§504 Marital Privilege

• Library: Evidence Restated Deskbook (2021 Ed.)

§504 Marital Privilege

A. General rule of privilege. A spouse may testify against his or her spouse at the testifying spouse's option, provided no confidential communications are disclosed.

B. Exceptions. The bar of testimony in regard to confidential communications may be waived and is not applied in absolute terms; rather, there are exceptions based on good cause and public policy, which include testimony about:

1. threats of violence and crimes of violence by one spouse against the other spouse or a child of the other spouse;

2. communications related to future contemplated crime;

3. statements that have a bearing on fitness to have custody of children;

4. communications when necessary to prevent fraud on the spouse; and

5. communications between husband and wife that involve purely business matters.

Additionally, by statute, there is no marital privilege:

6. in criminal prosecutions involving a victim under the age of 18 years under Chapter 565, RSMo (offenses against the person), Chapter 566, RSMo (sexual offenses), or Chapter 568, RSMo (offenses against the family); and

7. in any proceeding for the termination of parental rights.

Notes

A. General rule of privilege

Section 546.260.1, RSMo 2016, abrogates the common law rule of general spousal testimonial incapacity. But in criminal cases, the statute protects confidential communications from disclosure.

Section 546.260.1 (emphasis added) provides as follows:

No person shall be incompetent to testify as a witness in any criminal cause or prosecution by reason of being the person on trial or examination, or by reason of being the husband or wife of the accused, but any such facts may be shown for the purpose of affecting the credibility of such witness; provided, that no person on trial or examination, nor wife or husband of such person, shall be required to testify, but any such person may testify at his or her option either on behalf of or against the defendant, and shall be liable to cross-examination, as to any matter referred to in his examination in chief, and may be contradicted and impeached as any other witness in the case; provided, that in no case shall husband or wife, when testifying under the provisions of this section, be permitted to disclose confidential communications had or made between them in the relation of such husband and wife.

Confidential communication privilege applicable to civil cases as well as criminal

Because, at common law, a spouse was not allowed to divulge confidential communications arising out of the marriage relationship, T.C.H. v. K.M.H., 693 S.W.2d 802, 803–04 (Mo. banc 1985); State v. Euell, 583 S.W.2d 173, 175 (Mo. 1979), a spouse should likewise be barred from disclosing confidential communications in civil cases, notwithstanding that a statute (§ 491.020) that specifically provided for the confidential communication privilege in civil cases was repealed in 1986. In regard to testimonial qualification in civil cases, see also:

· § 491.010.1, RSMo 2016 ("No person shall be disqualified as a witness in any civil suit or proceeding at law or in equity, by reason of his interest in the event of the same as a party or otherwise, but such interest may be shown for the purpose of affecting his credibility.")

· Moore v. Moore, 51 Mo. 118, 118 (1872) ("The language used [in the statute] is broad enough to embrace all persons who are parties to a suit, including husband and wife.")

Particular applications of the provision that a spouse is not required to testify in criminal jury trials are:

· directed in Rule 27.05 (Misdemeanors or Felonies) and Rule 37.63 (Statutory and Ordinance Violations and Violation Bureaus), both of which provide that a failure of the defendant or spouse to testify cannot be construed to affect the innocence or guilt of the accused, raise any presumption of guilt, be referred to by any attorney in the case, or be considered by the court or jury before whom the trial takes place; and

· contained in MAI-CR 4th 408.14.2 (2018) (instruction that must be given (if requested by either party) if the defendant's spouse does not testify: "Under the law, the (husband) (wife) of a defendant has the right not to testify. No inference of any kind may be drawn from the fact that the (husband) (wife) did not testify.").

Purpose of the privilege

The basis of the privilege is to encourage full disclosure and trust between spouses during the marriage relationship. State v. Hopkins, 140 S.W.3d 143, 159 (Mo. App. E.D. 2004). The value of admitting an item of evidence in a lawsuit is overridden "'by the seal of that absolute inviolability which the law places upon the hallowed intimacies of the marital relation.'" McPheeters v. McPheeters, 227 S.W. 872, 873 (Mo. App. S.D. 1921) (quoting Berlin v. Berlin, 52 Mo. 151, 152 (1873)).

Protects confidential communications made during a "valid" marital relationship

The privilege applies only to communications exchanged during a valid...