Will You (Quickly) Marry Me? Jailhouse Marriage Proposal to Secure Spousal Privilege is Relevant Evidence

The marital communications privilege protects from disclosure information privately disclosed between a married couple in confidence of the marital Wedding-Prison-Jail-1-300x199relationship.  A key phrase in this definition is “married couple” or a state-law equivalent, and one criminal’s attempt to silence his girlfriend through a jailhouse marriage proposal backfired in a major way.

The FBI arrested Donald J. Peel after he took a disabled female minor on a five-state sojourn that included illegal drugs and sex.  The government recorded Peel’s conversations with Nicole Gorski, his so-called girlfriend, conducted while Peel was in jail awaiting trial for transporting a minor with intent to engage in sexual activity.

In these conversations, Peel told Gorski that “you might have the right to marital privilege” and urged her to seek a lawyer about securing a Domestic Partnership Declaration under California Family Code § 297-297.5.  Peel needed Gorski to fall within the martial communications privilege so that she could refuse to provide trial testimony, because, as Peel said, “without you they ain’t got nothin’.”

Peel’s counsel moved under FRE 403 to exclude Peel’s conversations with Gorski about invoking the marital communications privilege.  The court, however, rejected this preclusion attempt, ruling that Peel’s effort to orchestrate the suppression of Gorski’s testimony was relevant to the government’s “consciousness of guilt” proposition.

While courts may exclude evidence of one spouse urging the other spouse to invoke the marital communications privilege, in this case Peel was asking his girlfriend “to marry him to create a privilege that did not already exist.”  The court rejected Peel’s arguments and admitted into evidence all of Peel’s conversations.

And without the marital communications privilege, Gorski’s testimony helped lead to a guilty verdict.   You may read the court’s opinion hereUnited States v. Peel, 2014 WL 5817259 (E.D. Cal. Nov. 7, 2014).

No word whether Gorski would have accepted the proposal, but she will now have 10+ years to think about it.

Watch Your Words–Commenting to Jury About Opposing Party’s Privilege Assertion Has Dire Consequences

In a case of first impression in Tennessee, the Tennessee Supreme Court ruled that a prosecutor’s comments during opening statement regarding information protected by the marital or spousal privilege constitutes prosecutorial misconduct.  In State v. Sexton, 2012 WL 4800459 (Tenn. May 29, 2012), the defendant was tried and convicted on two counts of first-degree murder, and sentenced to death. The defendant’s wife testified against him during the preliminary hearing.  Relying on Tennessee’s marital communication privilege, the defendant filed a pretrial motion to suppress communications between him and his wife.  The trial court reserved ruling on the motion, and had not issued a ruling prior to opening statements.

During opening statements, the prosecutor said this to the jury–

You know, a wife can’t testify against her husband …, and he makes sure he’s got [his wife] under his thumb. But a few days after the murder, he makes the mistake of not being at home and [she] runs down to the police station. She contacts the authorities. And when he gets home and she’s not there, he’s worried to death…. He goes and looks for her and finds her talking to officers. He tries to interfere with that interview that’s taking place. But it’s too late. She’s given an interview and she later even testifies against him. But through his manipulation, she’s back on his side now. And of course, you can’t testify—you can’t force a wife to testify against her husband. And he believes he can manipulate and control through either charm or intimidation everybody he needs to….

Some states,  particularly those that follow the Uniform Rules of Evidence, have evidentiary rules that prohibit lawyers from commenting on a privilege claim, see, e.g., Unif. R. Evid. 511 (“A claim of privilege, whether in the present proceeding or upon a previous occasion, is not a proper subject of comment by judge or counsel. No inference may be drawn from the claim.”).  Other states, like Tennessee, do not; and the question arises whether the common law prevents lawyers from commenting on claims of privilege before the jury.

The trial court was not forced to rule on defendant’s marital privilege motion because the State never called defendant’s wife to testify.  But the Tennessee Supreme Court ruled that the prosecutor’s comments amounted to prosecutorial misconduct. Relying on decisions from Alabama and Michigan, the Tennessee Supreme Court held that the prosecutor should not have commented on the exercise of the marital privilege.  The Court found that the prosecution’s aim was to imply that the defendant was preventing his wife from testifying for the purpose of suppressing evidence.  According to the Court, the benefit of the marital privilege is negated if prosectors are permitted to comment on the privilege during opening statement or closing argument. In short, the prosecutor’s comments on the privilege undermined the privilege itself, and amounted to prosectuorial misconduct.

PoP Analysis. This case provides an important roadmap to those states that do not have an evidentiary rule similar to Unif. R. Evid. 511.  Rule 511 provides generally that neither lawyers nor judges should comment on a party’s claim of privilege.  The Sexton case was decided in the realm of prosecutorial misconduct, and is limited to a prosecutor’s comments on the marital privilege; however, it likely foreshadows that courts will not tolerate any lawyer, whether in a civil or criminal matter, mentioning a party’s privilege assertion before the jury.  And while the prosecutor’s violation of this rule resulted in a finding of misconduct, other pentalties or remedies, ranging from special jury instructions to a mistrial declaration, are now on the table as a result of the Sexton ruling.  The take-away is that, even in jurisdictions without Rule 511 or its equivalent, lawyers should refrain from mentioning an opposing party’s privilege assertion when before a jury.  For further discussion, see Johnson v. State, 770 S.W.2d 128 (Ark. 1989) and Bixler v. Commonwealth, 204 S.W.3d 616 (Ky. 2006).