose that no charges are pending against Dan. Must Paul give Dan any notice of his intent to seek a court order? Probably not. Since there are no charges pending, Dan is not a “party” to any proceeding, and G.S. 15A-951, which requires motions to be served, therefore does not apply. Likewise, Paul’s motion is technically not ex parte, as there is no opposing party. Moving for an order under such circumstances would be akin to seeking a search warrant, or to seeking an order under In re Superior Court Order, supra, either of which may be done without providing notice to the suspect.
4. Suppose that Ollie charged Dan with DWI prior to contacting Paul. Must Paul give Dan any notice of his intent to seek a court order? Probably so. Because Dan now is a party, G.S. 15A-951 requires that the motion be served on Dan. Furthermore, submitting the motion ex parte likely violates the Rules of Professional Conduct. See Rule 3.5(a)(3); 2001 FEO 15. The mere fact that G.S. 8-53 allows a court order to trump the physician-patient privilege says nothing about whether such orders may be obtained ex parte. Nor does State v. Jones, 133 N.C. App. 448, 463 (1999), allow such an ex parte motion. The court there stated that “[a]lthough the case law prohibits ex parte communications with a party’s health care provider in civil cases absent the party-patient’s express consent . . . defendant has cited no authority to extend this rule to criminal defendants.” Not only does Jones fall short of holding that ex parte contacts with health care providers are permissible, by its terms it applies only to such contacts, not to ex parte contacts with the court, which is, of course, where Paul’s motion would be filed.
5. If Paul fails to give notice to Dan but notice was required, what happens? Dan may be able, in effect, to contest the motion after the fact, by appealing the order and/or by moving to suppress the evidence produced in response to the order or moving in limine to exclude it. See State v. Miller, 80 N.C. App. 425 (1986). Thus, Paul’s failure to give notice does not necessarily prejudice Dan, and does not necessarily require the exclusion of evidence produced in response to the order. However, a judge probably could exclude the evidence, if so inclined and upon proper findings, under the statutory exclusionary rule in G.S. 15A-974.
6. Which records should the judge require the hospital to produce? The judge should not allow the state to review all of Dan’s medical records, which may contain private and irrelevant information. Instead, the court’s order should require the hospital to produce only medical records that are relevant to the issue of impairment, including the results of any blood tests. If the judge is in doubt about the relevance of certain records, the judge may require an in camera inspection of the records, after which the judge may disclose the relevant records and withhold the remainder.