State of New Hampshire v. Deborah Ann Bradley

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Yes, thank you. Your Thank you, your Honor. Um, and good morning to the court. May it please the court. My name is Chad Rothstein and I represent Deborah Bradley. Um, I'll take questions at any time. I wanna start my argument with just addressing head on what is the strongest argument that the state offers today. And that is their first, um, their first argument of brief, that the marital privilege only blocks a spouse from taking the witness stand. It does not, it does not protect the actual information, the, the marital confidence. Um, and that is a literal reading of Rule 5 0 4, which is similar to the statute that that proceeded. The, literally the rule expresses a two pronged, actually two different rules, each of which contain the language along the line of neither shall that be allowed to testify against the other in each prong. So if this court historically had taken the statute, which became a rule literally by its terms, then they hope they would've a very strong argument. Textually, has any of the court so interpreted the rule that way? You mean outside New Hampshire? Yes. I mean, I just think decisions from outside New Hampshire don't have much, don't, are, are not that instructive because most jurisdictions actually maintained a two-prong rule like we have in, you know, literally stated in the rule. But, um, in 1872, as long ago as 1872 in the Clemens versus Marson decision, the court folded both of them into one rule protecting Marial confidences. So, you know, as of 152 years ago, if I'm doing my math right, and ever since this court has never taken the, the terms, the taken, the, the terms of the rule, literally. Um, so what happened in Clement versus Marston? Why we see the word testify both twice in Wolf, five, four. I think that it is a vestige. It's like a tailbone, okay? It's a vestige of the historical origin of this privilege. The historical origin of the privilege is not about protecting marital confidences. The historical origin is the, the common law rule that, that, um, a wife did was not competent. She testified for or against her husband because she was deemed to have an interest to be biased. So biased that, that she would, um, that she would be an unreliable witness. And they have the same rule for criminal defendants because of their interest in the, of parties in general, that a party could not take the stand in their own, you know, to support their own cause because they're deemed to be unreliable. So, and then by 1872, the CL versus maron court goes through all the history of all these legislative changes that have fundamentally changed the rule. And by the end of a decision, they talk, um, they talk about how the rule protects marital confidence is, um, and so it's no longer a rule about the quality of the witness. It's a, you know, that or the unreliability of the witness. It's a rule about the actual information, the substance that we're trying in this case, to shelter. Um, so you move forward to Wilkinson 120 years later, the 1992, uh, state v Wilkinson decision, they note that, you know, well, it is a two-prong rule, but 120 years ago, um, our court folded it all to one thing. That there must be a finding of a violation of marial confidence, unquote, before a ca court can exclude the information. And so the repeated use of the word testify is an anachronism relating back to the fact that originally the rule was about the quality of the witness, not about the actual substance, the information and reading from, um, I'm sorry. So in comments v marston, the court wrote that thus it appears of the present policy of our, our legislation on this subject is to make the husband and wife confident witnesses for or against each other just as though they were a stranger, except in a single case where the court can see that such has to lead to a violation of marital confidence. And so in Wilkinson, the court said that in Clements, the court had folded these two prongs into one thing requiring violation of marital confidence. And then we have the legislature telling us what they think this rule is all about. Uh, RSA 6 32 A five is the marital, um, privilege exception for, for con for things that provide evidence of the sexual abuse of a child, right? Um, an actor, I'll read you our RA 6 32 5 actor commits a crime on this step chapter, even though the victim is the actor's, legal spouse laws attaching a privilege against the disclosure of communications between husband and wife are in inapplicable to proceedings under the af the aggravated felonious sexual assault chapter. So, um, in our, in general Bradley's appeal, the court, the lower court correctly found in a footnote that that statute actually doesn't apply because she was not accused of any kind of sexual assault. But the point of all this is that here in 1975, the legislature is telling us what their understanding of the marial privilege is. It's a privilege against the disclosure of communications between husband and wife. It's not a privilege. It's