So, a ‘orrible crime has been committed, not by me. I come home and tell my spouse some exonerating evidence.
Time passes.
Said crime comes to light, and I am accused. Only problem: my spouse and I are on the rocks, and she doesn’t want to exonerate me.
Can she claim spousal privilege?
Swear to tell the truth, the whole truth,and nothing but the truth. If she is subpoenaed she will have to tell what she knows.
That ducks the question. Can she be subpoenaed, or is she protected by spousal privilege?
Y’all know that “spousal privilege” is voluntary, not mandatory, right? One spouse can testify against another any time he or she chooses.
Well, hold on a second. I can indeed prevent my spouse from testifying against me (with limited exceptions) regardless of her desires.
Even if this were true, it would have no relevance, since the wife is the one asserting it voluntarily, in an attempt to imply her husband told her something incriminating. When, in fact, he told her the opposite.
IANAL and don’t know much about privilege, but looking at the text of RCW 5.60.060(1), it appears that the consent of the accused spouse is necessary, but there’s nothing about consent by the one being examined.
So, I’d defer to anyone with actual experience in this area, but – under the Washington statute-- it looks like the wife in the OP has no more right than anyone else to refuse to testify. And I’m not clear what those generic rights are, so I’ll leave that to a real law-talking gal.
What can she testify to, anyway?
That you told her something that you think could exonerate you?
There’s nothing you could have told her that you can’t just tell your lawyers yourself. In fact, spousal privilege has nothing to do with this. IANAL, but I think her testimony would not be allowed due to the fact that it is “hearsay,” or second hand testimony. You can just get your lawyers to present your evidence themselves, either by using whatever it is to impeach prosecution witnesses, or by putting you on the stand.
Say, your former boss, who just fired you is murdered with a weapon identical to one that is registered to you. You are feeling suicidal due to being fired, so you take your gun out, but after deciding against suicide, you throw the gun in a lake so you won’t be tempted again. Then, you go home and tell your wife the whole story.
Later, the police want to do a ballistics test with your gun that is a little to conveniently gone, or so they think. Your wife won’t back up your story.
If she backed you up during the investigation, someone might have approved the expense to drag the lake, but as it is, they aren’t looking to help exonerate you. Your lawyer wants to put your wife on the stand under subpoena, because she won’t testify voluntarily, to act as a sort of outcry witness. The prosecution objects as it is “hearsay.” Probably, the judge is going to agree.
In any event, spousal privilege is meant to prevent her from testifying against you, not for you. There is no privilege that allows her not to testify for you. The idea is that spouses are in a sense a unit, and spousal privilege is an extension of self-incrimination. Testifying in someone’s favor has nothing to do with it.
What if she can say you were home with her at the time the crime was committed. Could she be made to testify to this fact, even if she was pissed and wanted you to be in trouble, for reasons?
I think this would depend on the evidence the prosecution has that places the OP at the bloody scene at the time of the murder … if the OP was home with spouse then there shouldn’t be any evidence to the contrary …
It’s generally a bad idea to drag someone into a court of law against their will to testify in your behalf … the DA did that to me and I tried everything I could to ruin her case … I was the defense attorney’s best friend that day I assure you …
Spousal privilege seems kind of dumb to me, it’s a relic of a previous legal principle that husband and wife were sort of “one person” in a legal fiction kind of way, but our laws no longer hold that’s the case. So I don’t see why it’s really the case.
Why shouldn’t confidential communications with a girlfriend or boyfriend be protected in the same way as confidential communications with a spouse?
Does spousal privilege apply when the victim of the crime is the wife? I should certainly hope not.
One thing I can think of: anyone can claim to be girlfriend or boyfriend; it’s not a legally established status.
No, that’s an exception.
I’m not sure that’s really the original justification.
The description I remember of spousal privilege is that it’s based on the idea that spouses should be free to communicate and consult with each other without fearing it might be used against them (which is pretty close to the reason for privilege for religous, medical or legal counselors).
So the idea isn’t that husband and wife are one person at all; it’s that they’re two people who need to communicate.
This is a really interesting twist on the marital privileges questions I’ve seen. I’ll bet something similar is a law school hypothetical somewhere. One issue with the hypothetical is that the information is of very limited persuasive value. If the defendant saying to his wife that he didn’t do something were enough to get him off, then saying it in open court should have the same effect. It doesn’t become terribly more persuasive just because he gave his wife the same alibi earlier.
You don’t give us a location, so I’ll just discuss federal rules of evidence. Under Federal Rules of Evidence 501, testimonial privileges “shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.” Well that doesn’t tell us much.
