Welcome back to Lawyers & Liquor…hold on, I got a note here that tells me what the new branding is…”Your internet home for Law, Libations and Laughter.” Holy shit. That’s cheesy. Who the fuck wrote that?
I’m your good, dear friend, a cartoon badger née sentient whiskey glass that goes by a moniker of “Boozy” and after years away from doing this – specifically this – I’ve returned to my roots with poorly written articles on law, legal practice, current affairs, and (as last week exhibits) really whatever the hell I feel like putting up there.
Anyhow, I had several topics that I could get into: the world being on fire, why lawyers never retire, a general update on what I do now. And those are great for future posts. But the topic this week was actually suggested by a hermitic sheep rancher who lives in the high deserts of Southern California and is, I shit you not, named “Shepherd Shitposter McGee.” Shep, as every lawyer whose phone number they have and lives in fear of a phone call from has come to refer to him, asked on Bluesky last week “What, pray tell, are the limits of my spouse testifying against me in court?” Which was a little concerning, because as far as I know Shep isn’t actually married. It means he’s planning for future activities.
So, yeah, let’s do that. Let’s talk about the concepts of whether or not you can tell your spouse about your pending criminal activities or your criminal past with “Till Prosecution Do Us Part,” a discussion of marital privileges.
But first, a disclaimer.
If you’ve listened to Boozy’s Legal Funhouse, my podcast where I sit and describe a basic legal concept to the Certified Legal Layman through the use of a case as an example (available on most major podcasting services or you can listen to the latest episodes here on the site at the tab above) you know how this goes, slightly changed for format.
Lawyers & Liquor is an educational, informational, and hopefully entertaining website about law, legal practice, and basic legal concepts. What it is not is legal advice. When we talk about law on here it’s a very general overview, and this shit will vary from jurisdiction to jurisdiction – even if the jurisdictions are all interpreting the same law in some cases. I am an attorney, but I am not your attorney. The only way I’d become your attorney is if you were to come into my office, sit down, tell me your issues, I said I could help with that, you signed an engagement letter, and paid a retainer of my choosing (you don’t just get to PayPal me a buck and say I’m your lawyer, that’s not how this shit works). At least, that’s how you would do it if I was in private practice and accepted private clients but I’m not in private practice anymore.
What you need to do if you need an attorney or want more information about any of what we talk about is find an attorney licensed to practice law in your jurisdiction and consult with them. Again, this is not legal advice, there is no lawyer-client relationship, and no privileges or protections apply. Please, for the love of God, do not walk into court and say “A fat guy who acts like a cartoon badger on the internet told me about this.” It will not work out for you.
With all that out of the way, let’s get into talking about marital privileges.
Boozy, that sort of sounds like an old-timey euphemism.
Well, it’s not my friendly and imaginary-yet-convenient strawman for the audience. It’s been a while, good to have you back.
Yeah yeah, pleasantries and all. Anyhow, again, explain to me how “marital privilege” isn’t some strange euphemism for “wifely duties” or something.
Okay, well, first of all that’s a bit disgusting. Second, what “marital privilege” actually refers to is the legal bar against one spouse being compelled into giving evidence (in some form) against another spouse in a court of law. Some form of this privilege, also called the “spousal privilege,” exists in every state in the United States. That’s the quick and dirty explanation of it – but of course, it can’t really be that easy, because if it was this whole post would be nothing but an exercise in masturbatory academia, wouldn’t it?
There are really two forms of privilege at play when a lawyer speaks about a spousal or marital privilege, and while they’re similar they aren’t identical at all – in fact, there are some pretty big differences between them when you actually look into it.
First, there’s the “marital communications privilege.” This is a privilege that, when asserted, can bar the compelled testimony about communications between spouses.
Second, there’s the “spousal testimony privilege” or, as the 9th Circuit called it, the “Anti-Marital Fact Privilege” which, let’s just be honest, is a bit of a mouthful. This one, once asserted, prevents one spouse from being required to testify regarding facts against the other spouse.
Wait, doesn’t the first one fall under the second one? Like, if you can’t force a spouse to give testimony at all aren’t you barring any testimony about communications?
I mean, both yes and no? Shit’s never going to be that simple otherwise evidence casebooks would be a lot shorter than they are, right?
While one will necessarily subsume the other in a lot of cases where everyone is married, happy together, has no desire to see the other found guilty for shit – assuming exceptions don’t apply (we’ll get to that) – it’s important to understand that the two privileges are very different things that apply – or don’t apply – in very different situations.
Alright, I’ll bite. How are they different?
Okay, let’s explain it with an example: Peter and Paul Puff are married. Peter tells Paul that he hates Mary and wouldn’t be sad if something happened to her. The next day Paul watches Peter load a gun and leave the house. When he comes home he’s covered in blood and has Mary’s handbag on him, which he buries in the back yard. When Paul asks about it, Peter says “I took care of that bitch.”
