Whither the Spousal Privilege

• Jurisdiction: California,United States
• Author: Steven Berenson
• Publication year: 2020
• Citation: Vol. 42 No. 3

Whither the Spousal Privilege

Steven Berenson

Steven Berenson serves as Senior Counsel with Klinedinst, P.C. in San Diego. His areas of practice include legal malpractice defense, state bar discipline, judicial discipline, legal ethics advising, family law and general civil litigation. Before joining Klinedinst, Berenson spent more than two decades as a full time law professor, teaching in areas including legal ethics and family law. Berenson founded and directed the Thomas Jefferson Veterans Legal Assistance Clinic from 2006-2019.

Some form of spousal privilege is one of the longest standing evidentiary privileges recognized by courts. Its origins date back to feudal England.¹ However, spousal privileges have been in a state of flux in recent decades, and courts and commentators have questioned the contemporary viability of this privilege. Indeed, last year, New Mexico became the first state to abolish the privilege for confidential marital communications. In State v. Gutierrez,² the defendant sought to prevent two former spouses of his from testifying regarding admissions he made to them about a homicide the defendant committed. The New Mexico Supreme Court concluded that prospectively it would no longer recognize the privilege for confidential spousal communications. The court also found that any error created by consideration of the former spouses' testimony at trial was harmless and sustained the defendant's conviction.

As the court noted, the spousal privilege has evolved over time, and different jurisdictions often apply confusingly inconsistent terminology.³ For the sake of clarity, the spousal privilege is best broken down into a disqualification for spousal testimony and a privilege rendering confidential communications between spouses inadmissible.⁴ Historically, pursuant to the spousal disqualification, either spouse could prevent the other spouse from testifying in a case involving the first spouse.⁵

In 1980, the U.S. Supreme Court last weighed into this area in the case of Trammell v. United States.⁶ In Trammel, federal prosecutors cut a deal with Mrs. Trammel, offering her leniency in exchange for her testimony against her husband relating to a conspiracy to import heroin into the United States from abroad in which both spouses participated.⁷ Mr. Trammel sought to prevent Mrs. Trammel's testimony based upon the spousal disqualification. While recognizing the longstanding application of such a spousal disqualification in federal courts, the Court overruled its precedent from the last time it considered the question,⁸ and it held that a spouse may not prevent the other spouse from testifying against them if the testifying spouse chooses to do so.⁹ However, the Court did not alter the privilege relating to confidential marital communications, and such remain inadmissible based upon the objection of either party. Thus, in Trammel, Ms. Trammel's trial testimony relating to her own involvement in the conspiracy, as well as her observations of her husband's actions in furtherance of the conspiracy were admissible. However, any testimony regarding confidential conversations between the two spouses would not have been admissible. Mr. Trammel's conviction, based upon his wife's testimony, was upheld.¹⁰

Trammel involved the application and interpretation of federal law. However, since Trammel, many states have adjusted their state evidentiary rules to conform with its holding. For example, California's spousal disqualification rule gives the testifying spouse the option whether or not to testify.¹¹ And California continues to recognize a privilege for confidential marital communications.¹² However, no other state has gone as far as New Mexico in abolishing both the spousal disqualification and the privilege for confidential marital communications entirely.¹³

In reaching its decision, the New Mexico Supreme Court considered arguments in favor of and against the privilege. First and foremost, the court considered the traditional justification for the privilege that marriage is a foundational relationship to a successful society and that providing a protected zone for confidential communications between spouses is a necessary ingredient to a successful marriage.¹⁴ The court described a second category of justifications for the privilege as "humanistic," for example focusing on the "natural repugnance" that one spouse would experience in being compelled to testify against the other spouse.¹⁵ A third...