This is a real case, but the facts have been changed to protect the guilty. Here it is:
A man comes home at midnight. His wife asks him where he has been. He tells her that he just murdered someone and that she is to tell anyone who asks that he was home with her all night.
The man and his wife get a divorce prior to trial.
The man goes to trial and the prosecution wishes the wife to testify about what the man said that night. He claims spousal communication privilege. The prosecution argues that since part of the communication (i.e. tell anyone who asks that he was there all night) was meant to be disclosed to third parties, it is not a protected communication.
I argue that the communication was not intended to be disclosed to third parties, merely that he instructed his wife to lie…which is a privileged communication.*
What say ye? And are there any cases from anywhere on this point?
*I understand that there are two privileges in play: testimonial and communication. For the purposes of the hypo, lets focus only on the marital communication aspect.
Yes, there can be great variation in this point. In Canada, spousal privilege is up to the spouse who received the communication, not the spouse who said it. It also ends if the marriage ends.
Under Washington law, it’s “any communication.” I’m not sure the defendant has to establish it was intended to be limited to “protected communications.”
Exceptions apply, of course, but none relevant to this discussion.
Again, though, I am not talking about the testimonial privilege which in some states applies only to the testifying spouse. I am talking about the communication privilege, i.e. that communications make in confidence to one’s spouse during a marriage is protected. The latter is my only concern.
In the US, in all states that I’m aware of, spousal privilege does not continue after divorce, but it still covers communication that happened during the marriage.
It also, sorry L&O, is not retroactive. You cannot marry someone to prevent them from disclosing communication prior to the marriage. If you weren’t married when it happened, no matter how married you are now, it’s not privileged. I keep waiting for this to happen on some TV show, somewhere-- that is, someone tries getting married to conceal previous communication, and the judge informs them it doesn’t work like that. It’s so pervasive on TV, though, there are people who have actually tried it in real life. It’s the legal maneuver equivalent of pulling an injured person out of a crashed car because it might blow up.
That’s generally correct with respect to the communications privilege. But the testimonial privilege could prevent testimony regarding communications from prior to the marriage as long as the couple is married at the time the testimony is sought. (Who can invoke the testimonial privilege varies by jurisdiction). So you may be able to marry someone to prevent them from testifying against you at all.
At least some courts would extend the crime-fraud exception to the spousal communication privilege where the communication involves obstruction of justice, conspiracy, and accessory after the fact status.
There is a kind-of-sort-of-on-point case in Florida, where the wife testified about what the husband told her was being done to cover up a murder. The wife testified that the husband told her to participate in the cover-up, but not directly to lie. The argument that the communications were privileged was sustained.
Kaczmar v. State, 104 So. 3d 990, 999 (Fla. 2012). It appears that the only exceptions to the privilege which are recognized in this state are the ones which appear in the evidence code, namely:
You are confusing spousal privilege (generally, the right of a spouse to refuse to testify against the other) with the [confidential] marital communications privilege (the right of either spouse to refuse to testify or allow testimony relating to private communications made during the marriage).
Thanks. That is sort of on point and helps me. It seems that Kaczmar knew that the contents of his conversation with his wife would be exposed to a third party (i.e. she would have $300, be dressed a certain way, and meet “Carlos”) however the fact that HE, Kaczmar told her to do all of this was privileged.
Likewise my hypothetical murderer did tell his wife to make up a certain story to tell third parties, but did not wish the communication itself, that is that he told her to tell this lie, to be exposed.
I’m still beating up on the judge, but he is not seeing it my way.
It would seem apparent that the fact that he told her to lie would be a confidential communication, since the lie wouldn’t be very effective if she immediately said, “well, that’s what my husband told me to say, anyway.”
Right, I believe that is my whole point and why I believe it is correct. If I tell my wife, “Honey, please tell your mother that at Christmas I puked all over her floor because I was sick, not because I was drunk” then it is implicit in that statement that I want my wife to make some disclosures to a third party (her mother), however I want the disclosure to be this:
“Mom, Ultravires was very sick at Christmas with the flu. That’s why he threw up on the floor.”
BUT CERTAINLY NOT THIS:
“Mom, Ultravires wanted me to tell you that he was sick with the flu at Christmas and that’s why he puked on the floor, even though he told me that the real reason was that he was drunk.”
