§ 39.02 SPOUSAL TESTIMONIAL PRIVILEGE

• Jurisdiction: United States

§ 39.02. SPOUSAL TESTIMONIAL PRIVILEGE

The spousal testimonial privilege, which is sometimes known as the anti-marital fact privilege,⁷ is based on the policy of protecting the marital relationship from "dissension" and the "natural repugnance" for convicting a defendant upon the testimony of his or her "intimate life partner."⁸ Criticism has plagued the rule for a long time.⁹ Bentham argued that the privilege goes far beyond making "every man's house his castle" and permits a person to convert his house into "a den of thieves."¹⁰ As with all privileges, a cost-benefit analysis, mostly based on speculation, is required to assess the value of the privilege. Does the privilege really save viable marriages? And, is the cost in loss of evidence worth whatever benefit that may be derived from the privilege?

[A] Type of Case

Unlike the confidential communication privilege, the testimonial privilege applies only in criminal cases. If the testimonial privilege is inapplicable, the confidential communication privilege remains intact in those jurisdictions that recognize both.¹¹

[B] Scope and Duration of Privilege

The testimonial privilege is determined as of the time of trial.¹² If there is a valid marriage,¹³ the privilege applies, and all testimony, including testimony concerning events that predated the marriage, is excluded.¹⁴ Thus, if the defendant and witness marry after the crime has been committed but before trial, the witness's testimony becomes privileged.¹⁵ This "marry-the-witness" tactic is viable in many jurisdictions.¹⁶

Once the marriage ceases, so does the privilege.¹⁷ Moreover, the parties are not considered spouses if the marriage was a sham.¹⁸ In addition, the privilege does not necessarily apply to out-of-court statements by the spouse.¹⁹

[C] Holder

In some jurisdictions, both spouses may assert the privilege.²⁰ In others, only the witness-spouse holds the privilege. Because the privilege is based on the policy of protecting the marital relationship from conflict, its application becomes questionable when one spouse is willing to testify against the other spouse.²¹ The Supreme Court in Trammel v. United States²² observed:

When one spouse is willing to testify against the other in a criminal proceeding — whatever the motivation — their relationship is almost certainly in disrepair; there is probably little in the way of marital harmony for the privilege to preserve. In these circumstances, a rule of evidence that permits an accused to prevent adverse spousal testimony seems far more likely to frustrate justice than to foster family peace.²³

Trammel modified the common law rule "so that the witness-spouse alone has a privilege to refuse to testify adversely; the witness may be neither compelled to testify nor foreclosed from testifying."²⁴ In short, the witness-spouse is the holder in federal courts.

[D] Exceptions

[1] Crimes against Spouse or Child

If the charged offense involves a crime against the other spouse²⁵ or their children, the privilege typically does not apply.²⁶ In such a case, the decision to testify is not optional; the witness-spouse can be compelled to testify.²⁷ This rule has a significant impact in domestic violence cases where spouses sometimes change their minds about prosecution, often due to fear. If the crime is against both a spouse and a third party, the exception applies, and the spouse may testify.²⁸

[2] Joint Participation in Crime

Some federal courts have engrafted a "joint participant" exception onto the common law privilege.²⁹ The policy of preserving family harmony is not thought sufficient to permit a criminal to enlist his or her spouse as an accomplice without fear of creating an adverse witness. In addition, the rehabilitative effect of a marriage, which in part justifies the privilege, is diminished when both spouses are participants in the crime.³⁰ However, many states do not recognize this exception.³¹

[E] Waiver

Failure to object to a spouse's testimony at trial waives the privilege,³² as does voluntary disclosure to a third party.³³

[F] Procedural Issues

Generally, the prosecution should not call a spouse as a witness and force her to invoke the privilege in front of the jury if the prosecutor knows the privilege will be asserted.³⁴ In other words, the defendant should not be penalized when a spouse exercises a valid privilege. This does not mean, however, that the spouse may not be called as a witness outside the jury's presence to determine if the spouse will in fact assert the privilege. Moreover, the prosecutor should not be permitted to ask a spouse at trial whether she had invoked the privilege when summoned before a grand jury.³⁵

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Notes:

^[7] See also United States v. Morris, 988 F.2d 1335, 1339 (4th Cir. 1993) ("The marital privilege is conferred upon witnesses by the Congress and not by the Constitution. See Fed. R. Evid. 501."); Port v. Heard, 764 F.2d 423, 430 (5th Cir. 1985) ("[T]he marital privilege has never been placed on a constitutional footing.").

^[8] 8 Wigmore, Evidence § 2228, at 216-17 (McNaughton rev. 1961). See also Trammel v. United States, 445 U.S. 40, 44 (1980) ("The modern justification for this privilege against adverse spousal testimony is...