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Brown v. State6/9/2000
endant had himself disclosed a significant, if twisted, version of his conversation with his spouse. Id. at 365-66.
In Cummings, the defendant also was convicted of murdering two people. The evidence established that the murders took place in the home where the defendant and his wife lived. He and his wife each claimed that the other committed the murders. Cummings was charged with the murders and his wife was charged as an accessory. During opening statement, defense counsel asserted that the wife was the killer and that the defendant was the accessory - simply "trying to protect a loved one." Cummings, 785 P.2d at 922. Based on that statement, the court found that he had waived his privilege under Colorado law to preclude adverse testimony by his spouse. The privilege invoked was not the one dealing with confidential communications. Nonetheless, citing Worthington and a number of Colorado decisions finding that the privilege asserted was waivable, the court held that " y accusing his wife of the murders, the defendant invited a response which necessarily could have come only from her." Id. at 927.
Neither of those cases supports a finding of waiver in this case. The waiver in Worthington was based essentially on a finding that the defendant had himself disclosed a version of the conversation, and he could not then complain when the wife was allowed to give her version of it. Self-disclosure of an otherwise confidential communication is generally regarded as a waiver of the privilege. See 8 Wigmore, supra, § 2340, at 671; McCormick, supra, § 83, at 336; Stone & Taylor, supra, § 5.12, at 5-28. See also State v. Bledsoe, supra, 325 S.W.2d 762, 766 (when defendant testifies to confidential marital communication from wife, no error in allowing wife to testify in rebuttal). Nothing said by petitioner or his attorney prior to Ms. Brown's testimony could be taken as revealing any part of the conversations testified to by Ms. Brown. Worthington is wholly inapposite.
Cummings, with all due respect to the Colorado court, is not particularly well-reasoned. It begins with a far more general statement, taken from an earlier case, that the holder of the privilege "will not be permitted to `absolve himself from liability and at the same time assert the privilege in order to prevent the other party from ascertaining the truth of the claim.'" Id. at 926 (quoting Clark v. District Court, 668 P.2d 3, 8 (Colo. 1983)). Clark had nothing to do with the privilege for confidential marital communications. The issue was whether a defendant in a wrongful death action waived his psychiatrist-patient privilege by denying liability, and the court held that he had not done so. The court noted that, when the privilege holder asserts his or her physical or mental condition as the basis of a claim or defense, the person implicitly waives any claim of confidentiality respecting that condition, but held in Clark that the defendant had done nothing to waive his privilege. Apart from Worthington, the other cases cited by the Cummings court all dealt with waivers based either on a failure to object to the evidence or on the person himself (or herself) offering evidence of the communication.
The State makes too large a leap in arguing from these cases the broad proposition that a "my spouse did it" defense, however asserted, suffices to waive the privilege afforded by § 9-105. Depending on the circumstances, a waiver may be found from a failure to object or from a voluntary self-disclosure of the conversation, but a "my spouse did it" defense itself does not invoke a waiver. In this case, although petitioner did not immediately object to Ms. Brown's statement on the ground of privilege, neither the Circuit
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