about, um, that these are inherently unreliable witnesses. What Should we take from pier? So Pier, um, was a case where the court first expanded the privilege, right? Because, 'cause the, the, the raw text, again, literal text of the rule and its predecessor statutes, talks about communications. So in Palantir, the court expanded the rule to say, well, sexual acts between a couple, you know, private sexual activity, um, that could be communications. And I'm, I'm pretty sure that no one could have predicted with certainty that decision, um, when it came out. But then having given with one hand, this court correctly took away with the other and said that, wait, this, in this case pier, the wife wants to testify against her husband and her husband's own criminal prosecution. 'cause she wants to show the jury that his favorite and relatively unusual sexual acts are exactly what the daughter is accusing him of. So she was trying to support the prosecution on behalf of her own daughter. So the, the context couldn't be more. And so the court said that this is not the kind of communication that we were, that that marital privilege is intended to stop. So what I would argue, first of all is, um, that because the court expanded the exception, but then didn't apply to the facts of that case, the court didn't create any issues about reliance or ex post capto. Okay? But here, what the state wants to do is they want to expand the scope of the exception, and they, and they, um, are very clear about what they're doing. They're not just construing the rule and issues number two and three in the state's brief. They say they want to expand the scope of the exception for public policy reasons. All Democrat has a say about that is that may be a great idea, it's not fair to apply it to her, okay? That it's when we're expanding, when we're contracting a privilege. And if you make a larger exception, you are contracting the scope of the privilege that should never be, um, retroactive. What's your position on whether or not the Communications involved, um, fraud or a crime, a pending crime, That while the legislature has shown they know what to do in that situation? I mean, you know, we have express exception to the attorney client privilege for a crime fraud exception. And my answer to you would be that may be a great idea. It's just that that's not the state of the rule right now. And you can't do that retroactively. So You can see that the communications, in fact involved communications about fraud or a criminal act. No. And, and, and that's not what the lower court found even so, um, if you look at the state brief at one point on page 15, the state's briefed without any citation. They say this conversation constituted joint criminal conduct, but that's not the fact finding below what, below the lower court noted that there were different interpretations of each thing that the wife and husband are saying to each other. And one in her interpretation is that he's innocent and didn't know that he was, that he was destroying criminal evidence when he, um, when he wipe the phone. And she's saying things like, um, you know, that, that if I question, I have to tell the truth. So, you know, we need the protection of the marital privilege. And, um, so who's, whose iPad Was that recorded this conversation? Do do we know that? I I don't remember exact. I think it's hers. I mean, she brought it with her. I think it's her iPad. And you know, the other reason why I think that the, a traditional rule speaks to testify, and yet there's never been a decision that that that, that, that answers the question raised by the state. Does it only cover testimony? I think that's because in the technological revolution, you're just not gonna have these scenarios where both spouses do everything they can to keep their conversation private. They go to a law firm, speak to a lawyer, are told their conversation will be protected by marital privilege. You know, intu things like iPad and all the listening devices in our phone that listen to everything we say possibly, maybe. Right? In fact, the lawyer even asked her to shut her phone down and getting it right. That's true. Yes, the lawyer did do that. And, um, and that's a, that was a good precaution on the part of the lawyer because you don't know when spouses are gonna turn each against each other. Like what happened in Palatir? In Palatir, the wife turned against the husband, I'm sure for very reason. 