Colorado's New Spousal Privilege
| Publication year | 1989 |
| Pages | 451 |
| Citation | Vol. 18 No. 3 Pg. 451 |
1989, March, Pg. 451. Colorado's New Spousal Privilege
From 1883, when the marital privilege was first adopted by the Colorado legislature, until the most recent revision of July 1, 1988, the spousal privilege in Colorado remained essentially unchanged. However, recent interpretations of the spousal privilege statute appear to have prompted the 1988 amendments. This article examines the traditional view on spousal privilege in Colorado and how that view changed after one landmark case. It also discusses the resulting amendments to the statute and some issues that remain arguable in the area of spousal privilege.
The beginning portion of CRS § 13-90-107 has read, and still reads in part, as follows:
Who may not testify without consent. (1)(a)(I). A husband shall not be examined for or against his wife without her consent, nor a wife for or against her husband without his consent; nor during the marriage or afterwards shall either be examined without the consent of the other as to any communications made by one to the other during the marriage. . . .
Until the Colorado Court of Appeals holding in People v. Lucero(fn1) and the subsequent Colorado Supreme Court ruling in the same case,(fn2) the courts tended to construe the statute strictly. In 1920, the Colorado Supreme Court held:
In more recent cases, the Colorado Supreme Court also interpreted Colorado's spousal privilege strictly. In Petro-Lewis Corp. v. District Court, the court stated "[W]e have held that the privilege obstructs the rightful search for truth, and must be strictly limited."(fn4) In another case, the same court wrote: "Section 13-90-107 applies to communications between spouses during their marriage."(fn5)The statute prohibits merely the examination of either husband or wife as to any communication made by one to the other during the marriage. To extend this prohibition to the exclusion of communications themselves is to give it a liberal construction, and thus prevent the ascertainment of truth as to a material issue in the case. The authorities are to the effect that the statute should be strictly construed, because the tendancy of the privilege is to prevent the full disclosure of the truth.(fn3)
The Lucero cases put an end to this strict interpretation. After Lucero, what previously had been seen as a strictly construed limitation of spousal testimony concerning confidential marital communications became a virtual carte blanche to stop spousal testimony. The courts in Colorado would no longer consider the argument that the 1883 Colorado legislature did not intend to expand the marital privilege beyond marital communications.
The Colorado Court of Appeals in Lucero picked up on some dicta in a concurring opinion from another case which interpreted Colorado's marital privilege as being one which "perpetuates the common-law doctrine of witness disqualification in the case...
To continue reading
Request your trial