Barreras_Darly_PLA1104_writing assignment2
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Law
Date
Feb 20, 2024
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Uploaded by darlybarreras305
Law Offices of Darly Barreras
4798 Alton Rd
Tampa, Fl 33615
(813)876-5432·FAX (813)876-5431·www.BestLawyersInc.com
November 14, 2023
Via Facsimile and U.S Mail
Mrs.Fleur Delacour-Weasley
1234 Clifton st
Tampa, FL 33634
RE: Commonwealth of Pennsylvania v. William Weasley, Case No.: 015-378; privileged
communication
Dear Mrs. Fleur Delacour-Weasley:
On November 07, 2023, we met in my office to discuss the possibility of you testifying
against your husband in the above-referenced case. This opinion is based on the facts outlined in
the facts section of this letter and the applicable law as of the date of the letter. This letter is
solely for your benefit and limited to the facts discussed below. Please contact me if any of the
facts are misstated or if you have additional information.
FACTS:
Your husband has been charged with assault with a deadly weapon. Before the confrontation.
You stated that your husband was angry about the fence being built. He said he was going to stop
it once and for all. He then grabbed a hammer and walked out the door. Your children ages Ten
and five and yourself were not present at the time of the confrontation.
ANSWER:
Based on the above facts you may be able to testify against your husband. To our
understanding spouses are not allowed to testify. However, precedent case law indicates that
your children being present may negate spousal privilege. Depending on if the children were
attentive and showed understanding of the conversation.
EXPLANATION:
The relevant statute governing spousal communication
Commonwealth v. Newman,
534
Pa. 424, 633 A.2d 1069, 1072 (1993) demonstrates that a spouse does not have to testify against
their spouse where their communication was confidential this privilege remains enforceable even
after death and divorce. The communication must be made in confidence and
with the intention that it is not divulged. The presence of a third party usually negates the
confidential nature of the communication unless it is a minor and lacks the capacity of being a
witness the confidential character of the communication may not be lost. See Wharton’s
Criminal Evidence (14th ed.) § 525 (1987). 49 A.L.R.4th 480; 81 Am.Jur.2d § 316;
State v.
Benner,
284 A.2d 91 (Me.1971);
Hicks v. Hicks,
271 N.C. 204, 155 S.E.2d 799. This discusses
when the presence of your children may negate the confidential nature of the communication.
But ultimately it is up to the judge’s discretion to take the final decision. Depending on if your
children were attentively paying attention to the conversation or if they were in the background
playing with each other not listening at all to your conversation. During the Com v May case, it
was determined that the presence of his two-year-old did not destroy the confidential nature of
the communication. In case
State v. Muenick,
26 Ohio App.3d 3, 4–5, 498 N.E.2d 171, 173
(Summit County 1985) it was determined that communication in front of kids ages ten to eleven
was not confidential because the boys were competent enough where they could testify. But in
the trial
Hicks v. Hicks,
271 N.C. at 207, 155 S.E.2d at 801 it was determined that the presence
of
eight-year-old daughter which was singing and playing did not negate the confidential nature of
communication. Yet during this trial
State v. Benner,
284 A.2d at 110 It was stated that the
expectation of confidentiality was not reasonable where communication took place in front of an
eight-year-old who was sleeping but could wake up and hear the communication. Due to the
communication between you and your husband took place in front of your kids one being a 10-
year-old who could understand the nature of the communication this puts the ultimate decision in
the hands of the judge.
CONCLUSION:
Although we believe you may be able to testify. We need you to provide more information
regarding what the kids doing while this conversation took place between you and your husband.
Along with a more specific time and date of when the communication took place. This would
allow us to better tell you where your case falls concerning the cases referenced above. If you
have any questions or concerns, please feel free to reach out.
Sincerely,
Darly Barreras
Attorney at Law
Law Office of Darly.
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