'cause she believed her daughter was sexually abused. Um, so our, our state about the exceptions, maybe good ideas, but that should be through rulemaking or it should be through a non-active position. So why is the reliance interest important? I'm gonna yell light, I'm gonna try out one more thought. Um, the reliance interest is important because the idea that a married couple can have a zone of privacy for their communications has never been more important than it is today. Okay? We know from cases like ELL that courts celebrate marriage is an incredibly important institution for that being not just of people, but the whole society. Um, and then we know, I'm sure familiar with the book Bowling Alone and the concept that people don't have, many adults don't have a single person who's a confident to them other than their own spouse. So, you know, we should not be hastily contracting the privilege with, with, by making new exceptions. When a spouse, I've been married for 25 years and I'm acutely aware that's the one person besides an attorney that I can speak to and hope to have, um, a zone of privacy over that conversation. And so the court, whatever it does, it should not be retroactive because the court should be very hesitant to abruptly shrink a privilege that is really important to our society. Thank you. Attorney Reserve. Two minutes. Attorney trick. Oh, sorry. May it please the court. My name is Mary Trick and I'm here, um, on behalf of the state. Um, I was gonna start by talking about the history of the spousal privilege, but I think that we, uh, both parties here agree that the history of the spousal privilege had to do, um, and it was designed to prevent a spouse from having to choose between their marriage and perjury, right? It was designed to prevent a spouse from being placed on the sand, um, and basically put between a rock and a hard place from that common law base. New Hampshire's spousal privilege developed, um, had and has remained effectively unchanged for 150 years. And it says that spouses shall not be allowed to testify when that testimony will lead to violations of marital confidence. Mari, the marital privilege precludes testimony, nothing more. And the question before this hit court, um, and the question before the court below in this case, um, had nothing to do with people being allowed or not allowed to testify, and therefore, rule 5 0 4 has no application. I wanna talk a little bit about the phrase marital confidences because it's, I think it's important that it's not, that these aren't confidential communication. So if I talk to a lawyer that information is confidential, that lawyer cannot tell anybody else about what I, that's about what I told them. The same thing is if I go to a doctor or if I go to a priest, um, those professionals have an obligation to maintain that confidence and cannot disclose that information. A marital confidence is different. I might tell my spouse something in confidence and expect that they won't tell anybody about it, but I don't have any legal right to prevent my spouse from telling someone about it. I think that it's important to understand that at its base, marital confidences are not the same as the other kinds of, um, communications that we protect, um, underprivileged, underprivileged doctrine. And that's why the privileges in the rules of evidence and, um, used to be in our statutes are different. The language is fundamentally different. We're talking about attorney-client privilege, we're talking about a religious privilege than it is we're talking about a spousal privilege. If there was a recording of the Conversation between a client and an attorney, how would the analysis, uh, play out? Well, I think the attorney-client privilege is fundamentally different. So it really would have nothing to do with the way it plays out here. If there's a, if there's simply a, a accidental recording of someone's conversation with their lawyer, that's not gonna be admissible, absent some other reason you might be able to, to get that in. Can, can you respond to the argument that 6 32 8 5 reflects that legislative, the legislature's evolved understanding of what is at issue here, and specifically the reference in that statute to disclosure communications? Sorry, can you say that again? The argument just heard that 6 32 85 reflects the legislature's evolved understanding of what the marial privilege is all about. And, and it specifically refers to, uh, laws attaching a privilege against the disclosure of communication, Communication. So the case law for a long time in New Hampshire, um, has defined marital confidences to be something communicated from one spouse to the other, um, simply and specifically as husband and wife, and not what would be communicated to any other person under the same circumstances. So communication is an element of the spousal privilege because that is how marital confidences have been defined. So I don't think the discussion of something as, uh, protecting communications changes the fact that the spousal privilege is limited in its boundaries and always has been limited in its boundaries to testimony. And this is not testimony. So, uh, if, if the, the wife here had written a letter to her husband that had been interceded, that the state that attributed inculpatory statements to the defendant, that gets to come in, Well, there's plenty of other rules that might, that objections that you could raise, but I don't think it's protected by spousal privilege. That doesn't necessarily mean it's admitted to evidence. And I think that's an important point in this case. As related to this, uh, this particular evidence, the only ruling before the court in this appeal is a ruling on a motion in limine