Peter is arrested and charged with murder. When the case goes to trial, the prosecutor calls Paul to the stand. Can the prosecutor force Paul to testify about anything he saw or heard Peter do?
…It really sounds to me like Paul has terrible taste in partners.
Let’s not get off topic here.
Okay, no. The prosecutor can’t force Paul to testify because of the spousal testimony privilege.
Right! The prosecutor would be asking Paul to testify about facts, right? Seeing Peter load the gun, that Peter left the house armed, that Peter came home covered in blood and buried the victim’s handbag in the backyard – all of those are facts that the Spousal Testimony Privilege protects against. More than that, though, Peter’s statements about not being sad if something happened to Mary and “tak[ing] care of that bitch” were direct communications in the course of the marriage so that’s the Marital Communications Privilege. Under those facts there’s no set of circumstances in which Paul could be forced to testify against Peter.
So Peter, without that testimony, is found not guilty. But Mary’s adult son, Jackie Paper, is more than convinced that Peter is responsible for his mother’s death so he hires a real dragon of a plaintiff’s lawyer who files a wrongful death action against Peter seeking to have him found civilly liable. At the trial on the matter, Jackie’s lawyer calls Paul to testify as to the events in Peter and Paul’s house the day before and the day of Mary’s disappearance. Peter’s lawyer immediately objects on the grounds of the marital privileges. What happens?
This is a trick question, isn’t it? The answer to the last one was “No, Paul can’t be forced to testify” so the answer to this one is “Yes, he can be forced to testify,” isn’t it? I’m on to your shit.
Dang. I figured I’d get you on that one.
Alright, so why can Paul be forced to testify this time?
Well, actually, we can’t say that he will be.
…Oh god, don’t say it…
Because it depends.
Goddammit.
I’ve missed you too.
See, what would most likely happen right here is either Peter’s lawyer would ask for, or Jackie’s lawyer would ask to make, an offer of proof. That’s just a fancy legal term for “Without going into a lot of detail, and recognizing this can’t be taken for any evidentiary value, let me tell you what I’m going to ask Paul to testify about. Once I do, your benevolent judgeship, you’ll understand why Peter’s lawyer is a dipshit and you should overrule their objection.”
So imagine Jackie’s lawyer says “Your honor, I’m only going to ask Paul about what he saw the morning Mary went missing and what he saw that evening when Peter returned home, I’m not going to ask about anything Peter said.”
Believe it or not, that’s perfectly fine because one of the major differences between the Marital Communications Privilege and the Spousal Testimony Privilege is the former applies in both civil and criminal proceedings, but the latter only applies in criminal proceedings. So Jackie’s lawyer couldn’t call Paul to testify about what Peter said to him but could call Paul to testify about what Peter witnessed.
But let’s say that, instead of saying “I took care of that bitch” Peter had said “I’m going to kill that bitch” instead of “Something should happen to her.” Could Paul be forced to testify about that?
No, not in either a civil or a criminal matter because it would be asking him to testify about a marital communication.
Ah, but you’re wrong. Don’t take it too hard, you literally exist as a writing device to be incorrect.
Like most communication privileges, there are exceptions to a Marital Communications Privilege. None of these are at all unique right off the bat, and in fact are the same types of exceptions that apply to most communications privileges (except the attorney-client privilege which gets a little more protection, we’ll talk about that at some point in the future). First, the communication has to be a communication. Conduct isn’t covered by it if that conduct is not primarily a form of communication. Second, it has to be intended to be confidential. Your spouse can be called to testify about stuff you post online, or say in a meeting, or say in front of someone else because the key to the privilege is it protects communications that were meant to be made solely between spouses. Third, it doesn’t extend to communications related to present or future crimes – only to communications related to crimes that have already been committed.
So in this scenario, where Peter said “I am going to kill that bitch,” he’s relating an intent to commit a future crime, and thus that communication falls outside of the privilege. However, his communication after he came home that he “took care of that bitch” arguably is within the privilege, because it pertains to a crime he committed prior to making the statement.
The lesson here is don’t tell your spouse about crimes you intend to commit.
Let’s say my spouse wants to tell people about my criming though?
That’s a good question, and it all comes down to another question which is “Who holds the privilege?”
What, pray tell, does that mean?
“Who holds the privilege” is just a fancy legal way of saying “Who has the right to assert the privilege bars testimony and/or disclosure.”
So, let’s go back to our example: Let’s say Peter goes to trial on the criminal charges of murdering Mary. Paul is called to testify about the comments Peter made (we’re reverting back to the comments where there is no explicit statement of an intent to commit a crime here). Paul has simply had enough of Peter, and for obvious reasons considering the man is coming home with the bloodied fashion accessories of his coworkers and burying them in the backyard. So when the prosecutor reaches out to Paul, he agrees to testify. At the trial, the prosecutor states he intends to call Paul to testify about Peter’s statements the night before and the night of the murder. Can Peter stop this?
