holding that the dictation of a letter to a secretary renders the communication non-confidentialSummary of this case from Sewell v. State
Argued December 12, 1933. Decided January 8, 1934.
1. In the absence of congressional legislation on the subject, the admissibility of testimony in the federal courts in criminal causes, is governed by common law principles, as interpreted and applied by those courts in the light of reason and experience. Funk v. United States, 290 U.S. 371. P. 12. 2. The basis of the rule of evidence excluding proof of confidential communications between husband and wife, is the protection of the marriage relation. P. 14. 3. As the privilege suppresses relevant testimony, it should be allowed only where it is plain that marital confidence can not otherwise be reasonably preserved. Pp. 14, 17. 4. A confidential communication by husband to wife through the medium of his stenographer, held admissible, upon proof of it by the stenographer testifying from the stenographic notes. P. 16. 64 F.2d 556, affirmed.
Mr. George E. Flood, with whom Messrs. S.J. Wettrick and H. Sylvester Garvin were on the brief, for petitioner.
The state statute preserves the common-law privilege of communications from husband to wife.
There is a conflict in the decisions as to the admissibility of privileged communications where testimony thereof is procured from witnesses other than husband or wife, attorney and client, or physician and patient. This turns upon whether the particular court adopts one or the other of two tests: First, that if the communication originates in confidence and under circumstances intended to be privileged, and if the privilege is not consciously surrendered, the privilege will be enforced and the communication excluded; or, second, that regardless of the privileged origin and confidential nature, admissibility is purely a matter of custody of the communication; if it has been filched by any means, surreptitious or otherwise, the communication will be admitted. The first line of cases seek to consult the nature and the purpose of the communication and to carry out the policy of the principle. The second line of cases disregard the purpose and the policy and erroneously treat the privilege as if it were in derogation of the common law, seizing upon any circumstance, however slight, in order to defeat the privilege.
Among the cases repudiating this false doctrine are: Gross v. State, 61 Tex.Crim. 470; Liggett v. Glenn, 51 F. 381; Mercer v. State, 40 Fla. 716; Scott v. Commonwealth, 94 Ky. 511; Henderson v. Chaires, 25 Fla. 26; Selden v. State, 74 Wis. 271; Wilkerson v. State, 91 Ga. 729; State v. McKie, 165 Ga. 210.
The privilege extends not only to the attorney, but to the attorney's secretary, stenographers or clerks. Taylor, Evidence, §§ 920, 946. Cf. Plunkett v. Coblett, 1804, 29 How. St. Tr. 71; Solomons v. Chubb, 1852, 3 Carr K. 75; Forbes v. Samuel, 1913, 3 K.B. 719, 82 L.K.J.B. 1135; Taylor v. Foster, 1825, 2 C. P. 195, 172 E.R. 89; DuBarre v. Livette, Peake N.P.C. 78; Parkins v. Hawkshaw, 2 Stark. 239, 171 E.R. 633; King v. Upper Bodington, 1826, 5 L.J.M.C. 10 (1827); Wartell v. Novograd, 48 R.I. 296; Hunt v. Taylor, 22 Vt. 556; Sibley v. Waffle, 16 N.Y. 180; In re Arnott, 1888, 60 L.T.N.S. 109; State v. Brown, 1896, 2 Marv. 380.
Although the privilege between physician and patient is statutory, the courts do not construe the statutes strictly, as in derogation of the common law, but very uniformly include within the privilege not only the patient and physician, but communications made to the physician's nurse, technician or X-ray specialist, or a communication made by the patient to the physician in the presence of any of the physician's necessary assistants. Culver v. Union Pacific, 112 Neb. 441; Power Light v. Jordan, 132 So. 483; Toole v. Franklin Investment Co., 158 Wn. 696; Chicago, Lake Shore Ry. Co. v. Walas, 192 Ind. 369; Colorado Fuel Iron Co. v. Cummings, 8 Colo. App. 541; Owens v. Kansas City, C.C. S.J. Ry. Co., 225 S.W. 234; Sparer v. Travelers, 173 N.Y.S. 673; Price v. Standard Life A. Ins. Co., 90 Minn. 264.
