Evidence: Spousal Privilege

It’s Valentine’s Day and love is in the air! But what happens when love goes sour? Prosecutors pounce!

It was 1998, and I was prosecuting an Army court-martial. The charge was murder. The defendant and a fellow Army sergeant brought the victim to the defendant’s house, where they proceeded to mistreat him in front of the defendant’s wife.

She told them they should leave.

They took him to an Air Force base in Colo. Springs and slit his throat. The victim’s body was found 9 months later.

The defendant went home, bloody, and washed his clothes.

After the victim’s body was discovered, the defendant and his wife were watching a movie, and he said, “if someone treated me like that, I’d kill him.”

His wife replied, “you could never kill anyone.”

He said, “I did, and I got away with it.”

She called the police.

Several months later, our intrepid hero, Captain Neff the prosecutor, had that same wife on the witness stand. He had prepared her to assiduously avoid mentioning what her husband had said and only talk about what she had seen.

But then, defense counsel stood up and proved the maxim, “cross-examination is more often suicide than homicide.”

He asked, “Isn’t it true that you have no direct knowledge that my client actually killed anyone?”

Oops.

“Your Honor, I ask for a 39a session,” said CPT Neff

(Jury leaves room)

“Judge, the defense opened the door to allow Mrs. X to answer the question by saying what the defendant told her.”

Judge: “CPT Neff, I agree. He HAS opened the door. But I’m not letting you walk through it.”

Sigh…

The marital privilege – also codified in Fed.R.Evid 501, which adopts the common law usage of privilege as discussed in Trammel v. United States, 445 U.S. 40 (1980) – has 2 aspects.

The 1st is testimonial and is available to either spouse. A lawyer can't force one to testify against her spouse. However, IF she does want to testify, she can waive the privilege, and the other spouse can't prevent it. This privilege does not survive dissolution of marriage.

The 2nd is the confidential communications aspect. These are things said within the confines of the marriage only to one another. And the other spouse CAN prevent the testifying spouse from discussing those communications. This privilege DOES survive dissolution of the marriage.

We want to preserve love and the sanctity of marriage.

Example: Husband says to wife while alone: “I’m gonna kill that guy.” He later comes home with his partner and their clothes are bloody. “I can’t believe we killed him,” the husband says to his co-conspirator and his wife.

If the prosecutor can convince wife to testify, or if she divorces her husband, she can tell what she saw, can’t talk about what her husband said only to her, but can talk about what he said in the room with 3 people present.

My wife wouldn’t testify against me … would she? Nah. It’s Valentines Day! I love you, Mary Neff!