Federal courts have recognized two potential privileges under your facts. The first is the spousal testimonial privilege. This generally says that the wife could not be forced to testify against her husband in a criminal trial to preserve marital harmony. This is the Law and Order rush to the wedding chapel privilege. As long as the wife is validly married to the husband, she can decline to testify about anything that would be opposed to her husband, whether it’s events or statements that happened before the wedding, about things her husband said to her, or even about things her husband doesn’t know at all. The privilege belongs to the witness spouse; if she wants to testify she can. The courts assume that if the wife wants to testify against her husband, there is no marital harmony to preserve.
If it’s available to her, she would choose to exercise it here because she doesn’t want to testify. But if she refuses to testify on her husband’s behalf, there my be no more marital harmony to preserve and the policy reasons for the privilege would not apply. My hunch is that she would not be able to invoke the privilege but I’m not certain. I would need to do some research.
The second privilege is the marital communications privilege. It applies to:
(1) communications, which can be words or communicative acts like gestures,
(2) between spouses,
(3) that are confidential.
The marital communication privilege belongs to both spouses, so the husband could prevent the wife from testifying about confidential communications even if the wife wanted to testify. Similarly, the wife can insist on preserving the confidential information.
In your hypothetical, the husband clearly communicated to his wife, so (1) and (2) are satisfied. Was the communication confidential? The husband originated the communication and he is now willing to discuss it with anyone who will listen. Was it confidential when he made the statement to his wife? Had he already told other people the information? It’s not clear in your hypothetical, but these facts might change whether this was really a confidential communication. Another issue is – did he tell his wife because he expected or wanted her to tell a third party? If he made the statement so she could testify at his trial later, the communication would not be confidential and no privilege would attach.
The marital communications privilege also survives after divorce, so the later failure of their marriage does not eliminate the privilege. But, if the communication was made when their relationship was already beyond saving, for the same policy reasons discussed above, the privilege may not apply. Again, I’d need to do more research.
Finally, the privilege can be waived. Clearly he is waiving it. I’m not sure that the wife has any recourse if she wants to assert the privilege in her husband’s trial.
Short answer – I think there are valid policy reasons to expect that the wife could be required to testify but I’m not certain she could be forced to testify.
Under the Federal Rules of Evidence, there is an exception to the hearsay rule for a “declarant witness’s prior statement.” If the husband testifies, he can offer evidence of his prior out of court statements to (among other reasons) rebut an express or implied charge that he recently fabricated his statement or acted from a recent improper influence or motive in for his testimony; or to rehabilitate his credibility as a witness when attacked on another ground. Federal Rule of Evidence 801(d)(B). He couldn’t offer her testimony in place of his however. He would have to testify first and her statement could only be offered if it is needed as rebuttal evidence.
It still has a role in promoting marital harmony and trust between spouses. Whether that benefit outweighs the cost in excluding probative information in trials is outside the realm of GQ.
I believe (my brother’s a lawyer) that’s the justification now, but the Wikipedia page suggests the original justification in English law was that the wife was not considered a separate person, so spousal privilege was considered an extension of the law against self incrimination.
IANAL -
I would think too that “he was home here with me” -simple physical presence - does not qualify as privileged communication so the defendant’s consent is irrelevant.
So the question is if the spouse’s own privilege applies in the case of exonerating testimony - can the wife be forced to testify that her husband was home if she does not want to? Or can she only refuse to testify in incriminating? I would think removing the option opens the door to implication if the case were the opposite - “If he was home and innocent, you would have to tell us that. Therefore he was not home and is guilty.” This is the whole reason why the defendant is not forced to testify, so by inference the spouse’s testimony should also be voluntary if one is not supposed to draw implications from testimony or lack of testimony.
Thank you everyone, particularly Tired and Cranky for excellent insights and analysis. I think it is the best answer I’ll get for my hypothetical.
I specifically did not include the crime, because I didn’t want it to become the focus or a tangent. Also, I couldn’t think of a really good one that wouldn’t have additional holes to distract from my root question up there.
My original thought about the crime: I come home and tell my wife, “Sorry I was late getting home on your birthday. I was crunching some numbers on Acme Corp, and I think they suck. I’m going to sell all of our stock.”
Unbeknownst to me, the board of directors for Acme meet and decide to declare bankruptcy, AFTER my private conversation with my wife. I sell my stocks around the same time as several people with connections to the board, before the meeting becomes public. I am tried for insider trading.