Letter to wife (and others) not covered by marital privilege

[CASE] The defendant clearly addressed the letter to his wife: “Kimberly, honey, I hope to God you never get to read this letter.” So why could it be admitted at his trial for the bank robbery that took place the day he left it for her?

The letter was several letters in one. Over the course of seven pages, the defendant wrote to his wife and then, on the same sheet of paper, “To Debbie, Larry, & Naomi,” and then “To Marc, Christy & Nicole, & Krystal,” and so on. Since the letter was addressed to twenty-four people and was not intended for his wife alone, the 9th Circuit affirmed the district court’s ruling that the marital privilege did not apply. United States v. Strobehn, 421 F.3d 1017 (9th Cir. Aug. 31, 2005).

The 9th Circuit also affirmed the district court’s ruling that an FBI agent could testify as an expert about the model of the shotgun in the bank robbery security photos. The defense argued that the jury could compare the photos with the gun themselves (citing a case where an expert had not been allowed to testify about the identity of a person in a photo). But the court reasoned that the FBI agent’s expertise would make him better at the comparison, since he would know what features to focus on. (The model looks like this.)

(In addition to addressing these two evidentiary issues, the panel affirmed a sentence enhancement for “forced accompaniment,” over a dissent by Judge Betty Fletcher.)

Categories: evidence, privilege, experts, firearms, sentencing, cases,