# Spousal Privilege Question 732... **URL:** \ **Category:** Factual Questions\ **Created:** [October 31, 2017, 2:42am UTC](https://boards.straightdope.com/t/spousal-privilege-question-732/800261 "2017-10-31T02:42:29Z")\ **Posts on this page:** 9\ **Page:** 2
**Author:** ![Lemur866](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lemur866/32/434_2.png) [@Lemur866](https://boards.straightdope.com/u/Lemur866)\ **Post date:** [November 2, 2017, 3:32am UTC](https://boards.straightdope.com/t/spousal-privilege-question-732/800261/21 "2017-11-02T03:32:28Z")
Except your communication with your wife about “Hey, I’m gonna innocently sell some stock!” wouldn’t exonerate you from the insider trading charge. It’s just you telling your wife that you’re innocent. That’s not evidence of innocence. ---
**Author:** ![Lemur866](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lemur866/32/434_2.png) [@Lemur866](https://boards.straightdope.com/u/Lemur866)\ **Post date:** [November 2, 2017, 3:47am UTC](https://boards.straightdope.com/t/spousal-privilege-question-732/800261/22 "2017-11-02T03:47:22Z")
In other words, your wife testifying “My husband told me he wasn’t doing insider trading, after all, why would he tell me he wasn’t doing insider trading unless he wasn’t doing insider trading?” is not evidence of anything. Consider the other way. The husband testifies, “I told my wife I wasn’t doing insider trading.” Is that evidence that you’re innocent? Even if it was established as a fact that you told your wife that you were innocent, that’s worthless. The fact that you told a story about your innocence, whether you actually told the story or made up a story about telling the story, is not evidence. Yeah, if you want to get on the stand and tell the jury what you told your wife…that you wanted to sell for such and such reasons, and so you did, and you didn’t know about the board, go ahead and tell that to the jury. That’s worthwhile. Whether you told the same story to your wife is irrelevant. And of course, whether you are accused of insider trading or murder or jaywalking doesn’t matter. The fact that at one point you told someone a story about how you certainly weren’t out murdering your brother doesn’t mean you didn’t murder your brother, it just means you told a story about how you didn’t murder your brother. ---
**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:** [November 2, 2017, 4:09am UTC](https://boards.straightdope.com/t/spousal-privilege-question-732/800261/23 "2017-11-02T04:09:17Z")
I think the hypothetical works if the wife can remember and fix the time: “My husband came home from work and said this to me immediately. It must have been before 5:45pm, because our son had not been dropped off by his soccer carpool yet.” The husband would have had to have left the office at 5:15 to be home by 5:45 with traffic conditions at the time. The board meeting minutes show that the meeting commenced at 5:30, the resolution to declare bankruptcy was reached at 6:15, and the meeting adjourned at 6:45. So I guess the wife’s testimony is comparable to a rape victim’s “outcry” witness. ---
**Author:** ![ishamael69](https://avatars.discourse-cdn.com/v4/letter/i/b9e5f3/32.png) [@ishamael69](https://boards.straightdope.com/u/ishamael69)\ **Post date:** [November 2, 2017, 4:26am UTC](https://boards.straightdope.com/t/spousal-privilege-question-732/800261/24 "2017-11-02T04:26:11Z")
1. This is why I didn’t include the crime in the first post 🙂 2. I specifically say that I tell the wife of the decision BEFORE the board even meets, and I mention it is on her birthday, so she’ll have a reason to know exactly when it was. “Your honor, my husband told me on Tuesday night, it was my birthday. I was upset at him being late.” Perhaps the board did not meet until Wednesday morning. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [November 2, 2017, 4:54pm UTC](https://boards.straightdope.com/t/spousal-privilege-question-732/800261/25 "2017-11-02T16:54:19Z")
Regardless, if you as an accountant for Acme have access to numbers the general public does not, and use those, it’s insider trading to back to point #1… I would say that lemur’s point is valid- what you told your wife about your trading, murder, or jaywalking has very little value. Whether it passes the hearsay test or not, that’s basically what it is - you could say anything. I guess the main question here is - how does spousal privilege work? Is it like witnesses invoking the fifth? “I refuse to testify on the grounds of…” once already on the stand? But has to testify about other stuff? Or does the defense lawyer object or nobody can call the wife as witness if she has already stated an objection? Then, are the judge’s instructions to jury same as a fifth plea - “cannot infer anything from refusal…”? Or is the jury free to decide its own mind why testimony was not forthcoming? ---