It would make sense if he could, since he’s the defendant and the privilege would exist to protect him.
You’re right, but for the wrong reason. In the majority of jurisdictions, and federally, the Marital Communications Privilege belongs to both spouses, meaning either one of them can assert it at trial. Peter and Paul can both say “Paul can’t testify about what was said.” Likewise, even if Paul wants to testify about the communications, Peter retains the right to say “No, you can’t call him to testify about what I said.”
The reason for this is actually one of public policy and why the privilege exists. See, the public policy in a lot of places is in favor of protecting and promoting marital relations. To that extent, the public policy wants to promote open communication between spouses when those communications are meant to be confidential in nature. So, in order to facilitate that, the law has decided that confidential communications between spouses – not subject to the exceptions – are more or less sacrosanct. As such, it makes sense for either spouse to refuse to disclose such communications and bar the other from doing so.
But let’s say Paul isn’t being called to testify about the communications, but rather is being called to testify about the fact Peter came home with a bloodied handbag he buried in the backyard. Paul wants to cooperate and testify about this, but obviously Peter would prefer he doesn’t. Can Peter stop Paul from testifying about his actions and not his communications?
It’s a criminal case, so yes. Peter could assert the privilege and bar Paul from testifying.
That would make sense, right? It would fall under the same public policy being served – the sanctity of marriage and encouraging open interaction between spouses, right?
Which is why even though the answer is actually “it depends on where you are,” the real answer is “No.”
…Explain.
Well, for the first part of “it depends on where you are” that goes again to the question of “Who holds the privilege?” Federally, and (last I checked – but don’t rely solely on my checking, it’s been years, I don’t run into this shit very often in my practice anymore) in the majority of state jurisdictions, the Spousal Testimony Privilege doesn’t belong to the defendant-spouse. It belongs to the testifying spouse. That means, in the majority of jurisdictions, Paul could choose to testify against Peter (though not about confidential communications made in the course of the marriage) regardless of what Peter thinks about it.
This is because the public policy addressed by the Spousal Testimony Privilege isn’t the same as the public policy purpose behind the Marital Communications Privilege. In the Marital Communications Privilege, the public policy is – as mentioned above – to encourage the open communication between spouses in a marriage without fear those communications will be used against them in court. However, the Spousal Testimony Privilege has the public purpose not of encouraging communication but rather of preserving the marriage free of strife. As you might imagine, if one spouse testifies against the other in a criminal case it may cause a little bit of an issue on the next date night. So the privilege is meant to prevent that.
However, the law can safely presume that if one spouse is willing to testify against the other in a criminal proceeding the preservation of the marriage likely isn’t a concern of theirs anymore. It’s hard to imagine a more hostile marital setting than being ready and willing to put your Honeybear in the slammer for a while. So, since the public purpose is to prevent strife in the marriage in an effort to preserve it, in the majority of jurisdictions the courts have decided that purpose is not actually served when the testifying spouse doesn’t care about preserving the privilege anymore.
Like I said: these are two different privileges in many ways, despite the fact we often discuss them under a blanket category.
Okay, but if the purpose of the Testimony Privilege is to prevent marital strife why doesn’t it also apply in civil cases? I mean, it would probably cause some strife if my wife were to testify in a case where someone’s trying to get all of my money.
That’s right, it probably would – especially since a lot of married couples have their finances intermingled. In our example, for instance, Peter may be the primary breadwinner in the family and his assets and finances may support Paul. Paul would have a vested interest in making sure Peter’s financial abilities aren’t interrupted, and Paul being forced to testify as to actions that could impact those finances is almost certain to lead to marital strife. So why don’t we apply the testimonial privilege in civil cases if the purpose of the privilege is to prevent marital strife?
The answer to that is simple: Even the defendant-spouse can be called to give testimony against themselves in a civil matter. The bar against self-incrimination, which prevents testimony in a criminal matter, does not necessarily always apply in the civil context. For instance, when O.J. Simpson was acquitted criminally, he was no longer under any threat of prosecution even if he did commit the murders when the civil case was brought. Which is why he was actually called to testify in that case – he no longer had the disability of potential prosecution to contend with, and thus was not entitled to the blanket protection of the Fifth Amendment. Instead, in the civil context in many jurisdictions a defendant – while not deprived of the right to assert the Fifth Amendment – must actually take the stand and assert it to the questions actually posed to them and cannot just refuse to testify.
Where a defendant lacks the ability to refuse to testify, it makes no sense to allow the spouse to refuse to testify. The risk of marital strife is, arguable and in the majority of jurisdictions, no greater than the risk of marital disharmony arising from the defendant testifying. Because of that, the public policy is not served by allowing a witness-spouse to refuse to testify about acts and events but not communications.
