Cry Me a River: A Digression
POSTED ON January 12

Sometimes I go off-topic for this blog simply because I am intrigued. Tears and the emotions behind them fall into that category. Can they be construed as evidence?

We all know that people cry for a lot of reasons. We shed tears because of sadness, anxiety, or even just when chopping onions. There are many physical and emotional health benefits to crying. Crying helps rid our bodies of toxins, and our tears can kill harmful bacteria. Tears are also essential to lubricating our eyes.

Crying can also be a healthy emotional release. It has been called a “self-soothing behavior” and studies have shown that most people feel better after they cry, even though their situation has not changed. For many years, it was thought that crying was a form of catharsis, or a way of releasing stored emotions, but that theory has largely been abandoned. Many psychologists now believe that crying is how we implicitly ask for support from others—a true and, for most, involuntary reaction. According to psychologists Jay Efran and Mitchell Greene, tears are released as we make a transition from a state of high emotional tension to a state of recovery, when we feel safe. A lost child may cry when she sees her parents. Similarly, an adult may start to cry when he feels safe enough to seek the help of someone nearby whom he trusts.

Seeking help or support is a very basic form of communication. But according to the North Carolina Court of Appeals, you are not crying because you want to communicate something. That means that crying in front of your spouse (or, one must assume, your lawyer) is not a privileged communication.

In the case of State v. Matsoake, 2015 WL 6142975 (N.C. App. Oct. 20, 2015), the defendant was convicted of first-degree rape. The rape happened in 2003, but the defendant was not identified as a suspect until 2007, when his wife contacted law enforcement and relayed her suspicions about her husband’s involvement. One reason for her suspicions was that, shortly after the rape, she saw the defendant crying while looking at a composite sketch of the victim’s assailant. The police investigated further, and the defendant was indicted in 2008 and tried and convicted in 2014 (some of the delay may have been due to the fact that the defendant had returned to his native South Africa and had to be extradited).

At trial, defense counsel objected to the evidence of the crying incident. Counsel argued that the crying was communication, and defendant was making “some sort of tacit admission to some sort of involvement” in the attack. This, counsel argued, was a nonverbal communication that should be inadmissible. The trial court disagreed and allowed the evidence, holding that the crying was “an act, not a communication.” The definition of “confidential communication,” according to the court, is limited to words. The Court of Appeals upheld the conviction, holding that there was no evidence that the defendant intended to communicate anything by crying.

Privileges prohibit the introduction of evidence regarding confidential communications made to or between certain people. Confidentiality is therefore provided for communications between an attorney and her clients, a health-care provider and a patient, or, as was claimed in Matsoake, between spouses. Evidentiary privileges are construed strictly, as they are a limitation on the search for the truth.

Privileged communications are not always verbal communications. Courts have long recited the rule that a nod of the head, or pointing a finger may be a privileged communication. In order for the privilege to attach, it must be shown that the action was meant to communicate something. Pointing a finger to indicate where something or someone is, or nodding one’s head in response to a question, are clearly meant as communications. Getting a gun from a cabinet—an action often argued to be protected by privilege—is not.

The North Carolina Court rested its decision on the theory that the defendant’s crying was a physical action. All communication is, at some level, a physical act or series of physical acts. The court’s decision ignores the reason for crying—the authentic non-verbal communication of a need for support. Perhaps a later court will understand crying, and give it the privilege protection other non-verbal communications enjoy.


About the Author Chris

Author Avatar Christine Chalstrom is the Founder, CEO, and President of Shepherd Data Services, Trustee, Mitchell Hamline Law School and Adviser, Center for Law and Business. She has spoken widely on the Amendments to the Federal Rules of Civil Procedures, Digital Forensics, and eDiscovery best practices. Her credits include presentations to the American Bar Association, Association of Certified e-Discovery Specialists (ACEDS), Corporate Counsel Institute, MN Association of Corporate Counsel, MN Association of Litigation Support Professionals, MN CLE, Mitchell Hamline School of Law, Upper Midwest Employment Law Institute. She is an attorney, programmer, and forensic examiner.