Spousal privileges in the federal law - Legal Digest

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

There is one requirement for the adverse spousal testimony privilege. There has to be a valid marriage between the individuals. The standards for determining the existence of a valid marriage are the same as the marital communications requirement discussed previously. It is also important to note that this privilege, unlike the marital communications privilege, does not survive the termination of the marriage either through death or divorce. (40)

The adverse spousal testimony privilege is limited to courtroom testimony. In United States v. James, (41) the court considered whether or not to allow testimony from a law enforcement officer as to information related by the defendant's wife at the time of the defendant's arrest. The court noted that five other Circuits have considered the issue and decided to allow such testimony. (42) The court noted that the Court in Trammel stated, "It is only the spouse's testimony in the courtroom that is prohibited." (43)

The previous summaries involved issues of spousal privileges raised at the time of trial. There are times, however, when spousal privileges become an issue during the investigative stages of a case.

ISSUES DURING INVESTIGATIVE STAGES

Grand Jury Proceedings

Often subpoenas are issued for witnesses to testify in a grand jury. These subpoenas compel the testimony of the witness. If the witness is a spouse of the target of the grand jury proceedings, the federal district court may be asked to consider whether the privileges of adverse spousal testimony or marital communications apply in the context of grand jury proceedings. (44) In the case of Grand Jury Investigation of Hugle, (45) the U.S. Court of Appeals for the Ninth Circuit ruled that the marital communications privilege is applicable in grand jury proceedings. (46) The court also determined that the defendant spouse has standing to assert the privilege in grand jury proceedings. (47)

The courts have ruled in several cases that the adverse spousal testimony privilege applies in grand jury proceedings. In United States v. Calandra, (48) the Court stated that a grand jury, "may not itself violate a valid privilege, whether established by the Constitution, statutes, or the common law." (49) The application of the adverse spousal testimony privilege in grand jury proceedings has been upheld in several cases. (50)

As the privileges apply, so do the exceptions. If the government can meet its burden to rebut the presumption Of confidential communications, It can compel the testimony of one spouse against another. Furthermore, the government can overcome spousal privileges if the prosecutor promises not to use the information obtained against the other spouse. Courts have ruled that "a spouse asserting the adverse spousal testimony privilege or the marital communications privilege may be compelled to testify if the prosecutor gives an adequate promise that the information will not be used against the other spouse." (51)

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