August 31, 2006

• One involuntary hobby of mine is spotting legal errors in the many television shows I watch.  Weeds is an interesting show on Showtime that I've gotten into this season (I might have to check out Season 1 now).  As the name implies, the main character is a suburban marijuana dealer, and at the beginning of this season she hooked up with a guy who turned about to be a DEA agent.  She broke up with him, but he independently figured out what she was, and still wanted to be with her.  To allay her fears that he was setting her up, he married her since that way he couldn't testify against her.  On these facts, that is incorrect.

  
  

  There are two different privileges which protect a wife from her husband testifying against her.  The first is the "marital communications privilege."  That allows a wife on trial to prevent her husband from testifying about anything she said to him during their marriage that she meant to keep confidential.  The second is the "refuse adverse testimony" privilege which allows a husband to refuse to take the stand in a trial where his wife is the defendant.  In one respect this is broader than the first privilege because the husband can refuse to testify at all against his wife about anything he knows about her.  But in a critical respect, it is narrower because only the husband (the testifying spouse) gets to decide where or not to invoke the privilege.  If the husband wants to testify, the wife can't stop him.

  
  

  So the situation here falls in the crack between the privileges.  The DEA agent's knowledge about the wife's drug-dealing activities is the result of his own independent investigation.  Also, she confessed to him before they got married.  Although the first privilege might protect any subsequent statements she makes to him from now on, the damage is already done.  The first privilege is out, which leaves the second privilege.  That include everything the DEA agent knows about her, but the problem is that whether he testifies is entirely at his discretion.  Consequently, the privilege doesn't protect her at all from what the DEA agent knows if he is trying to set her up.

  
  

  Incidentally, here's three interesting law links:

  
  

  -David Lat's (Article III Groupie's) new website.  Fabulous!  Law SHOULD be more gossipy. 
  
  -Link to a podcast with Judge Posner where he's being interviewed about his new book and terrorism.  I don't agree with everything (or even much) of what Posner says, even though he's one of my legal heroes.  But one thing he is right about is that the United States needs an organization somewhere in between the crime fighting model (FBI) and the military in order to deal with terrorists.  Still, I think his views about how we can't afford "civil liberties that grew out of a more naive time" are pretty asinine.
  
  -Interview with Alito and his wife.  I really love Justice Alito's personality.  He's such a law nerd, and it's awesome that he can't dress himself and is always desheveled looking.  So endearing.  Too bad I'm probably going to disagree with every controversial opinion he ever writes. 

  • 2:51 am
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