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49. Is the wife's testimony admissible over the plaintiff's objection?
A plaintiff sued his insurance company for the proceeds of a casualty insurance policy covering his 60-foot yacht, claiming that the yacht was destroyed by an accidental fire. The company has denied liability, claiming that the plaintiff hired his friend to set the fire. In the hospital the day after the fire, the friend, who had been badly burned in the fire, said to his wife, in the presence of an attending nurse, «I was paid to set the fire.» Two weeks later, the friend died of an infection resulting from the burns. At trial, the insurance company calls the wife to testify to the friend's statement.
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A marital privilege allows either spouse, in any civil or criminal case, to refuse to disclose, and to prevent another from disclosing, a confidential communication made between the spouses while they were married. However, if the communication was made in the known presence of a stranger, it is not privileged.
Admissions of one conspirator, made to a third party in furtherance of a conspiracy to commit a crime or a civil wrong, at a time when the declarant was participating in the conspiracy, are admissible against co-conspirators. United States v. Inadi, 475 U.S. 387 (1986).
C is correct. The wife's testimony is admissible over the plaintiff's objection as a statement against interest. First, the statement was against the friend's interest when he made it because had the friend lived, his admission that he was hired to set the fire could have exposed him to liability, both civil and criminal. Second, the statement was based on the friend's direct knowledge of being hired to set the fire. Third, by making the admission in the presence of a witness, he was also aware that he could have been opening himself up to liability. There was no motive to misrepresent the facts because he had nothing to gain from admitting to the act. Finally, the friend died, rendering him unavailable as a witness. All the requirements of FRE 804(b)(3) are satisfied, and the testimony is admissible.
A is incorrect. While it is true that marital privilege survives the communicating spouse's death, the privilege never arose here, because the communication between the friend and his wife was not confidential. It was made in the presence of an attending nurse, which removes the privilege.
B is incorrect. The hearsay exemption for a vicarious admission by a co-conspirator does not apply here. The statement was not made in furtherance of the conspiracy, which, if one existed, had already ended.
D is incorrect. This answer reaches the correct answer with the wrong reasoning. As explained above, the hearsay exemption allowing statements by co-conspirators to be admissible does not apply here because any conspiracy that existed had already ended, which means it could not have been made in furtherance of it.