arkansasmimi
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Judges Order beginning on page 25/29
To begin, the Court is not convinced by the State's interpretation of Rule 504(d). That
section reads as follows:
(d) Exceptions. - There is no privilege under this rule in a proceeding in which one [1]
rpo6. is charged with a crime against the person or property of (1) the other, (2) a child
oleither, (3) a person residing in the household of either, or (4) a third person committed
in the course of committing a crime against any of them.
The privilege is also destroyed where the purportedly confidential communication is
overheard by or meant to be shared with a third party. Arkansas Rule of Evidence 510 holds that
"[a] person upon whom these rules confer a privilege against disclosure waives the privilege if
he or his predecessor while holder of the privilege voluntarily discloses or consents to disclosure
of any significant part of the privileged matter." Where the Defendant has shared information
with any third party that he alleges is a confidential communication, he has waived his privilege
with respect to that statement, and it will be admitted. See, e.g., Dansby v. State, 338 Ark. 697
(1 999), MacKool, supra, at 447 -448.
Additionally, the Court is aware of and will apply the holding of United States v. White,
2009 U.S. Dist LEXIS 15906. That case notes that "the Eighth Circuit Court of Appeals has
approved the Joint criminal activity' exception to the privilege" ld, at27, citing United States v.
Evans, 966F.2d398,401 (8th Cir. 1992). Because the defendant in White was involved in a
drug conspiracy with her husband, the United States District Court for the Northem District of
Iowa, Westem Division, found that any alleged confidential communications did not apply if
they were related to ongoing criminal activity. ld, at28.
The Defendant's wife will be permitted to testify against him, and the defense's Motion
is essentially denied. More specifically, under the precedent cited by this Court, Lowery may
testify to anything she saw, heard, or observed that was not a confidential communication. If her
testimony does involve a confidential communication made during the joint criminal activity of
the pair, that testimony will be admitted under the'Joint criminal activity" exception to the
marital privilege. If her testimony involves a confidential communication made prior to the joint
criminal activity of the pair, that communication will not be allowed unless the State can show it
was made in the presence of or disclosed to a third party.12
12>12 The State has submitted three compact discs containing interviews with the Defendant where
he is alleged to have revoked the confidentiality of statements he made to Lowery. The Court has
reviewed all of this material, and his only mention of Lowery involves extramarital affairs he
participated in. Nothing in these interviews suffices to waive any confidential communications of
which the Court is aware.
To begin, the Court is not convinced by the State's interpretation of Rule 504(d). That
section reads as follows:
(d) Exceptions. - There is no privilege under this rule in a proceeding in which one [1]
rpo6. is charged with a crime against the person or property of (1) the other, (2) a child
oleither, (3) a person residing in the household of either, or (4) a third person committed
in the course of committing a crime against any of them.
The privilege is also destroyed where the purportedly confidential communication is
overheard by or meant to be shared with a third party. Arkansas Rule of Evidence 510 holds that
"[a] person upon whom these rules confer a privilege against disclosure waives the privilege if
he or his predecessor while holder of the privilege voluntarily discloses or consents to disclosure
of any significant part of the privileged matter." Where the Defendant has shared information
with any third party that he alleges is a confidential communication, he has waived his privilege
with respect to that statement, and it will be admitted. See, e.g., Dansby v. State, 338 Ark. 697
(1 999), MacKool, supra, at 447 -448.
Additionally, the Court is aware of and will apply the holding of United States v. White,
2009 U.S. Dist LEXIS 15906. That case notes that "the Eighth Circuit Court of Appeals has
approved the Joint criminal activity' exception to the privilege" ld, at27, citing United States v.
Evans, 966F.2d398,401 (8th Cir. 1992). Because the defendant in White was involved in a
drug conspiracy with her husband, the United States District Court for the Northem District of
Iowa, Westem Division, found that any alleged confidential communications did not apply if
they were related to ongoing criminal activity. ld, at28.
The Defendant's wife will be permitted to testify against him, and the defense's Motion
is essentially denied. More specifically, under the precedent cited by this Court, Lowery may
testify to anything she saw, heard, or observed that was not a confidential communication. If her
testimony does involve a confidential communication made during the joint criminal activity of
the pair, that testimony will be admitted under the'Joint criminal activity" exception to the
marital privilege. If her testimony involves a confidential communication made prior to the joint
criminal activity of the pair, that communication will not be allowed unless the State can show it
was made in the presence of or disclosed to a third party.12
12>12 The State has submitted three compact discs containing interviews with the Defendant where
he is alleged to have revoked the confidentiality of statements he made to Lowery. The Court has
reviewed all of this material, and his only mention of Lowery involves extramarital affairs he
participated in. Nothing in these interviews suffices to waive any confidential communications of
which the Court is aware.