Page 6 - Marital Privileges

The first was that the goal intended to be served by the privi- 25 Federal Practice and Procedure, Evid., § 5594, Exceptions—
lege, i.e., preventing either spouse from committing the “un- Crime or Fraud (1st ed., 2018 update).
forgivable act” of testifying against the other in a criminal case, There is an exception to both forms of the marital privilege
did not justify assuring a criminal that he or she could enlist for communications demonstrating that one spouse committed
the aid of a spouse in a criminal enterprise without fear that a crime against the other or against their child. The exception
by recruiting an accomplice the criminal was creating another applies similarly in both instances. United States v. Allery, 526
potential witness. . . . The second reason was that the rehabili- F.2d 1362, 1367 (8th Cir. 1975).
tative effect of a marriage, which in part justifies the privilege, Although Trammel held clearly that a defendant spouse cannot
is diminished when both spouses are participants in the crime. prevent the witness spouse from testifying about crimes that the
defendant committed, courts have reinforced this rule by rec-
United States v. Clark, 712 F.2d 299, 301 (7th Cir. 1983) (quoting ognizing, for example, an exception to the confidential marital
United States v. Van Drunen, 501 F.2d at 1397). But see Appeal of communications privilege when the victim of a spouse’s offense
Malfitano, 633 F.2d 276, 278–89 (3d Cir. 1980) (“There is nothing is a child within the household. See, e.g., United States v. Bahe,
in the record or otherwise to indicate that marriages with crimi- 128 F.3d 1440, 1446 (10th Cir. 1997); United States v. White, 974
nal overtones disintegrate and dissolve. The spouses in fact may F.2d 1135, 1137–38 (9th Cir. 1992).
be very happy. . . . [And] the marriage may well serve as a restrain-
ing influence on couples against future antisocial acts and may
tend to help future integration of the spouses back into society.”) While confusing and
The joint-participants exception applies to both marital privi-
its cover-up. The confidential marital communications privilege contradictory, the marital
leges and requires that both spouses be involved in a crime or

will continue to apply when a spouse is no more than aware of
her spouse’s criminal activity but will fall away if that spouse as- privileges are here to stay,
sists the other spouse in the criminal activity or helps to cover it
up afterwards. See, e.g., United States v. Neal, 743 F.2d 1441, 1446 at least in federal law.
(10th Cir. 1984) (marital communications privilege would apply
“to prevent the testimony of one spouse against the other if the
sole knowledge and information and/or participation involves a
conversation wherein the spouse who committed the crime dis- In addition, courts have gone further than Trammel and forced
closes that fact to the other spouse” but not if the other spouse a spouse who is a victim of marital abuse to testify against her
later discusses covering up evidence, and so participates “as an abuser, recognizing that the victim spouse may be reluctant to
accessory after the fact”). testify and, instead, may be likely to invoke a marital privilege
In addition to the joint-participants exception that applies to in a manner that goes against societal interests. Thus, despite
both marital privileges—and which requires that both spouses Trammel’s confirmation that “the witness may [not] be . . . com-
engage in a crime or its cover-up—there is an additional “crime pelled to testify,” 445 U.S. at 53, some courts have adopted a so-
or fraud exception” to the confidential marital communications called “necessity exception,” under which a court may compel the
privilege, and it is analogous to the crime or fraud exception to victim to testify against an abusive spouse. See, e.g., United States
the attorney-client privilege. The exception requires only that v. Seminole, 865 F.3d 1150, 1154 (9th Cir. 2017) (the defendant “has
one spouse be aware that the communication in question was not identified any cases that hold that Trammel somehow elimi-
made for an iniquitous purpose. But the case law is muddled nated a court’s ability to compel a witness to testify against her
in this area, with courts often describing both the confidential spouse when she is the victim of the spouse’s crime”).
marital communications privilege and the crime-fraud exception While confusing and contradictory, the marital privileges are
interchangeably, as is vividly described by Wright and Miller: here to stay, at least in federal law. Bear them in mind when han-
dling a civil or criminal case that involves spouses. Understand
The two exceptions are so hopelessly confused in the literature the differences between the confidential marital communications
and the caselaw that it is doubtful that federal courts will ever privilege and the adverse spousal testimony privilege; and be sure
get them straight[.] Nevertheless, in connection with the crime to research closely the law of the particular federal jurisdiction
or fraud exception, a court must determine whether each in- in which the case arises. q
dividual communication claimed to fall within the exception
had a purpose of aiding in a criminal endeavor.

Published in Litigation, Volume 45, Number 4, Summer 2019. © 2019 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not 6
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