that this recording is not excludable under the spousal privilege. It hasn't been admitted into evidence. We don't know if there are other foundational objections or hearsay objections or any other number of objections that someone might raise to the ion of this evidence. So who's gonna authenticate the, uh, the voices on the tape, for example? Well, that's a question for the prosecutor, and if the prosecutor can't authenticate it, it won't be admitted into evidence. That's not the sort of the question. This is an interlocutory appeal from a motion in limine where the defendant requested that this be excluded under merital privilege, right? So all the other evidentiary questions are not at issue in this appeal. So Mr. Lost said that the, the testimonial component has been, uh, the analysis now is divorced from that and testimony isn't the key, but you, you Disagree? I strongly disagree. Yes. Yes. And, and, uh, Pelletier doesn't undermine your position? I don't believe so. So paler, um, so I think paler stands for the proposition, um, that marital harmony is not gonna be prioritized over the safety of children in the family home. So the first issue in pelletier was whether or not the consensual sexual activity of a married couple was a marital confidence. That's, that issue is really not at play in this case, right? And so the secondary issue in Pelletier was whether or not there should be a public policy exception that would allow this in, that would overcome the, the public policy in favor of a spousal privilege. And in the court said that it's contrary to public policy to allow the spousal privilege to prevent the disclosure relevant information, um, concerning allegations of sexual abuse of children living in a marital home. In other words, marital harmony, which we're trying to promote through marital privilege, is not more important than the physical safety of the children who are forced to live in that marital home. Um, and so I do you agree That that public policy concern doesn't apply to Mrs. Bradley though, right? I think it does apply to Mrs. Bradley. I think, I don't think the state is not asserting that Palatir is controlling precedent here, but I think the same policy, um, underlies both cases, right? Um, it's the state position in this court can listen, has the recording and can listen to the recording for itself. Um, but it's a state's position and I think the court's order generally agrees that these, that this couple on this recording is attempting to prevent authorities, um, from discovering the abuse of their children in their home, that they're trying to get their story straight because they know they're about to be questioned and their house is about to be searched. Um, and they're trying to get their story straight. Um, and so the public policy that says that we don't apply the spousal privilege, um, when it, uh, would shield parents, um, from not protecting their children in their home app applies, uh, equally. So what do We make of the precautions that the Bradleys and their lawyer made in trying to protect this conversation? Okay, So How does that affect our analysis? Um, so I think I would say two things. Well, I guess the, uh, the defendant here asserts that there's some sort of a reliance interest, right? That they tried really hard. I would push back on that factual finding to start. Um, in this case they were at the lawyer's office and the lawyer told him to shut off their elect. I think he said phone, but I think it's reasonable to assume he meant you shut off your electronic devices, don't silence them, shut them off. Um, the did not do that. They chose not to do that. Um, and then the lawyer said there's a spousal privilege. It's not perfect, it's subject to exceptions. So I don't think any reliance on there being a, for sure spousal privilege was reasonable because that's not what the lawyer said. Lawyer said there's generally a spousal privilege, but it's subject to exceptions. Um, that's a correct statement and not, um, reasonable reliance. So I just, I think as a factual matter, disagree that this couple did everything that they could and behaved entirely reasonably to keep their conversation confidential. Um, but again, um, I don't know that any of that, that this court needs to reach any of that because the plane on its face reading of the statute says, spousal privilege says you can't testify in these circumstances. So the, the part of the state's argument is, uh, public policy weighs against the exclusion of the recording from evidence. So are, are you saying that we need to turn to and invoke public policy in order to, uh, adopt the state's position? No. So I think there's two questions here, right? There's the question of whether or not the spousal privilege is even relevant in these circumstances, and there's a question of whether an exception applies. So I, I've been sort of thinking about it like hearsay, right? Before you ask if a hearsay exception applies, you ask if, if it's hearsay right here before you ask if an exception of the spousal privilege applies, you have to ask whether or