People v. Doe
| Decision Date | 24 July 1980 |
| Citation | 431 N.Y.S.2d 879,105 Misc.2d 84 |
| Parties | In the Matter of a Grand Jury Investigation concerning certain homicides committed in New York County. The PEOPLE of the State of New York, Petitioner, v. Jane DOE, Respondent. |
| Court | New York Supreme Court |
Robert M. Morgenthau, Dist. Atty., New York County (Nancy Ryan, Asst. Dist. Atty., of counsel), for the People.
Harry G. Carroll, New York City, for respondent.
A New Jersey resident has been issued a subpoena to testify before a New York County Grand Jury about matters relating to her husband, which concededly are not "confidential communications." By agreement, the parties seek a ruling as to whether she may refuse to testify by invoking the New Jersey marital privilege statute.
The Grand Jury is currently investigating the murders of three young women. Two of them were found in a motor lodge in New York County, beheaded, their hands severed and their bodies badly beaten. Subsequently, the badly beaten and mutilated body of the third woman was found in a hotel in New York County.
The District Attorney's Office has reason to believe that a New Jersey resident, John Doe, 1 is responsible for the three murders. Certain property belonging to the victims was found in the Doe residence in New Jersey during the course of a search conducted under the authority of a search warrant. A subpoena has been issued to Jane Doe, John's wife, demanding her appearance before the Grand Jury to testify as to:
1. where she and her husband live;
2. access to certain areas in their home and to objects within their home;
3. access to and ownership of John Doe's automobiles;
4. Jane Doe's independent knowledge of the presence of items of property found in her husband's automobile and in their home; and
5. identification of her husband's handwriting.
None of these matters involve "confidential communications" and, as a consequence, the testimony sought is concededly not privileged under New York law (see CPLR 4502). Jane Doe has indicated that she intends to refuse to answer any questions asked of her before the Grand Jury because, as a New Jersey resident, she is entitled to the protection afforded by Rule 23(2) of the New Jersey Rules of Evidence, which provides:
"The spouse of the accused in a criminal action shall not testify in such action except to prove the fact of marriage unless (a) such spouse and the accused shall both consent, or (b) the accused is charged with an offense against the spouse, a child of the accused or of the spouse, or a child to whom the accused or the spouse stands in the place of a parent, or (c) such spouse is the complainant." (N.J.S.A. 2A: 84A-17.)
Additionally, she argues that although the Grand Jury is investigating murders which occurred in New York, she will be questioned concerning matters "which center in and around the marital residence in Lodi, New Jersey."
Rule 23(2) of the New Jersey Rules of Evidence does not, unlike its New York counterpart, simply bar testimony as to communications made by spouses during the course of a marriage, but instead, with certain exceptions, not now relevant, renders one spouse incompetent to testify in a criminal action against the other. Consequently, Rule 23(2) is a rule of witness competency rather than of privileged communications (see State v. Brown, 113 N.J.Super. 348, 273 A.2d 783, 785; State v. Briley, 53 N.J. 498, 251 A.2d 442).
Section 137 of the Restatement, Second, Conflict of Laws (hereafter referred to as "the Restatement") provides that "(t)he local law of the forum determines what witnesses are competent to testify and the considerations that may affect their credibility." (See, also, Shepard & Gluck v. Thomas, 147 Tenn. 338, 246 S.W. 836.) This is so because a rule of witness competency is a rule of evidence governed by the law of the forum (see Hausman v. Buckley, 2nd Cir., 299 F.2d 696, 700, cert. den. 369 U.S. 885, 82 S.Ct. 1157, 8 L.Ed.2d 286; Intercontinental Planning, Ltd. v. Daystrom, Inc., 24 N.Y.2d 372, 381, 300 N.Y.S.2d 817, 248 N.E.2d 576, mot. for rearg. den. 25 N.Y.2d 959, 305 N.Y.S.2d 1027, 252 N.E.2d 864; Kilberg v. Northeast Airlines, 9 N.Y.2d 34, 41, 211 N.Y.S.2d 133, 172 N.E.2d 526). Thus the New York marital privilege rule governs the instant situation.
Even if Rule 23(2) of the New Jersey Rules of Evidence was construed to be a privilege statute, New York law would nevertheless be controlling. Section 139 (subd. 2) of the Restatement provides that:
"Evidence that is privileged under the local law of the state which has the most significant relationship with the communication but which is not privileged under the law of the forum will be admitted unless there is some special reason why the forum policy favoring admission should not be given effect."
The Comment to subsection (2) suggests consideration of the following factors in determining the issue of admissibility:
Applying the tests suggested by the Restatement, New York has significant contacts with the parties and the transactions. Jane and John Doe were married in New York, and John Doe has worked in New York for the last 13 years. He allegedly met his victims in New York. One of the two identified victims worked in New York, and the other victim was a resident of New York County and also worked in New York. Moreover, the murders were committed in New York.
The testimony of Jane Doe is material; she may be the only person who can actually provide evidence as to who might have had access to the property belonging to the victims.
The fact that a marital privilege is at issue is significant in view of the policy of New Jersey "to make competency the rule and exclusion the exception." (State v. Briley, 53 N.J. 498, 251 A.2d 442, 448, supra.)
The court in State v. Briley, supra, 251 A.2d p. 446, explained:
In compliance with the philosophy enunciated by the Supreme Court of New Jersey in Briley, supra, the Appellate Division of the Superior Court of New Jersey narrowed the scope of the broad language of Rule 23(2) by holding that the rule is inapplicable "if the parties are divorced when the testimony is offered even though the communication was made while married." (State v. Brown, 113 N.J.Super. 348, 273 A.2d 783, 786.)
Since the courts of New Jersey have sought to narrow the scope of Rule 23(2) and as John and Jane Doe are apparently presently separated, 2 it does not appear that New Jersey has a strong interest in the application of Rule 23(2) to this case.
I find that Jane Doe's inability to rely on Rule 23(2) would not result in unfairness to her. There is no indication that she relied on the protection afforded by that rule in obtaining the evidence which the People seek to adduce from her.
New York courts have evolved a governmental interest analysis approach which, when applied to the facts in this case, results in the same conclusion as that reached by use of the teachings of the Restatement (see Intercontinental Planning, Ltd. v. Daystrom, 24 N.Y.2d 372, 300 N.Y.S.2d 817, 248 N.E.2d 576, mot. for rearg. den. 25 N.Y.2d 959, 305 N.Y.S.2d 1027, 252 N.E.2d 864, supra ; Miller v. Miller, 22 N.Y.2d 12, 290...
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