This N.C. Case Cries For Comment
A recent North Carolina Court of Appeals State v. Matsoake started me to think about what constitutes a communication. The case involved whether an ex-wife’s testimony about seeing her husband crying should have been admitted. The defense objected on the basis that it was protected by the marital disclosure privilege. The Court of Appeals agreed with the trial court that the crying incident did not involve “communication”.
Section 980 of the California Evidence Code also protects spousal communications and so the same question might arise here. Must the evidence be verbal (either oral or in writing) to be protected? That would seem to be too cabined a position, given that some people cannot speak and communicate by means of sign language. The operative question seems to be whether action (whether by voice, writing or gesture) was for the purpose of communication. That leads to the question of why do people cry?
Crying in some cases is clearly for the purpose of communication. Babies cry to communicate hunger or pain to their parents (although Shakespeare posited that they cry because they have been thrust out upon “this great stage of fools” (King Lear, Act IV, Sc. 6)). People may also cry for internal purposes – many have championed the benefits of having a good cry.
The case also raises the question of what it means to “cry”. The word is derived from the Latin word quiritare which means to wail or shriek. The historian Caius Asinius Pollio, for example, uses the word in a letter to the great Roman lawyer Cicero to describe an elderly man who was half-buried and burnt alive for refusing to engage in gladiatorial combat: “et illi misero quiritanti: ‘C[ivis]. R[omanus]. natus sum‘” (and that wretched man crying: ‘I was born a Roman Citizen’). We still use “cry” in that sense of shouting out. A town crier, for example, is someone whose job it is to shout out the news, clearly an act of communication. Crying can also refer to lachrymation. In fact, the testimony at issue in the North Carolina case involved the former wife’s observation of her husband weeping.
These ruminations lead me to conclude that the determination of whether crying is communication depends on the purpose and context of the crying. If a spouse comes upon her mate alone and weeping, then the logical inference is that he is crying for internal purposes and not to communicate with her. In other cases, crying may used to convey sympathy, empathy, sadness or regret to the spouse.