Spousal privileges in the federal law - Legal Digest

FBI Law Enforcement Bulletin,The, August, 2003 by Robert Kardell

In one of my recent cases, I received a large amount of information from the former spouse of the main subject. The issue quickly arose as to what type of information the spouse could provide to me and for what purposes I could use the information. To determine the answers to these questions, I began to research the issue of spousal priviliges (1) to ensure that the information obtained or evidence gathered would not be suppressed in future court proceedings. The following is a summary of the information I uncovered. This research is based on federal common law; state and local law enforcement should review their applicable laws.

COMMON LAW PRIVILEGES

The original draft of the Federal Rules of Evidence (FRE) by the Judicial Conference Advisory Committee in 1974 included rules that recognized nine separate common law privileges. The individual rules dealing with privileges, however, were dropped in favor of a single rule incorporating all common law rules of privilege. (2) The FRE rule regarding privileges is as follows:

   Articles V. Privileges
   Rule 501. General Rule

   Except as otherwise required
   by the Constitution of the
   United States or provided by
   Act of Congress or in rules
   prescribed by the Supreme
   Court pursuant to statutory
   authority, the privilege of a
   witness, person, government,
   state, or political subdivision
   thereof 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. However, in
   civil actions and proceedings,
   with respect to an element of a
   claim or defense as to which
   state law supplies the rule of
   decision, the privilege of a
   witness, person, government,
   state, or political subdivision
   thereof shall be determined in
   accordance with state law.

The passage of this rule has created a debate as to what authority the courts have to modify the privilege rules. One view is that Congress intended to freeze the common law privileges as they were recognized at the time, restricting changes to those made by Congress. The prevailing view, however, has been that Congress ceded to the courts the authority to determine the scope and nature of privileges and the freedom to develop and modify the privileges as needed through common law. (3)

The courts have taken this authority and modified the spousal privilege rules over the years through common law. As the privileges are rooted in common law, a review of the spousal privileges in common law follows. (4)

History

The common law has recognized spousal privileges since medieval times. (5) The privileges have evolved and taken different forms over the years. The current form of spousal privileges grew out of three distinct privileges: 1) incompetency, 2) anti-marital facts, and 3) marital confidentiality. (6)

The number of privileges changed when the Court in Funk v. United States (7) overturned prior court decisions and ruled that the spouse of the defendant voluntarily could testify on the defendant's behalf. Prior to this decision, courts did not allow the spouse of the defendant to testify, even if the spouse volunteered to testify on behalf of the defendant. This absolute rule against spousal testimony was based on incompetency. (8) Funk effectively abolished incompetency as one of the spousal privileges.

The two remaining spousal privileges that continue to be recognized are anti-marital facts, now commonly known as adverse spousal testimony, and marital confidentiality, now referred to as marital communications. Spousal privileges are a type of evidentiary privilege. They are rooted in common law and recognized by the FRE. Other types of evidentiary privileges are attorney-client, doctor-patient, and priest-penitent. Because these privileges are rooted in common law and not in the Constitution, courts have construed them very narrowly. In Trammel, the Court stated that "[t]estimonial exclusionary rules and privileges contravene the fundamental principle that "the public ... has a right to every man's evidence." As such, they must be strictly construed and accepted "only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth." (9) Judges, then, have the ability and duty to weigh the necessity of the privilege against other factors in the case. The narrow interpretation of the privileges, and ability of the judge to force disclosure of otherwise privileged information, indicate that the following rules are guidelines to be used by the court in their decision-making process.

Marital Communications Privilege

The privilege of marital communications has evolved from the same basic notions that underlie the privilege of adverse spousal testimony. This privilege is related more directly to other privileges such as attorney-client, priest-penitent, and doctor-patient, in that the testimony of the witness is not barred, but rather, communications that were intended to be private are considered privileged. However, the marital communications privilege, unlike the spousal testimonial privilege, survives death and divorce. (10) The courts have ruled that private communications made during marriage are presumed to be confidential. (11) This is a rebuttable presumption; however, the burden of which rests with the government. (12)