Federal cases support the rule that a privileged communication remains privileged, irrespective of custody. Bowman v. Patrick, 32 F. 368. Cf. Liggett v. Glenn, 51 F. 381; Drier v. Continental Life, 24 F. 670; Connecticut Mutual v. Schaefer, 94 U.S. 457.
For a recent expression upon the privilege between husband and wife. see New York Life v. Ross, 30 F.2d 80.
The stenographer in this case was an agent and representative, and not a stranger or third person. Wigmore, Evidence, 2d ed., § 2339. Distinguishing id., § 2336; Cotton v. State, 87 Ala. 75; People v. Dunnigan, 163 Mich. 349; Pearce v. Pearce, 1847, 16 L.J.Ch. 153; State v. Wilkins, 72 Or. 77; State v. Nelson, 39 Wn. 221; State v. Falsetta, 43 Wn. 159; Commonwealth v. Everson, 123 Ky. 330; State v. Young, 97 N.J.L. 501; Hammons v. State, 73 Ark. 495; Hopkins v. Grimshaw, 165 U.S. 342.
Under the great weight of authority today, the dictation of libelous statements to a stenographer, or the delivery of a written libelous communication to a stenographer, clerk, typist, or agent, do not constitute delivery or publication and are deemed privileged. This was not always the case. It is a modern growth and development in the law. See Pullman v. Hill, 1 Q.B. 524; Boxius v. Goblet Freres, 1894, 1 Q.B. 842; Lawless v. Anglo-American Cotton Co., L.R. 4 Q.B. 262; Edmondson v. Birch, L.R. 1 K.B. 371, 1907; Osborn v. Boulter (C.A. 1930), 2 K.B. 226.
Many American cases have adopted the rule of Edmondson v. Birch, supra, repudiating Pullman v. Hill, supra, notably such cases as Globe Furniture v. Wright, 265 F. 873; Owen v. Ogilvie, 53 N.Y.S. 1033; Cartwright-Caps Co. v. Fischel Kaufman, 113 Miss. 359; Flynn v. Western Union Tel. Co., 199 Wis. 124; Prince v. Holland N.A. Mortgage Co., 107 Wn. 206.
Privilege can not be defeated by secondary proof. Dawkins v. Rokevy, 1873, 44 L.J.R.Q.B. 63 (Ex.); Atwood v. Chapman, 1914, 3 K.B. 275; Chatterton v. Secretary of State, 1895, 2 Q.B. 189; Bowman v. Norton, 1931, 5 C. P. 177; Taylor, Evidence, p. 622.
Courts will not sanction evidence violative of public policy or principles of law. See opinion of Justice Brandeis in Olmstead v. United States, 277 U.S. 438; Gouled v. United States, 255 U.S. 298; Boyd Case, 116 U.S. 616; Weeks Case, 232 U.S. 383; Amos Case, 255 U.S. 313; Silverthorne Case, 251 U.S. 385.
Assistant Solicitor General MacLean, with whom Solicitor General Biggs and Messrs. Harry S. Ridgely and W. Marvin Smith were on the brief, for the United States.
The law applicable in determining the question of privilege is the law of Washington at the time Washington was admitted into the Union as a State.
Petitioner's stenographer was competent to testify as to the contents of the letter in question. Code of Washington Territory, 1881, § 392; Remington's Rev. Stats., Vol. 3, § 1214; State v. Nelson, 39 Wn. 221; State v. Rasmussen, 125 Wn. 176.
