# Spousal privilege--hypo for you law talking folks **URL:** \ **Category:** Factual Questions\ **Created:** [October 24, 2017, 3:15pm UTC](https://boards.straightdope.com/t/spousal-privilege-hypo-for-you-law-talking-folks/799724 "2017-10-24T15:15:04Z")\ **Posts on this page:** 17\ **Page:** 1
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [October 24, 2017, 3:15pm UTC](https://boards.straightdope.com/t/spousal-privilege-hypo-for-you-law-talking-folks/799724/1 "2017-10-24T15:15:04Z")
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. ---
**Author:** ![TriPolar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tripolar/32/3008_2.png) [@TriPolar](https://boards.straightdope.com/u/TriPolar)\ **Post date:** [October 24, 2017, 3:22pm UTC](https://boards.straightdope.com/t/spousal-privilege-hypo-for-you-law-talking-folks/799724/2 "2017-10-24T15:22:50Z")
Which state it is matters, I think. IIRC some states only apply the privilege to the spouse, who may testify if he/she wishes. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [October 24, 2017, 3:32pm UTC](https://boards.straightdope.com/t/spousal-privilege-hypo-for-you-law-talking-folks/799724/3 "2017-10-24T15:32:00Z")
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. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [October 24, 2017, 3:32pm UTC](https://boards.straightdope.com/t/spousal-privilege-hypo-for-you-law-talking-folks/799724/4 "2017-10-24T15:32:11Z")
> [@UltraVires](#): > > 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. 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.” > [@](#): > > A spouse or domestic partner shall not be examined for or against his or her spouse or domestic partner, without the consent of the spouse or domestic partner; nor can either during marriage or during the domestic partnership or afterward, be without the consent of the other, examined as to any communication made by one to the other during the marriage or the domestic partnership. Exceptions apply, of course, but none relevant to this discussion. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [October 24, 2017, 3:52pm UTC](https://boards.straightdope.com/t/spousal-privilege-hypo-for-you-law-talking-folks/799724/5 "2017-10-24T15:52:47Z")
> [@TriPolar](#): > > Which state it is matters, I think. IIRC some states only apply the privilege to the spouse, who may testify if he/she wishes. 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. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [October 24, 2017, 4:13pm UTC](https://boards.straightdope.com/t/spousal-privilege-hypo-for-you-law-talking-folks/799724/6 "2017-10-24T16:13:21Z")
I’m moving this to GQ since it’s a factual question about legal procedures. ---
**Author:** ![RivkahChaya](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rivkahchaya/32/8919_2.png) [@RivkahChaya](https://boards.straightdope.com/u/RivkahChaya)\ **Post date:** [October 24, 2017, 4:32pm UTC](https://boards.straightdope.com/t/spousal-privilege-hypo-for-you-law-talking-folks/799724/7 "2017-10-24T16:32:26Z")
> [@Northern\_Piper](#): > > 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. 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. ---
**Author:** ![TriPolar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tripolar/32/3008_2.png) [@TriPolar](https://boards.straightdope.com/u/TriPolar)\ **Post date:** [October 24, 2017, 4:48pm UTC](https://boards.straightdope.com/t/spousal-privilege-hypo-for-you-law-talking-folks/799724/8 "2017-10-24T16:48:49Z")
> [@UltraVires](#): > > 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. Ok, I get what you’re saying. You need better legal advice than I can give, but the [wiki](https://en.wikipedia.org/wiki/Spousal_privilege) does indicates the communication privilege is pretty strong. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [October 24, 2017, 5:04pm UTC](https://boards.straightdope.com/t/spousal-privilege-hypo-for-you-law-talking-folks/799724/9 "2017-10-24T17:04:40Z")
> [@RivkahChaya](#): > > 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. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [October 24, 2017, 5:29pm UTC](https://boards.straightdope.com/t/spousal-privilege-hypo-for-you-law-talking-folks/799724/10 "2017-10-24T17:29:10Z")
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. Law review article [here](http://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=2134&context=lawreview). ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [October 24, 2017, 6:27pm UTC](https://boards.straightdope.com/t/spousal-privilege-hypo-for-you-law-talking-folks/799724/11 "2017-10-24T18:27:37Z")
