Federal Evidence Review

In trial involving sexually explicit video of grandson, divided Ninth Circuit majority concludes wife’s trial testimony about statements of the defendant, who was the grandfather of the minor, concerning the making of a video with the grandchild, violated the marital communications privilege; error in applying exception was harmless, in United States v. Banks, 556 F.3d 967 (9th Cir. Feb. 25, 2009) (No. 07-30130)

Some courts have recognized an exception to the marital communications privilege where the statements involve abuse of the minor. A split Ninth Circuit panel recently reviewed a trial court decision applying the exception to the grandparent/grandchild relationship. The majority concluded the trial court erred in applying the exception. A strong dissent disagreed.

In the case, after a report that defendant Banks made a pornographic video of his two-year-old grandson, a search warrant was executed at his residence. Images depicting minors engaged in sexually explicit conduct, including a video of his grandson, were seized. He was charged with possessing, producing, transporting and receiving of images depicting minors engaged in sexually explicit conduct. The defendant’s wife testified at a bench trial and identified her grandson in the video, along with “her husband’s ring, watch and couch in the video.” Banks, 556 F.3d at 971 (footnote omitted). The prosecutor “asked whether her husband had made any statements regarding a video involving their grandson. Over Banks’s objection, Mrs. Banks testified that her husband had admitted to making the video and that he had done so to ensure that ‘nothing went on in changing the diaper because of past things.’” Banks, 556 F.3d at 971. The trial court determined that the minor was the functional equivalent of a birth or step-child, based upon the joint care of the minor by the grandparents when the parents were not present. Consequently, an exception to protect the minor from abuse applied, under United States v. White, 974 F.2d 1135, 1138 (9th Cir. 1992). The defendant was convicted. On appeal, the defendant claimed the marital communications privilege was violated by the admission of his wife’s testimony.

The circuit majority agreed that the trial court erred in applying the marital communications privilege, however the error was harmless. The majority concluded that the trial court erred in applying an exception to the marital communications privilege when the child must be protected from abuse by a spouse, citing United States v. White, 974 F.2d 1135, 1138 (9th Cir. 1992) (“Protecting threats against a spouse or the spouse's children is inconsistent with the purposes of the marital communications privilege: promoting confidential communications between spouses in order to foster marital harmony.”). The trial court erred in concluding the minor was in the functional equivalent of a child/parent relationship. According to the circuit, the nature of the relationship was different:

“Infrequent overnight visits are common to a large portion of grandparent/grandchild relationships, as are frequent visits with or even regular day-care services provided by the grandparents. This type of care, while admirable and important, does not carry the same indicia of guardianship and responsibility that a parent/child relationship carries. Further, while the district court noted that JB had resided with the Banks for the first six months of his life, it is an important qualifier that his parents had also resided in the home and that this living situation had ended well over a year before the alleged molestation. This is not a case in which a child was raised by grandparents and, therefore, could be said to share a parent/child relationship with those caretakers. Rather, this situation demonstrates a strong grandparent/grandchild relationship. Although such a relationship is important to building strong extended families and improving society, it is not the type that creates the same overriding policy concerns that led us to limit the marital communications privilege to protect children of the marriage.” Banks, 556 F.3d at 976.

While the majority concluded that the trial court abused its discretion in applying the exception to the grandparent/child relationship, the error was harmless as other independent evidence identified the defendant as the maker of the video, including “the recognition of Banks’s watch and ring on the adult in the video; the recognition of a couch in the video that was owned by Banks and kept in his garage; testimony that Banks had been found in his locked garage, alone with the victim, and had admitted to changing the child’s diaper; and testimony that Banks had been left alone with the child.” Banks, 556 F.3d at 977. The majority affirmed the conviction.

The majority disagreed with the dissent that the exception should apply. In the view of the majority, the dissent would establish “a sweeping ruling that the marital privilege is waived for all grandparents for all time for all circumstances, whenever a charge of sexual abuse of a minor is involved.” Banks, 556 F.3d at 977. The majority felt that the exception was limited under prior precedent in White.

Circuit Judge Alarcón concurred with other aspects of the opinion but dissented concerning the admission of the wife’s testimony. He did not believe that the law of the circuit constrained application of the minor abuse exception. As he noted, “This court did not hold in White that the marital communications privilege should not apply to an admission by the accused to his or her spouse that he or she had sexually abused their grandchild. Without citation to any relevant language in White, the majority has erroneously construed that decision to limit the exception to the marital communications privilege in prosecutions for crimes against children to statements made by ‘the functional equivalents of parents.’” Banks, 556 F.3d at 982. According to Judge Alarcón, a majority of states had adopted exceptions, including 38 states and the District of Columbia, which had “enacted legislation expanding, by statute or rule, exceptions to the marital communications privilege.” Further, 26 jurisdictions had concluded “there is no privilege where the accused has been charged with criminal abuse of any child, regardless of whether there is a familial affiliation with the victim-child.” Finally, 13 jurisdictions had “passed legislation exempting from the marital communications privilege statements concerning crimes against children who were in the care or custody of either spouse, or against any person, including any child, ‘residing’ in the household of either.” Banks, 556 F.3d at 992.

Will the panel division on this issue garner further review by an en banc court? Ultimately, the three panel judges agreed that the conviction should be affirmed. While it is unlikely that a reviewing court would vacate the conviction, given the strength of the evidence, the circuit has adopted a rule limiting the application of the marital communications privilege where minor abuse is involved.