We normally do not discuss criminal cases, but this special action involves the anti-marital fact privilege and Arizona’s statute applies in both criminal and civil cases. Under A.R.S. § 13-4062, a husband cannot be examined without his wife’s consent and vice versa. There are exceptions. The privilege does not apply if a spouse is prosecuted for a serious criminal offense and the testifying spouse makes a voluntary statement or wants to testify.  Here, husband is charged with second-degree murder and aggravated assault after firing his rifle at a group of border crossers. Deputies interviewed the wife and later arrested the husband. The trial court held the exception ended upon the defendant’s arrest and could be re-asserted for conversations after the arrest.  Since the statute does not draw such a distinction, the court of appeals reverses.  But is it that easy? Maybe. The statutory exception is one long run-on sentence, and we are a little confused whether the phrase “makes a voluntary statement” means the privilege bubble is burst. The trial judge drew a distinction between voluntary statements before her husband’s arrest and conversations she had with her husband after his arrest citing the defendant’s rights under the Fifth and Sixth Amendment. The court of appeals brushes this aside: “The anti-marital fact privilege is statutory and does not implicate any constitutional right.” We thought the statute recognizes the harm coerced testimony does to a marriage as did the common law. Did the statutory privilege completely swallow the common law privilege? Can a spouse be coerced to testify against the other for whatever was said between the two after an arrest because of a brief statement to inquiring officers before his arrest? This needs a closer look and a more thoughtful analysis.

link to opinion

Plaintiff was walking around in public naked from the waist down. This led to a confrontation with the police. Plaintiff initially talked to the officers and then took off.  The officers took him to the ground (hot asphalt), and he was injured.  First trial, the officers won although the trial court granted a motion for a new trial after deciding the defense’s introduction of a drug test was unduly prejudicial.  At the second trial, the trial court bifurcated liability and damages. The officers conceded their use of force constituted assault or battery, but the use of force was justified under A.R.S. § 13-409. (Is it a battery if force is privileged?) Second trial, the officers win again.  Plaintiff argues the jury instructions should have separately instructed on each assault or battery and required justification for each. The jury instruction mirrored the justification statute, and the court of appeals held there was no error. Further, the instruction calling this an arrest rather than a welfare detention was not unduly prejudicial. 

Plaintiff also argued defense counsel’s closing argument was unduly prejudicial because she referred to plaintiff’s failure to present evidence on plaintiff’s mental health. This was a mistake because the relevant evidence was what the officers knew when they confronted the plaintiff.  We suspect counsel was looking for some way around the officers not following mental health protocols. This argument, however, was not prejudicial enough. Include in the “not prejudicial enough” category several evidentiary rulings during trial including impeachment evidence, deposition testimony, and an expert vouching for a witness.

The court concludes with a discussion of whether the trial court should have imposed sanctions for bringing up the drug screen test in the first trial. Trial counsel was told not to bring it up without permission and did it anyway. This misconduct was the basis of the new trial, and this violation of an unambiguous order warrants sanctions. A.R.S. § 12-349 requires only unreasonable delay and expansion of the proceedings. The concurrence suggests just because the trial court used the incorrect standard by requiring bad intent, the court should remand and have the trial court evaluate under the correct legal standard.  Although there will be no third trial, the court sends a message. Seems a little strong when one considers the back and forth during the first trial, the curative instruction, and the trial court’s decision granting a new trial came only after the result. The court of appeals had previously affirmed the trial court’s decision granting a new trial. If sanctions were warranted, why was this not determined in round one?

link to opinion

Another Notice of Claim case via special action. Since Deer Valley Unified School District v. Houser, 214 Ariz. 293, 152 P.3d 490 (February 26, 2007), courts enforce A.R.S. 12-821.01 by requiring notice within 180 days from when the cause of action accrues, and the notice must include a sum certain for which the claim can be settled. Dozens of cases have been dismissed because a plaintiff has failed to comply with the statute. Here, plaintiff’s counsel demanded $1,000,000 or the city’s applicable policy limits, whichever is greater.  This is not a sum certain, and the court of appeals grants special action relief and tells the trial court to dismiss the case. Plaintiff tried to fix this months later by resubmitting and removing the words “or the city’s applicable policy limits.”  The late compliant notice did not cure the defect, and nothing justified applying the discovery rule. One interesting point which may reach beyond a notice of claim. If any demand letter asks for “applicable policy limits” when the plaintiff has no specific knowledge of those limits, is this a valid offer?

link to opinion