After I read the opinion, I revised portions of my discussion of the privileges involved. My discussion is more wordy, but covers more ground. I recommend that readers read the opinion first and then, if still interested, readers might read the following which is the revised text without the footnotes (I do not indent the entire cut and paste, since all of it is from my books):
G. Spousal Privileges.
1. General Justification for Spousal Privileges.
The general societal value supported by the spousal privileges is the integrity of the marriage unit. The justification for the particular subset of marital privileges are usually more fine-tuned than that, focusing on the nature of the testimony, its potential adverse effect on the marriage unit or marriage in general, and harm to society that justifies the privilege to deny access to information in dispensing justice. For present purposes, readers should just recall that it is the marital unit and the societal value of fostering the marital unit that justifies these privileges.
2. Spousal Communications Privilege.
The spousal or marital confidential communications privilege covers “information privately disclosed between husband and wife in the confidence of the marital relationship" Trammel v. United States, 445 U.S. 40, 51 (1980). The societal benefit is to ensure that spouses communicate confidentially without fear of exposure in court. Either spouse “may invoke the privilege to avoid testifying or to prevent the other from testifying about the privileged communication.” Either spouse may assert this privilege as to both that spouse’s communications to the other spouse and the other spouse’s communications to that spouse.
What are protected communications? We all know that people – including spouses specifically – communicated by words and actions. So, is everything one spouse learns about the other through words or actions communications? The answer is that general verbal communications are what is protected rather than actions. The following example is in a recent case [the Brock case linked above]:
[T]he protected subject matter includes only what one spouse communicates to the other, not what one spouse learns about the other in other ways, such as by observing the other's actions. In Mr. Brock's trial, the marital communications privilege could have applied to Mrs. Brock's testimony that he told her to take two guns from their home and put them in a car. It would not have applied to her testimony about Mr. Brock handling the guns or shooting possums.Not all communications between spouses, even if intended to be confidential are covered; there is an exception for communications in furtherance of joint participation in a crime.
The privilege is waivable only by the spouse making the communication, and like the attorney-client privilege, the presence of some person other than the married parties who is capable of understanding the communications will waive the privilege. It is commonly stated that the waiver must be knowing and voluntary, but this means only that
the holder must realize that the once-confidential communication is being revealed. But if the holder intends to disclose the privileged material, even without realizing the impact of the disclosure on the privilege, then there is a waiver.The privilege survives the marriage.
3. Spousal Immunity (aka Adverse Testimony Privilege).
The spousal immunity privilege (sometimes called the adverse testimony privilege) protects a witness spouse from giving compelled testimony against the other spouse in a criminal proceeding. This is a privilege that must be asserted by the witness spouse; the defendant spouse is not permitted to assert it as a bar to the witness spouse’s testimony if the witness spouse is willing to testify. The notion is that, if the witness spouse is willing to testify against the defendant or target spouse, the marriage is already in disarray and no societal benefit is furthered by permitting the defendant or target spouse to prevent the testimony of the witness spouse. The defendant spouse may, of course, assert the marital communications privilege to prevent the witness spouse from testifying about confidential communications during the marriage.
One important context in which the assertion of spousal immunity privilege created landmark law is in Crawford v. United States, 541 U.S. 36 (2003). In that case, the wife had given a taped statement to the police shortly after an assault on a third party. In the interview in which she made the statement, both the husband the wife had been given standard Miranda warnings but neither asserted privileges of any sort, much less that spousal immunity privilege. At the husband’s criminal trial, the husband invoked the spousal immunity privilege to prevent the wife from being compelled to testify. (Note that, under Washington state law, the husband could prevent the testimony, contrary to the rule in federal courts noted above that only the witness spouse may invoke this privilege.) The state then successfully moved, over the husband’s objection, to enter the statement in evidence. The Washington Supreme Court sustained the use of the statement based on a hearsay analysis that then was materially coterminous with the right of confrontation -- i.e., the statement had indicia, referred to as guarantees of trustworthiness, of reliability so as to clear a hearsay / Confrontation Clause hurdle. The issue upon which the Supreme Court digressed was whether the use of the statement violated the husband’s Sixth Amendment right to be “confronted with the witnesses against him.” Specifically, the Court reimagined and rewrote the Confrontation Clause analysis. The right to confrontation where successfully asserted to prevent an out of court statement from coming in operates like a privilege – i.e., it results in denying the factfinder the right to otherwise available evidence in the truth finding process. The Confrontation Clause is nevertheless not normally perceived as a privilege, so I won’t further digress here on the Confrontation Clause as a privilege. (Bottom line, the Court held that the use of the statement violated the Confrontation Clause.)
4. Examples.
To use a stark nontax example, assume the unlikely case that (i) a wife observes her husband shoot and kill a person with a gun and (i) later, after all the immediate events of the shooting are in the past, the husband tells her that he intended to kill the person when he shot him. If the wife were called to testify against her husband in a criminal proceeding, the wife could assert the spousal immunity privilege to avoid her compelled testimony but the husband could not assert the spousal immunity privilege if she were otherwise willing to testify. However, even if she were otherwise willing to testify, the husband could prevent her testimony about the subsequent communications between them.
To use a closer to home but analogous tax example, assume that (i) after signing a joint return, the wife gave the return to her husband, and the wife observed the husband writing his signature on the return, depositing the signed return in an envelope and dropping the envelope with the return in a mail box; and (ii) the husband later admitted to the wife that he had fraudulently omitted some income from the return. In a later criminal trial, the IRS wants to have the wife testify to these matters. The wife could assert the spousal immunity privilege to avoid her compelled testimony, but could testify if she chose to. The husband could prevent her from testifying as to the confidential communications about the his fraudulent intent in omitting income from the return.
I have used the combination of these privileges in a criminal investigation where I represented the husband who was the sole target of the investigation and also represented the wife who the IRS CI agent summonsed to appear solely as a witness in the investigation of her husband. As my opening salvo monologue to the CI agents, I pronounced that (i) the husband and the wife each asserted the spousal communications privilege as to their respective communications to each other and (ii) the wife asserted the spousal immunity privilege to being forced to testify in a proceeding against her husband’s criminal interests. I even instructed the witness not to answer any questions. Indeed, I did not even let her testify as to her name or other such nonincriminating information because the spousal immunity privilege is a blanket privilege. I “testified” to the fact that the person in the room with me and the CI Agents was the wife who had been summonsed to appear, but I did not let her verbally testify to that effect. The CI agents present were not pleased, but could do nothing about it.
To put this anecdotal experience in perspective, in my experience, it is rare indeed that a spouse will be called in a criminal investigation of the other spouse where the parties are still married. In a tax setting, it may not at all be clear that the purported witness is or could not be at criminal jeopardy and thus have the additional privilege of the Fifth Amendment that would likely be asserted. But, even where it may be clear that a spouse might not have a Fifth Amendment privilege, the IRS in investigation usually does not call an existing spouse.
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