**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:** [November 2, 2017, 6:16pm UTC](https://boards.straightdope.com/t/spousal-privilege-question-732/800261/26 "2017-11-02T18:16:21Z")
> [@t-bonham@scc.net](#): > > It’s hearsay – nothing she saw herself, just what she heard you say. > [@Lemur866](#): > > Except your communication with your wife about “Hey, I’m gonna innocently sell some stock!” wouldn’t exonerate you from the insider trading charge. It’s just you telling your wife that you’re innocent. That’s not evidence of innocence. As noted by **Tired and Cranky** , it is admissible evidence to rebut a claim of “recent fabrication” - that is, the defendant’s present testimony is given more weight if it is consistent with things the defendant said closer to the time of the events (and before he was caught). > [@md2000](#): > > 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? > > Then, are the judge’s instructions to jury same as a fifth plea - “cannot infer anything from refusal…”? Or is the jury free to decide its own mind why testimony was not forthcoming? There are two “spousal privileges.” One is the confidential marital communications privilege, which generally speaking the testifying spouse may assert in order to refuse to testify about confidential statements. This applies to any confidential statement made during a marriage, whether or not the couple is still married. The other is the true spousal privilege, which generally either spouse may assert to prevent the testifying spouse from having to testify _at all_. This only attaches so long as the couple is still married. There are no instructions from the judge to the jury. Any testimony which is barred by the privileges will have been hashed out via pretrial motions. Questioning which calls for privileged answers is likely to lead to a mistrial. ---
**Author:** ![DrCube](https://avatars.discourse-cdn.com/v4/letter/d/a3d4f5/32.png) [@DrCube](https://boards.straightdope.com/u/DrCube)\ **Post date:** [November 2, 2017, 7:53pm UTC](https://boards.straightdope.com/t/spousal-privilege-question-732/800261/27 "2017-11-02T19:53:05Z")
> [@Lemur866](#): > > Except your communication with your wife about “Hey, I’m gonna innocently sell some stock!” wouldn’t exonerate you from the insider trading charge. It’s just you telling your wife that you’re innocent. That’s not evidence of innocence. It’s evidence that you made the decision to dump your stock _before_ the board’s decision to declare bankruptcy. So the executives who sold stock at the same time as you are guilty of insider trading, but you aren’t, because you had no insider information, despite selling suspiciously at the same time as the CEO. Say you’re the janitor at BigCorp, and could reasonably be suspected of eavesdropping on the board meeting. Your wife’s testimony on the timing of your decision to sell your stock seems, to this non-lawyer, to be extremely relevant. Through the whole thread I was thinking of an example where the OP’s question would be relevant, and couldn’t come up with one. But now that I hear it, I think it works. ---
**Author:** ![Tired\_and\_Cranky](https://avatars.discourse-cdn.com/v4/letter/t/a87d85/32.png) [@Tired\_and\_Cranky](https://boards.straightdope.com/u/Tired_and_Cranky)\ **Post date:** [November 2, 2017, 8:56pm UTC](https://boards.straightdope.com/t/spousal-privilege-question-732/800261/28 "2017-11-02T20:56:36Z")
> [@ishamael69](#): > > Thank you everyone, particularly Tired and Cranky… > > 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. You’re welcome. Pretty clever hypothetical. I think it works really well. I didn’t like leaving so much uninformed speculation in my answer so I did a little more research. For what it’s worth, I think my answer that the wife could be forced to testify to defend her husband is right. Courts looking at the question have repeatedly said that a wife (in the cases I looked at, it’s always been a wife) can only assert the spousal communication privilege or spousal testimonial privilege to decline to testify if the testimony is adverse to the husband. See U.S. v. Wilfried Van Cauwenberghe, 827 F.2d 424 (9th Cir. 1987) available at: [https://law.justia.com/cases/federal/appellate-courts/F2/827/424/3216/](https://law.justia.com/cases/federal/appellate-courts/F2/827/424/3216/) (co-defendant wife in a joint trial could not claim marital communication privilege to decline to testify to exonerate her husband because she could have testified on his behalf while claiming privilege to withhold any testimony that would have incriminated him). In re Martenson, 779 F.2d 461 (1985), available at: [IN RE MARTENSON | 779 F.2d 461 (1985) | f2d46111161 | Leagle.com](https://www.leagle.com/decision/19851240779f2d46111161) (adverse testimonial privilege only available if the wife has established that her testimony would be adverse to her husband). U.S. v. Smith, 742 F.2d 398 (1984), available at: [UNITED STATES v. SMITH | 742 F.2d 398 (1984) | f2d39811078 | Leagle.com](https://www.leagle.com/decision/19841140742f2d39811078), (while a wife’s testimony was adverse to her son, it wasn’t damaging to her husband so she couldn’t claim marital privilege over the testimony). ---
**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:** [November 3, 2017, 1:55pm UTC](https://boards.straightdope.com/t/spousal-privilege-question-732/800261/29 "2017-11-03T13:55:02Z")
> [@DrCube](#): > > It’s evidence that you made the decision to dump your stock _before_ the board’s decision to declare bankruptcy. So the executives who sold stock at the same time as you are guilty of insider trading, but you aren’t, because you had no insider information, despite selling suspiciously at the same time as the CEO. Say you’re the janitor at BigCorp, and could reasonably be suspected of eavesdropping on the board meeting. Your wife’s testimony on the timing of your decision to sell your stock seems, to this non-lawyer, to be extremely relevant. “BigCorp is going to declare bankruptcy and its board is going to dump their stock” is one example of insider trading. “BigCorp’s earnings for this quarter look bad, and its accountant is dumping their stock before the earnings information is published” is _also_ insider trading. [Previous page](https://boards.straightdope.com/t/spousal-privilege-question-732/800261.md?page=1)