Stephen White: Blinded

My indiscretion with Lauren was a gray area in confidentiality that I usually tried to avoid. These “I have a patient who…” conversations happen all too frequently between psychotherapists and colleagues or laypeople. Most mental health professionals engage in them with a rationalization that if they do not reveal sufficient details to allow the listener to identify the patient in question, then the letter of the patient’s confidentiality has not been violated.

Lauren’s soup bowl was empty when I completed my exposition. I ladled her some more.

“So what are you going to do?” she asked me.

“Exactly what she wants me to do, I guess. As soon as I’m sure she has a safe place to stay, I’ll call the police in the town where she was living and tell them what she told me.”

“Yeah?”

“What do you think will happen when I do?” I asked.

“Depends on whether or not the cops believe you.”

“And what does that depend on?”

“On whether she’s given you any information that coincides with what the local cops already know about the crime. If your client knows something that isn’t in the public record, I would predict that they would take you quite seriously.”

“And then what?”

“I’m speculating, okay? If they believe her story, they would either ask her to travel back there so they could talk to her, or they would send somebody out here to interview her. Maybe him, too-her husband-if he’s stupid enough to be accommodating. It all depends on what they’ve been able to develop at their end and how it matches up with what she knows. But it’s hard to predict. You know what these cold cases are like. Detectives lose interest. Evidence gets lost. Witnesses die or move away. People forget.”

“She said she’d testify against him.”

“Sorry,” Lauren said. “It’s not that simple.”

“I don’t understand.”

“Spousal privilege.”

“So?”

“Spousal privilege is a trickier thing than most people realize. Each spouse has a privilege not to disclose marital communications, and-this is the part that people don’t know-they also have a privilege to prevent their spouse from disclosing marital communications.”

“Really? I thought spousal privilege meant that spouses couldn’t be compelled to testify against each other. Well, she’s willing to testify. Eager even. Her testimony would be voluntary.”

“Like I said, it’s not that simple. He could assert his privilege and prevent her from testifying. But there are some circumstances that would allow his privilege to be overridden.”

“Teach me.”

“There are statutory exceptions to the spousal privilege evidence rules. Every state I’m aware of has a battering and child-abuse exception. If one spouse batters the other or injures a child, the injured spouse is free to testify about that against the batterer. But the case you’re describing is the murder of a third party, not domestic violence. Take Colorado. If the homicide you’re talking about had happened in Colorado, spousal privilege wouldn’t apply at all, because the case that’s in question involves a serious felony and in Colorado all spousal privilege is waived for serious felonies. Other states have different spousal privilege statutes, with different exceptions. Some have felony exceptions, like Colorado, some don’t. Ultimately, a lot is going to depend on what state this homicide of yours happened in.”

“Please go on.”

“In many states, including ours, spouses can’t testify against each other without the consent of the other spouse. But in some states there’s no felony exception to that rule. If your client is from one of those states, unless her husband granted his consent-which I think we can agree is unlikely if she’s about to accuse him of murder-she wouldn’t be allowed to testify against him, even for an alleged homicide.”

Emily walked over, wanting her ears scratched. I obliged. “Do you know how the law works in any other states?”

“Any one in particular?” Lauren teased.

“Sorry, I can’t tell you which state this is about. I wish I could. What other ones do you know?”

“I passed the California bar, remember?”

Lauren and I were both on our second marriages. Her first had taken her briefly to California. We didn’t talk about our exes much, so her reference to her time in California hung in the air like the scent of burnt garlic.

“Okay, what’s California ’s spousal privilege statute? Do you remember that kind of detail?”

“It was a lot of years ago, but my memory is that it’s one of the more conservative laws, or liberal laws, depending, I guess, on whether you’re a prosecutor or a defense attorney. I think there’s a mutual consent rule in California, but I don’t believe that there’s a felony exception.”

“Which means that, hypothetically, if this old murder took place in California, my client couldn’t testify against her husband without his consent.”

“If I’m right, that’s exactly what it means.”

I figured she was right; my experience was that Lauren was usually correct about matters of the law. I thought about the complications that her facts presented and explained, “I was going to run it by Sam today. To see what this would be like from a police point of view-you know, to get a call like the one I’m about to make. But I decided that it wasn’t a good idea.”

“No, it wouldn’t be a good idea for him. Not now, given his condition. I’m not sure it’s even a good idea for you. You may not want to be in the middle of this, Alan. Think it through carefully.”

“Why? What do you mean?”

“Let’s say it turns out that your client is right about… everything that she believes her husband did. If that’s the case, then you know three things about her husband. One, that he’s a killer. Two, that he’s a batterer.”

She raised her spoon to her mouth.

“And number three?” I asked.

Lauren swallowed, sat back, and sipped some Riesling before she answered. “That he’s not going to be happy with you for turning him in to the police.” She reached across the table and took my hand. “And Emily and Grace and I don’t know what we’d do without you.”

“Anvil too,” I said.

“Yeah, Anvil too.”

“Why don’t you rest a little bit? I’ll go wake Grace.”

Lauren stood up. She probably didn’t know that I was checking her balance when she did. She probably didn’t know that I would be examining her gait as she left the room.

I stopped her before she cleared the doorway. “Does spousal privilege restrict the police in any way? Does the mutual consent part of the spousal privilege law apply to their investigation? If she tells the police things now without her husband’s consent, could it taint future evidence?”

“Why would you think that’s a problem?”

“Fruit from a poisonous tree?”

“Doesn’t apply. Spousal privilege is limited to testimony in court. During the investigation, the police can find out whatever they can find out. They can talk to either spouse about the other. But… keep in mind that I haven’t reviewed the case law or the precedents recently. You might want to talk to a defense attorney-someone like Cozy or Casey-before you decide what to do next.”

Cozy Maitlin and Casey Sparrow were criminal defense attorneys whom Lauren and I knew well. Professionally speaking, too well.

“I thought I just did talk with an attorney.”

“I told you the legal issues involved, Alan. I didn’t give you any advice.”

“Well, may I have some advice?”

She thrust out a hip. The move was erotically provocative, all in all very unlawyerlike. “A little more salt in the soup next time. But the Riesling”-she blew me a kiss-“was perfect.”