Martial privilege was thrust into the legal spotlight this week when the North Carolina Court of Appeals ruled that tears were not covered under marital privilege. The court focused on the details of what constitutes confidential marital communication, and ruled that in this case, tears were not enough.
Lesiba Simon Matsoake was convicted in August 2014, for a rape that occurred in 2003. During the investigation, the victim worked with a police sketch artist to create a composite of her attacker. The sketch was circulated and appeared in local newspapers. After the rape occurred, Matsoake and his then-wife, Ruth Hart were riding in their car, with defendant in the passenger seat reading the paper.
Ruth would later say that her husband was crying when he saw the sketch. She did not call law enforcement for four years, finally coming forward in 2007, after several calls to the crime stopper hotline. When indicted in 2007, the defendant was in South Africa and was not extradited until 2012. Upon return, the state conducted DNA testing which matched Matsoake to evidence taken from the victim the night of the rape.
Matsoake objected to [testimony from his wife that he cried in response to a sketch in the newspaper], saying that it violated marital privilege as confidential communication between spouses.
The testimony at issue surrounded this car ride. Ruth testified: “ I heard like water, I heard a tear drop hit the paper and I looked over and [Defendant] was crying.” Matsoake objected to this testimony, saying that it violated marital privilege as confidential communication between spouses. The trial court rejected this contention, and the testimony was admitted. A jury found Matsoake guilty and he was sentenced to a minimum of 240 months in prison. Following sentencing, defendant immediately filed an appeal.
The Federal Rules of Evidence and state statutes provide that certain communications be exempt from testimony during a trial. One of these privileges is that of spousal communication. The idea of privileged communication between spouses comes from the idea that marriage is one of the most sacred relationships, and people should be encouraged to communicate freely to their spouse.
The Supreme Court has recognized two types of marital privilege, testimonial and communication. The testimonial privilege says that in a criminal case, no spouse can be forced to testify against the other. The communication privilege is the idea that communication, acts and words, between spouses is privileged.
The [North Carolina Statute regarding marital privilege] says that in a criminal action, either spouse can prevent the other from testifying to a confidential communication.
North Carolina has codified the martial privilege in North Carolina General Statute §8-57: Husband and Wife as witnesses in criminal actions. The statute says that in a criminal action, either spouse can prevent the other from testifying to a confidential communication. The statute says no husband or wife shall be compellable in any event to disclose any confidential communication made by one to the other during their marriage.
This privilege is not absolute. Either spouse can waive it by not objecting to the testimony, or by communicating in the presence of a third party. The privilege also does not cover communication between the spouses that occurs after the end of the marriage. The privilege must be expressly asserted by one of the spouses, otherwise the testimony will be allowed.
The court emphasized that gestures can be declarations, and when between spouses, are privileged communication.
North Carolina has taken up the issue of marital privilege more than once in its courts previously. In 1913, State v. Wallace (cited in the case at issue), the North Carolina Supreme Court ruled that admissions by silence and admissions by words count as spousal privilege. In 1978, State v. Fulcher, the North Carolina Supreme Court ruled that an action might be protected if it is intended to be a communication and is the type of act induced by the marital relationship. The court emphasized that gestures can be declarations, and when between spouses, are privileged communication.
A year later in State v. Suits, they again ruled that gestures that are communicative are protected under marital privilege. This differs from the federal idea of marital privilege, which focuses on the idea of communication as utterances, and not acts.
The court of appeals disagreed [that by crying, Matsoake was admitting to his wife what he had done,] ruling that the defendant did not make an admission to his wife through this act.
Analyzing the current case under existing North Carolina case law, the Court of Appeals ruled that Mr. Matsoake’s tears were not communicative, and therefore not covered under marital privilege. Matsoake’s attempted to compare his case to Wallace, saying that by crying he was admitting to his wife what he had done. The court of appeals disagreed, ruling that the defendant did not make an admission to his wife through this act. She did not know with certainty what he was crying about until later, and had not questioned him about it. Without there having been a conversation, there could be no admission. Hart never confronted her husband about the incident.
Matsoake also tried to say his crying was analogous to a gesture, but Hart was not aware for some time that defendant was crying until she heard the teardrop hit the paper. No testimony at trial gave any indication that Matsoake was trying to communicate anything to his wife, but instead was crying in a personal, non-communicative manner. The court agreed with the state that the crying was a reaction and not a conscious statement or gesture to his wife.
But what happens if a spouse truly means to communicate with their spouse through tears?
Two questions remain unanswered by these events. First, what does this mean for the future of marital privilege? The court made clear that in this case, crying was not a gesture, and is therefore not protected communication. But what happens if a spouse truly means to communicate with their spouse through tears? The court clearly has drawn a distinction between intending communication, and not. The court also made the distinction that crying here was not a gesture, but that is not always the case. So that inference leads to the belief that some crying may still be protected under the privilege.
If given the opportunity to clarify, the court will likely say that crying can sometimes be protected, as in the past it has made clear that gestures that communicate are protected. To not do this would be to say that not all communicative gestures are protected, further blurring the lines for future court decisions. However, the court could also be clear and say that crying can never be communicative for the purposes of marital privilege.
The second question that remains is whether Mr. Matsoake will appeal to the North Carolina Supreme Court. The court could either decline to review the case, review and affirm, or review and reverse. The North Carolina Court of Appeals relied on sound legal analysis, and binding North Carolina Supreme Court precedent to come to its conclusion, but they left the line blurred. They only made clear how tears were not communication in this case, and not how it will be classified in future cases. Hopefully, the defendant will appeal and the North Carolina Supreme Court will take this opportunity to make the issues abundantly clear.
There needs to be more clarity in marital privileged communications—when the line is blurry, defendants are unfairly affected by spousal testimony.
Looking forward, other states, which have not taken up the issue, may seek to clarify what is covered under marital privilege in response to the North Carolina Court of Appeals. They may seek to grant an appeal for a similar case, and make clear what is protected. Most likely, they would have the same general stance as North Carolina, but they could go the opposite way. There needs to be more clarity in marital privileged communications—when the line is blurry, defendants are unfairly affected by spousal testimony.
Marital Privilege remains one of the most important in our justice system, which dates back to common law. Though the privilege is important, it is not absolute. Federal courts have previously recognized that the importance of the privilege not being absolute, because it obstructs the truth seeking process. North Carolina recognizes that it is not, and crying just does not make the cut this time. The future for marital privilege and crying remains to be seen, but the court must be prepared to face it.