The Washington decisions are clearly in accord with the great weight of authority, whether the privilege be urged under the common-law rule or under modern statutes. Wigmore, Evidence, 2d ed., Vol. 5, § 2336, pp. 89-90; § 2339, p. 98; § 2336, p. 77; Chamberlayne, Evidence, Vol. 5, pp. 5294-5296; Roscoe, Criminal Evidence, 13th ed., p. 104; Jones, Evidence, 2d ed., p. 920; Greenleaf, Evidence, 16th ed., p. 392; Phillips, Evidence, 5 Amer. ed. p. 64, note 4, pp. 65-66; annotation to Nash v. Fidelity-Phenix Fire Ins. Co., 106 W. Va. 672, appearing in 63 A.L.R. pp. 101, 108 et seq., notes II and III; 28 R.C.L. p. 528. par. 117; 40 Cyc., pp. 2358, 2359. See also Dickerson v. United States, 65 F.2d 824, cert. den., 290 U.S. 665; United States v. Guiteau, 1 Mackey (D.C. Rep.) 498.
The basis of the Washington and other like decisions was well stated in State v. Wilkins, 72 Or. 77. See also People v. Hayes, 140 N.Y. 484.
As the tendency of the privilege is to prevent the full disclosure of the truth, it should be strictly construed. Lloyd v. Pennie, 50 F. 4; Tutson v. Holland, 50 F.2d 338; O'Toole v. Ohio German Fire Ins. Co., 159 Mich. 187.
That the third person rule applies regardless of the intimacy of the relation between the person who acquires knowledge of a communication between a husband and wife and the spouse who makes the communication, finds ample demonstration in the cases. Hopkins v. Grimshaw, 165 U.S. 342; State Bank v. Hutchinson, 62 Kan. 9; Nash v. Fidelity-Phenix Fire Ins. Co., 106 W. Va. 672; Insurance Co. v. Shoemaker, 95 Tenn. 72; Commonwealth v. Everson, 123 Ky. 330; Martin v. Martin, 267 Mass. 157; Commonwealth v. Smith, 270 Pa. 583; Drew v. Drew, 250 Mass. 41; State v. Young, 97 N.J.L. 501.
The cases cited by petitioner which hold that the privilege between attorney and client extends to an attorney's clerks, secretaries, and stenographers are obviously not apposite. Wigmore, Evidence, Vol. 5, § 2301.
Those decisions relied upon by petitioner which hold that a business man or merchant does not publish a libelous statement simply by dictating it to a stenographer are not in point. Their ratio decidendi was clearly explained in Osborn v. Boulter (C.A. 1930), 2 K.B. 226, 236.
This case comes here on certiorari to review a ruling of the District Court for Western Washington in a criminal trial, admitting in evidence against the accused, the petitioner here, a statement contained in a letter written by him to his wife, but proved by the testimony of a stenographer, reading from her notes, to whom petitioner had dictated the letter and who had transcribed it. The ruling was upheld and the conviction sustained by the Court of Appeals for the Ninth Circuit, 64 F.2d 566, which adopted as the test of admissibility of the evidence its interpretation of the statute in force in the territory of Washington at the time of its admission to statehood. § 392, Code of Washington, 1881; see State v. Nelson, 39 Wn. 221; 81 P. 721; State v. Rasmussen, 125 Wn. 176; 215 P. 332.
During the present term this Court has resolved conflicting views expressed in its earlier opinions by holding that the rules governing the competence of witnesses in criminal trials in the federal courts are not necessarily restricted to those local rules in force at the time of the admission into the Union of the particular state where the trial takes place, but are governed by common law principles as interpreted and applied by the federal courts in the light of reason and experience. Funk v. United States, 290 U.S. 371. If any different rule with respect to the admissibility of testimony has been thought to apply in the federal courts, Wigmore on Evidence, 2d ed., § 6; compare Alford v. United States, 282 U.S. 687, it is clear that it should be the same as that governing the competence of witnesses. So our decision here, in the absence of Congressional legislation on the subject, is to be controlled by common law principles, not by local statute.
