For lawyers: “You have the right...” Now what?

[Gfactor]

@acsenray

This doesn’t gel with my understanding of the spousal privilege. Unlike the physician-patient privilege (where it exists), which protects only communications regarding a specific topic (that is, medical information), the spousal privilege is a blanket privilege that covers all communications made within the context of a spousal relationship, regardless of the topic. If it were otherwise, it would hardly be a consequential privilege at all.

Actually, there is usually a testimonial privilege, where onespouse can refuse to testify against the other. E.g, http://michiganlegislature.org/mileg.asp?page=getObject&objName=mcl-600-2162&queryid=6111332

Therre is also an evidentiary privilege that protects spousal communications, see subsection (4).

A key issue is who may waive the privilege. If you are a criminal on trial, it would be nice to be able to preclude your spouse from testifying that you came home with a bloody knife, for instance. The statute in this example makes clear that the privilege belongs to the person against whom the testimony is offered.

[Gfactor]

@Gfactor

Actually, there is usually a testimonial privilege, where onespouse can refuse to testify against the other. E.g, http://michiganlegislature.org/mileg.asp?page=getObject&objName=mcl-600-2162&queryid=6111332

Therre is also an evidentiary privilege that protects spousal communications, see subsection (4).

A key issue is who may waive the privilege. If you are a criminal on trial, it would be nice to be able to preclude your spouse from testifying that you came home with a bloody knife, for instance. The statute in this example makes clear that the privilege belongs to the person against whom the testimony is offered.

Ok. I screwed up. As Willy Wonka said, “Strike that. Now reverse it.” Subsection (1) gives the spouse against whom the testimony is offered the right to object to their spouse testifying in civil and administrative cases. In criminal cases, the testifying spouse gets to decide.

Sorry for the mix-up.

600.2162 Husband or wife as witness for or against other.
Sec. 2162.

(1) In a civil action or administrative proceeding, a husband shall not be examined as a witness for or against his wife without her consent or a wife for or against her husband without his consent, except as provided in subsection (3).

(2) In a criminal prosecution, a husband shall not be examined as a witness for or against his wife without his consent or a wife for or against her husband without her consent, except as provided in subsection (3).

(3) The spousal privileges established in subsections (1) and (2) and the confidential communications privilege established in subsection (7) do not apply in any of the following:

(a) In a suit for divorce, separate maintenance, or annulment.

(b) In a prosecution for bigamy.

(c) In a prosecution for a crime committed against a child of either or both or a crime committed against an individual who is younger than 18 years of age.

(d) In a cause of action that grows out of a personal wrong or injury done by one to the other or that grows out of the refusal or neglect to furnish the spouse or children with suitable support.

(e) In a case of desertion or abandonment.

(f) In a case in which the husband or wife is a party to the record in a suit, action, or proceeding if the title to the separate property of the husband or wife called or offered as a witness, or if the title to property derived from, through, or under the husband or wife called or offered as a witness, is the subject matter in controversy or litigation in the suit, action, or proceeding, in opposition to the claim or interest of the other spouse, who is a party to the record in the suit, action, or proceeding. In all such cases, the husband or wife who makes the claim of title, or under or from whom the title is derived, shall be as competent to testify in relation to the separate property and the title to the separate property without the consent of the husband or wife, who is a party to the record in the suit, action, or proceeding, as though the marriage relation did not exist.
(4) Except as otherwise provided in subsections (5) and (6), a married person or a person who has been married previously shall not be examined in a civil action or administrative proceeding as to any communication made between that person and his or her spouse or former spouse during the marriage.

(5) A married person may be examined in a civil action or administrative proceeding, with his or her consent, as to any communication made between that person and his or her spouse during the marriage regarding a matter described in subsection (3).

(6) A person who has been married previously may be examined in a civil action or administrative proceeding, with his or her consent, as to any communication made between that person and his or her former spouse during the marriage regarding a matter described in subsection (3).

(7) Except as otherwise provided in subsection (3), a married person or a person who has been married previously shall not be examined in a criminal prosecution as to any communication made between that person and his or her spouse or former spouse during the marriage without the consent of the person to be examined.

(8) In an action or proceeding instituted by the husband or wife, in consequence of adultery, the husband and wife are not competent to testify.
History: 1961, Act 236, Eff. Jan. 1, 1963 ;–Am. 1994, Act 67, Imd. Eff. Apr. 11, 1994 ;–Am. 2000, Act 182, Eff. Oct. 1, 2000 ;–Am. 2001, Act 11, Imd. Eff. May 29, 2001 .

