[CASE] The Ninth Circuit upholds habeas relief for a defendant whose attorney elicited testimony that waived his marital privilege. Edwards v. Lamarque, --- F.3d ---, 2005 WL 3358845 (9th Cir. Dec. 12, 2005), Find Result - 2005 WL 3358845.
[The lawyer's] responses to the prosecutor's objections and the trial judge's comments reveal that he fundamentally misunderstood the marital privilege, and thus lacked the legal understanding necessary for a competent tactical decision. [The lawyer] plainly believed that he could prevent [defendant's wife] from testifying as to certain “confidential” conversations between her and [the defendant] * * *, but that he could pick and choose other parts of the conversations they had and elicit testimony as to [the defendant's] versions of those exchanges to bolster his defense.
* * *Categories: evidence, privilege, waiver, ineffective-assistance, cases
Fundamentally, [the lawyer] had no conception of the most basic premise of the spousal privilege and could therefore not make competent tactical decisions regarding it. He did not recognize that all private communications between spouses are “presumed to have been made in confidence.” * * Correspondingly, [he] showed no understanding that courts narrowly construe the privilege because it “prevent[s] the admission of relevant and otherwise admissible evidence” and impedes the search for truth. * * * Given [the lawyer's] evident misconceptions about the nature and scope of the marital privilege, [he] was incapable of making competent tactical decisions of the sort the state court (and the dissent) imagines.