The statement to which the witness was permitted to testify in the present case was a relevant admission by petitioner, probative of his guilty purpose or intent to commit the crime charged. It was therefore rightly received in evidence unless it should have been excluded because made in a communication to his wife.
The government insists that confidential communications between husband and wife are privileged only when the testimony offered is that of one of the spouses, and that the privilege does not exclude proof of communications between them, however confidential, by a witness who is neither the husband nor the wife. The question thus raised remains open in the federal courts. But we find it unnecessary to answer it here, for in the view we take the challenged testimony to the communication by the husband to his wife is not within the privilege because of the voluntary disclosure by him to a third person, his stenographer.
Mr. Justice Miller, sitting as Circuit Justice, excluded evidence of confidential communications in a letter written by the husband to his wife, found by the latter's administrator among her papers, although proved by a third party witness. Bowman v. Patrick, 32 F. 368; cf. Lloyd v. Pennie, 50 F. 4. A like decision was reached by the Circuit Court of Appeals for the Sixth Circuit, in New York Life Ins. Co. v. Ross, 30 F.2d 80. The Court of Appeals for the Eighth Circuit made the same ruling with respect to a communication between an attorney and client in Liggett v. Glenn, 51 F. 381, and a district court reached a similar conclusion with respect to communications between physician and patient in Dreier v. Continental Life Ins. Co., 24 F. 670. Compare a dictum in Hopkins v. Grimshaw, 165 U.S. 342, 351. It seems that many state courts rule that a communication between husband and wife, however confidential, may be proved by the testimony of a third person who has acquired knowledge of it, even though without the assent of the spouse making the communication, at least where the spouse to whom the communication was made is not responsible for the disclosure. Hammons v. State, 73 Ark. 495; 84 S.W. 718; Wilkerson v. State, 91 Ga. 729; 17 S.E. 990; O'Toole v. Ohio German Fire Ins. Co., 159 Mich. 187; 123 N.W. 795; State v. Wallace, 162 N.C. 622; 78 S.E. 1; cf. People v. Hayes, 140 N.Y. 484; 35 N.E. 951.
The basis of the immunity given to communications between husband and wife is the protection of marital confidences, regarded as so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administration of justice which the privilege entails. See Hammons v. State, 73 Ark. 495, 500; 84 S.W. 718; Sexton v. Sexton, 129 Iowa 487, 489, ff; 105 N.W. 314; O'Toole v. Ohio German Fire Ins. Co., 159 Mich. 187, 192; 123 N.W. 795; Wigmore on Evidence, 2d ed., § 2336. Hence it is that the privilege with respect to communications extends to the testimony of husband or wife even though the different privilege, excluding the testimony of one against the other, is not involved. See Gordon, Rankin Co. v. Tweedy, 71 Ala. 202, 210; Wickes v. Walden, 228 Ill. 56; 81 N.E. 798; Southwick v. Southwick, 49 N.Y. 510, 519; Wigmore on Evidence, 2d ed., §§ 2227, 2228, 2332, 2333.
Communications between the spouses, privately made, are generally assumed to have been intended to be confidential, and hence they are privileged; but wherever a communication, because of its nature or the circumstances under which it was made, was obviously not intended to be confidential it is not a privileged communication. See Caldwell v. State, 146 Ala. 141, 143; 41 So. 473; Parkhurst v. Berdell, 110 N.Y. 386, 393; 18 N.E. 123; Truelsch v. Miller, 186 Wis. 239, 249; 202 N.W. 352. And, when made in the presence of a third party, such communications are usually regarded as not privileged because not made in confidence. Jacobs v. United States, 161 F. 694; Cocroft v. Cocroft, 158 Ga. 714; 124 S.E. 346; cf. Linnell v. Linnell, 249 Mass. 51, 143 N.E. 813, with Freeman v. Freeman, 238 Mass. 150; 130 N.E. 220.