[Bricker]

@Bricker

To keep the record straight: within the United States, I am unaware of any juridsdiction that allows a privilege against incriminating “close family members” other than a spouse. Indeed, even in the case of a spouse, what’s protected is not “incrimination,” but confidential spousal communication. So even in a state that has the spousal privilege, a husband may be compelled to testify that he saw his wife commit a crime, or even that she confessed to him after the fact if someone else was also privvy to the conversation. The privilege does not exist when the communication is not private.

I was far too hasty when I typed the above. There is, as noted by others, a spousal testimonial privilege in some jurisdictions that applies to testimony of almost any type. There is a separate and distinct privilege against testifying concerning spousal communications, but this privilege is waived if the communication was made in the presence of a third party, and that’s what I was describing above.

And, again, in the US no other close family members have these privileges, so far as I am aware.

• Rick

[Alan_Smithee]

@acsenray

Even if your not guilty of anything at all, shut up. You will never help yourself by talking to the police without counsel.

That’s a blanket statement, acsenray. Surely if I’m pulled over and the cop says “Did you see that stop sign back there, sir?” a terse “Ain’t saying nothing without my lawyer,” is probably going to do me less good than, “Golly, Officer, was there a stop sign back there? I must have had my mind on something else, because usually I’m very careful about coming to a complete stop. I’ll certainly pay more attention from now on.” As I said above, I suspect that if I had cooperated with the police, I would have had a more satisfactory outcome, although the opposite is certainly possible, and I took the safest (if not best) course of action.

[Mister_Rik]

Of course, running a stop sign is generally considered a traffic infraction, not a crime. Failing to stop is not likely to get you arrested and jailed unless it was part of a larger offense, such as reckless driving, and even then, it’s the reckless driving that would get you arrested, not the failure to stop. Therefore, Miranda isn’t called for, and keeping silent is counterproductive.

[Acsenray]

I wouldn’t really consider that as being in custody, Alan Smithee. Also, in that case, we’re not talking crimes, we’re talking traffic violations. And the cop was a witness himself.

[Reader99]

this is a follow-up question to the discussion of spousal privilege. i understand that a husband/wife cannot generally be *compelled * to testify against the spouse regarding “a spousal communication,” but does the privilege mean that the husband/wife cannot choose to testify? to take an extreme example, if husband comes home in the middle of the night and tells wife “i just killed a cop, but nobody saw me, so we’ll just pretend it never happened,” is she *prohibited * from calling the police and saying “come and get my killer husband”? is she *prohibited * from testifying as to what he told her? can that possibly be right?

[Gfactor]

@Reader99

this is a follow-up question to the discussion of spousal privilege. i understand that a husband/wife cannot generally be *compelled * to testify against the spouse regarding “a spousal communication,” but does the privilege mean that the husband/wife cannot choose to testify? to take an extreme example, if husband comes home in the middle of the night and tells wife “i just killed a cop, but nobody saw me, so we’ll just pretend it never happened,” is she *prohibited * from calling the police and saying “come and get my killer husband”? is she *prohibited * from testifying as to what he told her? can that possibly be right?

According to the Michigan statute that I cited above, in a criminal trial the testifying spouse is the one whose consent is necessary. So in your hypothetical, yes the wife can testify.

[Alan_Smithee]

@acsenray

I wouldn’t really consider that as being in custody, Alan Smithee. Also, in that case, we’re not talking crimes, we’re talking traffic violations. And the cop was a witness himself.

Exactly, which is why I called you on a blanket statement that didn’t mention those qualifications. Besides, in my own case, I was Mirandized even though I wasn’t in custody. Do you think I should have waived my rights? (I understand that you are not my lawyer. I am not your client. I am not asking for and you are not providing legal advice.)

[Gfactor]

Here is a brand new supreme court case that involves the marital privilege. The decision turns on the Sixth Amendment confrontation rights.

[Gfactor]

@Gfactor

Here is a brand new supreme court case that involves the marital privilege. The decision turns on the Sixth Amendment confrontation rights.

ahem.

http://a257.g.akamaitech.net/7/257/2422/08mar20041045/www.supremecourtus.gov/opinions/03pdf/02-9410.pdf

[An_Authority]

I’m not a lawyer, but…
I think it’s important to recognize two things about the US:

1. Police are under no obligation to be honest in interactions with the public, incluing suspects.

2. Citizens are told and usually believe that refusal to cooperate will result in punishment.

Conclusion: You’re taking risks anytime you open your mouth about anything with the police because your perception of the situation can be so far off that you have no idea how what you say has anything to do with anything, nor how it will be used against you. Innocence is irrelavent.