not there's anything to have an exception from, right? Does the spousal privilege apply at all? So it's a state's position that adds to step one spousal privilege does not apply because nobody is being forced to or asked to or trying to testify against or for their spouse. That can be the end of the story. But even if that not true, then there are the other, the crime fraud exception and the public policy exception. Um, and I do wanna touch briefly, um, on the crime fraud exception and make two points. But Where do we find, just back to justice passive, where do we find The public policy exception? Where is that? So I think there are two public policy exceptions. So I think Peir says, um, that you can make public policy exceptions. And I think, But that would be creating a new exception. Do we come within the policy exception that was articulated in palate Tier? No, I think we would have to expand the pier public policy exception. Um, and then there's the crime fraud exception, this, which this court has never recognized, but which this court has never said, it doesn't apply either, right? There's just no case law on the point. So this isn't, but In another context, when there's crime fraud exceptions, those are expressed in the rule. Yes, yes. Um, but the crime And so shouldn't, so you're asking us to add words to the, to the rule and the statute that don't exist. Well, I think that Palantir says for public policy reasons, sometimes choose not to apply the spousal privilege even when it would apply. So I don't, I think it's a nuanced distinction, but I Don't think so. Why wouldn't that be applied prospectively if there's no express articulation of crime fraud as we have in other ary rules? Okay, so two things. First, I think that the, the rules of this court has laid out from when you apply things prospectively require, um, this court to be expressly overturning clear prior precedent. And while there's no prior precedent that establishes these things, there's also no prior precedent that says they don't. Right? So there's no overturning of clear prior precedent here. Um, and, and my second point is, is the state's not even really asking the court to do any of those things to expand the exception at all. The defendant is the one asking the court to expand the exception, because the exception does not apply to anything but testimony and has not for 150 years. Um, and so the state is not here asking this court to expand pier or apply a crime for fraud exception because they don't have to. Right? I understand. But we're, we're beyond the hearsay question. Yes. We're in, this is something other than the Testimony. And I think that the, it is a near universal rule in the federal courts that the crime fraud exception applies to the federal version of the spousal privilege. There's more than one spousal privilege. There's more than one marital privilege in federal court. But the federal court marital privilege that aligns with this one, um, there, it's a near universal rule that the federal, um, that the crime product exception applies. And so I think the fact that this court has said nothing, does not, it's, it's not a close question as to whether or not this is a possible exception that could apply to the marital, the merit privilege. So in federal court, there's two, to be clear, there's two, there's a spousal testimonial privilege, which basically expands the defendant's right to not testify against himself to spouses. So, um, the spouse can never be called to testify about anything. The spouse just can't be called to testify against, um, the defendant. And that privilege is held only by the testifying spouse. So New Hampshire has no equivalent of that, um, of that privilege. The marital communications privilege, um, in federal court is the one that's analogous to New Hampshire's privilege. Um, and that one, uh, the federal courts have un unanim have nearly universally said, um, has a crime product. So back to the policy exception. Yeah. So maybe we get over the, Not the crime fraud policy. Not the crime fraud. Yep. What, what are the contours, the policy exception that you're, the state is Asking us. I, I think if the evidence sought to be protected by the marital privilege is relevant to sexual, uh, to, to the crime of sexual assault against a child that leaves in the family home, then it's not protected by privilege. Thank you. Thank you very much. Attorney Trooper? Did I actually, did I actually end up having two minutes? Um, so, so very briefly, um, the last, the, the key phrase in the lower court decision is quote, this court finds for public policy reasons. This conversation was not the type of communication New Hampshire rule, evidence 5 0 4 speaks to protect. And as soon as we see that we're talking about public policy reasons, that goes to all the concerns that, that some of you have raised that wait, okay, it might be a good idea for public policy. Um, but applying it, we're changing the rule retroactively. And that is fundamentally unfair. And that's all I have. Thank you. Thank you very much. Uh, state invites counsel and.