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. > [@](#): > > The second time Priscilla was called to testify, the State elicited testimony from her regarding Kaczmar’s plan to frame Modlin for Ruiz’s murder. Priscilla testified that around March 10, 2010, Kaczmar asked Priscilla to gather $300. When asked by the State if Kaczmar told her what the money was for, Priscilla testified, “For his friend that was going to help him with whatever he was going to do.” When asked who this friend was, Priscilla identified William Filancia, Kaczmar’s cellmate, as the person who would help him. When asked if Kaczmar told her what the $300 would be used for, Priscilla testified, “to plant clothes and a knife for Ryan [Modlin].” When asked if Kaczmar told her what to do with the $300, Priscilla testified, “He asked me to wear a blue smock” and “to meet up with [Carlos] . . . at McDonald’s.” These communications were privileged because Kaczmar had a reasonable expectation of privacy while speaking privately with his wife, and thus, admitting this testimony was error. _See Taylor v. State_, 855 So. 2d 1, 27 n.30 (Fla. 2003) (noting that the spouses’ reasonable expectations of privacy are not waived merely because a husband and wife communicated while in jail). 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: > [@](#): > > 90.504 Husband-wife privilege.— > (1) A spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife. > (2) The privilege may be claimed by either spouse or by the guardian or conservator of a spouse. The authority of a spouse, or guardian or conservator of a spouse, to claim the privilege is presumed in the absence of contrary evidence. > (3) There is no privilege under this section: > **(a) In a proceeding brought by or on behalf of one spouse against the other spouse. > (b) In a criminal proceeding in which one spouse is charged with a crime committed at any time against the person or property of the other spouse, or the person or property of a child of either. > (c) In a criminal proceeding in which the communication is offered in evidence by a defendant-spouse who is one of the spouses between whom the communication was made.** ---
**Author:** ![Barrett\_Bonden](https://avatars.discourse-cdn.com/v4/letter/b/5e9695/32.png) [@Barrett\_Bonden](https://boards.straightdope.com/u/Barrett_Bonden)\ **Post date:** [October 24, 2017, 7:06pm UTC](https://boards.straightdope.com/t/spousal-privilege-hypo-for-you-law-talking-folks/799724/12 "2017-10-24T19:06:55Z")
> [@RivkahChaya](#): > > 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. What about in Great Britain, WWII-era? Wasn’t that pertinent to the book and movie Atonement? (I guess the movie came out ten years ago so it probably doesn’t \ ***need** \*a spoiler box.) ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [October 24, 2017, 7:29pm UTC](https://boards.straightdope.com/t/spousal-privilege-hypo-for-you-law-talking-folks/799724/13 "2017-10-24T19:29:09Z")
> [@RivkahChaya](#): > > 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. 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). ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [October 24, 2017, 10:36pm UTC](https://boards.straightdope.com/t/spousal-privilege-hypo-for-you-law-talking-folks/799724/14 "2017-10-24T22:36:25Z")
> [@Really\_Not\_All\_That\_Bright](#): > > 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: 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. 🙂 ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 24, 2017, 11:46pm UTC](https://boards.straightdope.com/t/spousal-privilege-hypo-for-you-law-talking-folks/799724/15 "2017-10-24T23:46:48Z")
> [@UltraVires](#): > > I’m still beating up on the judge, but he is not seeing it my way. 🙂 Preserve your record. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [October 25, 2017, 1:42pm UTC](https://boards.straightdope.com/t/spousal-privilege-hypo-for-you-law-talking-folks/799724/16 "2017-10-25T13:42:36Z")
> [@UltraVires](#): > > 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. 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.” 😃 ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [October 25, 2017, 4:47pm UTC](https://boards.straightdope.com/t/spousal-privilege-hypo-for-you-law-talking-folks/799724/17 "2017-10-25T16:47:12Z")
> [@Really\_Not\_All\_That\_Bright](#): > > 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.”