ANNAPOLIS, Maryland — The Maryland Court of Appeals is considering whether to deem sensitive text messages between husbands and wives confidential communication, which usually may not be admitted as evidence in criminal trials.
On Oct. 4, the state’s highest court heard arguments from Peter Naugle, one of the state’s assistant attorneys general, and Erin Murphy, representing Kevin Sewell of Pocomoke City, Maryland.
The court had not released its opinion on the case by publishing time.
The argument revolves around a 2015 case, Kevin Sewell v. State of Maryland.
That May, Sewell was arrested on charges of murder in connection with the death of his 3-year-old nephew.
In his original trial, where text messages were introduced as evidence, the jury found Sewell guilty of first-degree murder, first-degree child abuse and the neglect of a minor. He was sentenced to life in prison without the possibility of parole.
Murphy argued this should be considered more a “burden of production” case — a question of whether the state followed correct procedure in admitting the evidence to trial — than a case about whether these texts fit marital privilege boundaries.
She said the state had initially failed to present an argument for why they could use what Sewell asserted as confidential spousal communications in trial court against his will.
Naugle argued that the text messages shouldn’t be presumed, in the first place, to be confidential marital communication.
In arguing against their confidentiality, Naugle said to send a text is to actively create a “functionally permanent” transcript of the conversation; that other people could possibly see the messages when they pop up on recipients’ phones; and state law mandates that people immediately report suspected child abuse “notwithstanding any other provision of law, including a law on privileged communications.”
Naugle said Sewell should therefore not have expected the texts to his wife to be, or stay, confidential.
Some of the text messages from Naugle to his wife read, “He ignores you like he’s retarded. He’s thrown up twice and all he does is whine;” “I didn’t even bite him hard, but, apparently, he bruises easy;” and “I’d be more concerned about all the bruises.”
In 2016, the Court of Special Appeals reversed the trial court’s decision, saying the state did not present a reason for denying Sewell’s motion to exclude his text messages from the evidence.
Naugle and Murphy each pointed to decisions in former cases to support their arguments.
Particularly, they cited the Maryland Court of Special Appeals’ 2002 opinion in Wong-Wing v. State of Maryland, and its 1977 opinion in Coleman v. State of Maryland.
In the 2000 initial trial against Junior Wong-Wing of Baltimore, the defendant was convicted of sexual assault and child sexual abuse against his stepdaughter.
When he faced trial, the court admitted into evidence a transcript of a message left on his wife’s answering machine where the defendant expressed remorse to the point of suicidal thoughts.
The Court of Special Appeals upheld the trial court’s evidence because Wong-Wing did not try to invoke Maryland’s marital communication privilege in trial court, and because the answering machine could have been accessed by people other than his wife.
The other relevant case law comes from Coleman v. State of Maryland — where the defendant, Eugene Coleman, had appealed his 1975 conviction of rape and larceny, according to the Special Appeals court opinion.
Coleman was married, but in his wife’s testimony, she said they had stopped living together, and when the court delivered its opinion, she had started divorce proceedings, the court documents explained.
In appellate court, Coleman’s wife willingly testified about a phone call he had placed from jail to her workplace, in which he asked her to go to his apartment and hide a diamond engagement ring the trial court determined he stole from the victim.
Coleman objected, but her testimony was permitted because the court found their marriage had practically ended, so it could not be protected by the privilege as was the statute’s primary intention, and she was not testifying about facts that were unknown to other witnesses.
Naugle said these cases established that circumstances surrounding the communication could be enough to negate confidentiality.
“Most phones today, when you receive the text, it comes up. Anybody who’s around could see the text,” Naugle said. “Again, it’s not whether or not somebody did, it’s whether or not somebody could.”
Murphy read the opinions differently, saying the Coleman case’s focus on preserving marital relations showed how protected this privilege should be. She said the court should not have waived Sewell’s privilege so easily.
“Perhaps if the state had put someone on, for example, from the restaurant where she worked, and that person said ‘Oh, she leaves her phone out, I can clearly see (her texts) pop up.’” Murphy said. “But just to say that it’s a text message … that possibly could have been seen by someone, that’s not enough to erode this privilege.”
Jessica Vitak, a researcher and seventh-year professor at the University of Maryland, College Park, studies privacy and human-computer interactions. She said there’s a strong argument for people expecting their text messages to be private.
She said there are fewer ways of privately sharing a text than of privately sharing an email, and the password protection on most cell phones provides a barrier from general public access — but those measures aren’t absolute.
“The interesting thing here is that people’s expectations of privacy are not matched by reality,” Vitak said. “I don’t think it ever crosses their mind that a third party like AT&T and Verizon can see that content.”
Vitak said she believes text messages are less private than letters, since there are laws against opening other people’s mail; as private as phone calls, because those could be heard aloud but leave no records; and more private than messages left on traditional home-phone answering machines, because those generally aren’t password-protected.
She said the court should lay out some principles with their decision, so the state need not have individual cases for new platforms like SnapChat or encrypted communication apps.
“I think the courts need to consider higher-level aspects of communication … to get ahead of what new technologies are going to be,” Vitak said.
Some marriage counselors said they are wary of offering opinions, one way or another, on the view of text privacy in relationships.
Lisa Eschbach, who has worked as a social worker for about seven years and as a marriage counselor in Annapolis, Maryland, for one year, said most of the time when text messaging comes up in her sessions, the problem people are having is that it’s not a good way to communicate.
“I bet there are some serious ramifications (of this decision) because couples do communicate a lot through text,” Eschbach said. “And again, it’s not productive, so it tends to get very negative very quickly.”
Doug Tilley, who has been a marriage counselor in Annapolis for 40 years, said he hadn’t encountered many cases where texts between spouses were used in court.
“Where it comes up sort of routinely in my work is when one partner discovers the other partner has been texting someone else in a romantic relationship,” Tilley said.
He said sometimes those accused of cheating were indignant that their spouse had looked through their phone, and other times, they were found out because texts would pop up on a lockscreen.
“I don’t know whether they ought to be confidential,” Tilley said.
Murphy concluded her arguments by saying it was the role of the Legislature to make exceptions in marital communications law.
“The bottom line is, over and over, they (the state) reference that it’s the first degree murder of a child — a horribly tragic event, but that doesn’t mean that you get to change case law and change burdens of production, based on the fact that the crime is severe,” Murphy said. “Communication between husband and wife should be protected.”
Naugle, arguing for the state, ended his discussion by telling the judges they should beware of limiting the evidence in crimes like child abuse, that often take place in the privacy of homes.
“Privileges are disfavored rather than favored, and are to be strictly construed, rather than liberally construed,” Naugle said. “The tide goes to the evidence, not the privilege.”