Hell, it can even get more fun than that.
We have wildly different definitions of the word “fun.”
Yep, we do, I’m a dork about this stuff. That’s why we’re at…7 pages of talking about it, according to the page counter right now.
Let’s dance back over to our example of Peter, Paul, and Murdered Mary. Say Peter and Paul were engaged but not yet married. Peter, the day before the wedding, has a flash of conscience and confesses to Paul that he murdered Mary in a fit of rage a couple months prior. Paul doesn’t believe him, so Peter takes him out to the woods and shows him where he buried Mary’s body. Paul, never really one known for his good taste and foresight, decides to go ahead with the wedding. A year later Peter is arrested and hauled into court. The prosecutor calls Paul to testify. Paul wants to testify, having come to his senses since their marriage, but Peter asserts the marital communications privilege. Can Paul testify?
I’m going to go with “yes” because Paul wants to testify, but only to the act of Peter showing him where the body is buried.
We all know that you exist as a narrative device to make me seem more intelligent than I am, so the answer obviously is “You’re right and you’re wrong.” You’re right to the extent that Paul can testify – he’s waived the Spousal Testimony Privilege by agreeing to testify. But you’re wrong in that the testimony is limited, and again it’s because of the public policy underlying the privileges at all.
The Marital Communications Privilege is meant to protect communications between spouses. That’s interpreted, in the majority of jurisdictions, fairly strictly: if the communication, at the time it was made, was not between parties that – at that time – were spouses then it wouldn’t apply. So since Peter’s statements predate the marriage, they aren’t covered by it. So long as Paul is willing to testify – and so long as we’re in a jurisdiction where the testifying spouse holds the privilege – Peter can’t stop him from doing so.
But let’s say that Paul isn’t willing to testify. Can he be compelled to given that all of the actions predate the marriage.
I’m going to say “No” because I know how your mind works.
You’d be 100% correct. The Spousal Testimony Privilege is not time limited to only events that occur during the marriage. It covers acts that occur both before the marriage and during it because the key policy underlying it is maintaining harmony between the spouses, not encouraging open communication during the course of the marriage. The key factor is not the timing of the act, but rather the relationship of the witness to the defendant, i.e. “Are they married at the time the testimony is being sought?”
This also means, by the way…
One of them survives divorce and the other doesn’t, right?
Absolutely. The Marital Communications Privilege is unaffected by the death or divorce of the spouses because the operative time for whether it applies or not is simply “Did the communication occur during the course of the marriage?” If the answer is “Yes” then, subject to the exceptions above – and another one we’ll get to in a minute – either spouse can claim the privilege to avoid or prevent testimony about the communications.
On the other hand, since the purpose of the Spousal Testimony Privilege is marital harmony, it typically does not survive the end of the marriage although it covers things before the marriage as well. The reasoning is the same as why a testifying spouse can choose, in the majority of jurisdictions, to waive the privilege: there’s no need to preserve something that’s already broken.
You said something about another exception.
Actually, two more exceptions, and these exceptions apply to both the Marital Communications Privilege and the Spousal Testimony Privilege.
One is pretty obvious – if the spouses are adverse to each other, either as co-defendants or because they are on opposite sides of a civil matter, these privileges don’t apply. If they did it would frustrate situations where the parties are still married (or the communications take place in the course of the marriage) but support one or both of their cases. Think about custody, divorce, or other family law proceedings – although this isn’t limited to only those cases.
The second is much simpler: if the defendant is charged with a crime and the other spouse was the victim, neither of them can assert the privileges and the testimony can be compelled. That makes sense for the Marital Communications Privilege – we don’t want a defendant to be able to silence their victim – but why would we need it as an exception to the Spousal Testimony Privilege when that privilege would belong, in this case, to the victim?
Well, let me ask you a question in return: Does everyone realize they are in or need to leave an abusive situation? No. No they don’t. And in those cases the victim, while willing to contact law enforcement initially, can convince themselves the defendant didn’t really mean it or, in other situations, be coerced into silence by the defendant. Which is why in those situations a prosecutor will typically have the ability to compel the testimony of the victim regardless of any marital privileges that may exist.
Heavy.
Yeah, it is.
So is that all?
No, I mean, obviously not. There’s an entire body of case law surrounding privileges in general, and statutes regarding the same, and as I said earlier the details of it will vary from jurisdiction to jurisdiction. However, those are the really, really broad strokes of the concept of marital privileges and the two distinct-but-related privileges that actually make them up. If you need anything more specific, well, you need to speak to an attorney licensed to practice in your jurisdiction. Not sit on the website of some guy talking about this shit in broad strokes because he’s bored.
But that’ll do it for this installment. Thanks for reading, again. It’s good to be back and typing on these things again. Until next time, I’m Boozy and you’re not. Have a great day.
