§ 39.03 SPOUSAL COMMUNICATION PRIVILEGE

• Jurisdiction: United States

§ 39.03. SPOUSAL COMMUNICATION PRIVILEGE

The second spousal privilege concerns confidential communications.³⁶ The purpose of this rule is to promote marital discourse, an instrumental rationale.³⁷ The efficacy of this privilege, however, may be questioned. Most married couples do not know of the privilege, and thus it cannot encourage spousal communications. In addition, the existence non vel of such a privilege probably wouldn't affect their conduct one way or the other.³⁸ Marital privacy is probably a better rationale³⁹ but one that raises other issues — e.g., whether the privilege should be extended to parents, children, partners, or perhaps others.⁴⁰

As with all confidential communication privileges, the issues can be divided into the following components: (1) Who are the proper parties (e.g., are they spouses?); (2) What is a communication? Are acts covered?; (3) Was the communication intended to be confidential?; (4) What are the exceptions?; and (5) How is the privilege waived?

[A] Type of Case

Unlike the testimonial privilege, which applies only in criminal prosecutions, the confidential communication privilege applies in both civil and criminal cases. If the testimonial privilege is inapplicable, the confidential communication privilege remains intact in those jurisdictions that honor both.⁴¹

[B] Scope and Duration of Privilege

The privilege applies only to communications made during marriage.⁴² Communications made prior to marriage are not covered,⁴³ and those made after the termination of the marriage (e.g., divorce) are also not protected. However, the privilege survives the termination of the marriage to the extent that communications during the marriage remain confidential even after the marriage ceases.⁴⁴ Thus, conversations that occur during coverture continue to be privileged after divorce or death.

The federal courts have curtailed the reach of this privilege by holding that it does not apply to permanently separated couples.⁴⁵ In making this determination, courts focus on several factors: "(1) Was the couple cohabiting?; (2) if they were not cohabiting, how long had they been living apart?; and (3) had either spouse filed for divorce? A district court may, of course, consider other objective evidence of the parties' intent or lack of intent to reconcile."⁴⁶

Courts are divided over the privilege's applicability to out-of-court statements. Some have limited the privilege to in-court testimony.⁴⁷ Other courts have upheld the privilege when a third party overhears the communication with the assistance of the recipient spouse.⁴⁸

[C] Holder

The privilege is personal to the husband and wife and may not be invoked by a third party. As between the spouses, it could be argued that only the communicating spouse should be able to assert the privilege. Nevertheless, the privilege typically extends to both spouses.⁴⁹ "Vesting the privilege in both spouses recognizes that allowing the communicating spouse to disclose one side of a conversation would eviscerate the privilege."⁵⁰

[D] Communications and Acts

The privilege applies to confidential communications and includes acts only when intended as communications.⁵¹ The federal privilege does not reach conduct that is not intended to be communicative.⁵² Therefore, a spouse's observation of her partner's drug trafficking activities is not protected in federal trials.⁵³ State privilege law sometimes differs.⁵⁴

[E] Confidentiality

The spousal privilege applies only to communications that are intended to be confidential.⁵⁵ It generally does not apply if the conversation took place in the known presence of a third person.⁵⁶ Sometimes the presence of children defeats the privilege.⁵⁷ In the absence of a third party, confidentiality is presumed.⁵⁸ Spousal communications over a jail phone, however, do not satisfy the confidentiality requirement.⁵⁹

[F] Exceptions

[1] Crimes Against Spouse or Child

As with the testimonial privilege, the communication privilege does not apply in prosecutions for crimes against the spouse⁶⁰ or their children.⁶¹ Domestic violence cases are a problematic illustration, especially if the wife does not want to testify. She may be compelled.⁶²

[2] Joint Participation in Crime

Like the testimonial privilege, a joint crime exception has been carved out by the federal courts.⁶³ However, the "government must produce evidence of a spouse's complicity in the underlying, on-going criminal activity before the district court may admit testimony regarding confidential communications between the defendant and the spouse. The spouse's involvement in the criminal activity . . . need not be particularly substantial to obviate the privilege."⁶⁴ Nevertheless, communications made before a spouse begins to participate in the criminal activity remain privileged.⁶⁵

[G] Waiver

Failure to object at trial to disclosure of a privileged communication waives the privilege. It may also be waived by offering the testimony of a witness concerning the privileged communication. In addition, voluntary disclosure to a third party is a waiver.⁶⁶

[H] Procedural Issues

Comment on the exercise of privilege are prohibited.⁶⁷

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Notes:

^[36] Although the Supreme Court in Trammel dealt only with the testimonial privilege, it cited the communication privilege. 445 U.S. at 45 n. 5 ("This Court recognized just such a confidential marital communications privilege in Wolfle v. United States, 291 U.S. 7 (1934), and in Blau v. United States, 340 U.S. 332 (1951).").

^[37] See United States v. Lea, 249 F.3d 632, 641 (7th Cir. 2001) ("We encourage married people to confide in each other by protecting their statements from later scrutiny in court."). For a discussion of the instrumental justification, see supra § 37.03 (discussing rationale for privileges).

^[38] The federal drafters rejected this privilege for these reasons. See Proposed Fed. R. Evid. 505 advisory committee's note ("Nor can it be assumed that marital conduct will be affected by a privilege for confidential communications of whose existence the parties in all likelihood are unaware. The other communication privileges, by the way of contrast, have as one party a professional person who can be expected to inform the other of the existence of the privilege. Moreover, the relationships from which those privileges arise are essentially and almost exclusively verbal in nature, quite unlike marriage.").

^[39] One commentator criticized the federal drafters' failure to propose a confidential communication privilege on this ground. See Black, The Marital and Physician Privileges — A Reprint of a Letter to a Congressman, 1975 Duke L.J. 45, 48 ("[H]owever intimate, however private, however embarrassing may be a disclosure by one spouse to another, or some fact discovered, within the privacies of marriage, by one spouse about another, that disclosure or fact can...