Here it is suggested that the voluntary disclosure to the stenographer negatives the confidential character of the communication. Cf. State v. Young, 97 N.J.L. 501; 117 A. 713. But we do not think the question which we have to determine is one of fact whether the petitioner's letter to his wife was intended to be confidential. We may take it that communications between husband and wife may sometimes be made in confidence even though in the presence of a third person, see Robin v. King, 2 Leigh (Va.) 140, 144; and that would seem especially to be the case where the communication is made in the presence of or through the aid of a private secretary or stenographer whose duties, in common experience, are confidential. Cf. Edmondson v. Birch Co.,  1 K.B. 371, 382. Accordingly the question with which we are now concerned is the extent to which the privilege which the law concedes to communications made confidentially between the husband and wife embraces the transmission of them, likewise in confidence, through a third party intermediary, communications with whom are not themselves protected by any privilege. Cf. Drew v. Drew, 250 Mass. 41; 144 N.E. 763.
Petitioner invokes the authority of those cases where the privilege granted to communications between attorney and client has been held to exclude proof of the communication by the testimony of a clerk present when it was made, see Sibley v. Waffle, 16 N.Y. 180, 183; Wartell v. Novograd, 48 R.I. 296, 301; 137 A. 776; Taylor v. Forster, 2 C. P. 195; cf. State v. Brown, 2 Marv. (Del.) 380, 397; 36 A. 458, and of those where the statutory privilege extended to the information gained by a physician from consultation with his patient has been deemed to exclude, by implication, proof of the condition of the patient by testimony of a nurse who attended the consultation. See Culver v. Union Pacific R. Co., 112 Neb. 441, 450; 199 N.W. 794; cf. Mutual Life Ins. Co. v. Owen, 111 Ark. 554; 164 S.W. 720. It is said that the stenographer here similarly stood in a confidential relationship to the petitioner and that the communication to her of the contents of petitioner's letter to his wife should, on grounds both of reason and convenience, be protected by the privilege which the law extends to confidential communications privately made between husband and wife.
We may assume for present purposes that where it is the policy of the law to throw its protection around knowledge gained or statements made in confidence, it will find a way to make that protection effective by bringing within its scope the testimony of those whose participation in the confidence is reasonably required. It may be that it would be of little worth to forbid the disclosure of information gained by a physician from the examination or consultation of his patient, if the nurse, necessarily present, could reveal it. See Culver v. Union Pacific R. Co., supra; Mississippi Power Light Co. v. Jordan, 164 Miss. 174; 143 So. 483. It may plausibly be urged that the privilege of attorney and client would be as often defeated as preserved if it did not draw within its sweep the testimony of clerks in the lawyer's office. See Sibley v. Waffle, supra.
But it is unnecessary now to determine the latitude which may rightly be given to the privilege which the law confers upon either of these relationships, for no considerations such as those suggested apply to material communications under conditions disclosed here. Normally husband and wife may conveniently communicate without stenographic aid and the privilege of holding their confidences immune from proof in court may be reasonably enjoyed and preserved without embracing within it the testimony of third persons to whom such communications have been voluntarily revealed. The uniform ruling that communications between husband and wife, voluntarily made in the presence of their children, old enough to comprehend them, or other members of the family within the intimacy of the family circle, are not privileged, Linnell v. Linnell, 249 Mass. 51; 143 N.E. 813; Cowser v. State, 70 Tex.Crim. 265; 157 S.W. 758; Fuller v. Fuller, 100 W. Va. 309; 130 S.E. 270, is persuasive that communications like the present, even though made in confidence, are not to be protected. The privilege suppresses relevant testimony and should be allowed only when it is plain that marital confidence can not otherwise reasonably be preserved. Nothing in this case suggests any such necessity.
We do not intimate whether in the present circumstances the wife's testimony, not offered against her husband, would likewise be freed of the restriction. Cf. Nash v. Fidelity-Phenix Fire Ins. Co., 106 W. Va. 672; 146 S.E. 726.