Spousal privileges in the federal law.

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)

For the marital communications privilege to apply, there are three prerequisites. First, the communication must have been in words or acts intended to be communicative (13) or intended to convey a message. (14) "Though this privilege has been expanded to encompass more than mere conversations and writings, invocation of the privilege requires the presence of at least a gesture that is communicative or intended by one spouse to convey a message to another." (15) Observations of the witness spouse, generally, are not communications and therefore cannot be barred. (16)

Second, the communication must be made during a valid marriage. (17) Although this prerequisite would seem to be self-explanatory, the issue of what constitutes a valid marriage has been argued quite extensively. If a couple is separated, the court will have to determine whether the separation is permanent or only temporary. This prerequisite is not met if the communication takes place while the couple is permanently separated. (18) There are a number of other factors that courts have considered in determining the validity of the marriage. These factors include the filing for a divorce, the conduct of the parties, the stability of the marriage, or any other statements or actions by the parties that may show their intent. (19)

Third, the communication has to have been intended to be private. If the communication was made in the presence of third parties (20) or with the intention of being communicated to a third party, (21) then the communication is not privileged. The presence of a third party may include a child of the marriage if the child is old enough to understand. (22) The courts have been reluctant to extend the communications privilege to family members other than the husband and wife.

There are two exceptions to the marital communications privilege. First, the privilege does not apply in cases of crimes against the spouse or children. (23) In such cases, courts have held that the societal interests far outweigh the interest of the marriage and therefore should not apply. In United States v. Martinez, (24) the court stated "[c]hildren, especially those of tender years who cannot defend themselves or complain, are vulnerable to abuse. Society has a stronger interest in protecting such children than in preserving marital autonomy and privacy." (25)

Second, the privilege does not apply in cases of spouses conspiring to commit a crime, communicating about past criminal acts, or communicating about future criminal activity. (26) However, there is a split among the Circuits with regard to this issue. The Sixth and the Eighth Circuits have ruled that the conspiracy exception is limited to "communications regarding 'patently illegal activity.'" (27)

The marital communications privilege can be waived. Courts also have held that disclosure, even if inadvertent or unintended, can serve to waive the privilege. If no objections to the disclosure of the information are expressed, the court can find that the privilege has been effectively waived. In United States v. Brown, (28) the parties agreed to hear the testimony of the spouse without the jury at the suggestion of the judge to determine whether the marital communications privilege applied. The testimony of the spouse was offered by the defendant to prove the statements of the defendant were marital communications. But, the court held, by allowing the testimony of the spouse, the defendant had, instead, waived the privilege. In United States v. Lavin, (29) the court stated "the holder must zealously protect the privileged materials, taking all reasonable steps to prevent their disclosure." (30)

Adverse Spousal Testimony

Until Funk, the rules regarding spousal privileges had remained unchanged for hundreds of years. After the Court in Funk abolished incompetency as a spousal privilege, scholars and other legal institutions began to question the necessity of the adverse spousal testimony privilege. In Hawkins v. United States, (31) the Supreme Court was asked to reconsider the adverse spousal testimony privilege. After much debate, the Court held that one spouse couldn't be compelled to testify against the other. The Court ruled that both the defendant and the witness spouse held the privilege, thereby requiring the consent of both parties before one spouse could testify against the other. The Court, in Hawkins, left the privilege unchanged and reiterated the foundation and reasoning that had justified the privilege for so many years.

The ruling by the Court in Hawkins endured until the Court in Trammel revisited the adverse spousal testimony privilege issue. In Trammel, the Supreme Court was asked to reconsider whether a defendant can invoke the privilege to exclude voluntary testimony of a spouse. (32) The Court again reviewed the history of the privilege and the changes that it had undergone throughout the years. The Court noted that a number of states had changed their rules or laws regarding adverse spousal testimony since Funk. At the time of the decision in Trammel, 26 states either had abolished the privilege in criminal cases or vested the privilege in the witness spouse. (33)

The decision in Hawkins also had received substantial criticism from various legal institutions. In Trammel, the Court took notice of an expanding list of exceptions to the adverse spousal testimony privilege. Over the years, the courts had recognized exceptions for crimes committed by one spouse against another, (34) crimes against spouse's property, (35) and crimes against children. (36) The exceptions to the privilege had expanded as the criticism of the rule increased.

The Court also took notice that no other privilege, attorney-client, priest-penitent, or doctor-patient, goes so far as to exclude all adverse testimony of potential witnesses. The Court opined that this difference was based on anachronistic notions of women not being considered as separate legal entities. (37)

The Court also considered the argument that a change in the rules would force government between a husband and a wife. The Court discussed that one of the original arguments for the privilege is the idea that forcing one spouse to testify against the other would disrupt the marital harmony. In Trammel, the Court reasoned, however, that if one spouse is willing to testify against the other, "there is probably little in the way of marital harmony for the privilege to preserve." (38)

The Court in Trammel concluded that "the existing rule should be modified so that the witnesss-spouse alone has a privilege to refuse to testify adversely; the witness may be neither compelled to testify nor foreclosed from testifying. This modification--vesting the privilege in the witness-spouse-furthers the important public interest in marital harmony without unduly burdening legitimate law enforcement needs." (39)

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)

Search Warrants, Affidavits, or Other Court Orders

Another common practice among federal investigators is the use of search warrants and other court orders. The applications for search warrants or other court orders, such as telephone intercepts, are normally supported by affidavits of the investigating agent or prosecutor. If privileged communications become part of an affidavit, what effect, if any, will this have on the evidence collected as a result of this court order?

The court in United States v. Squillacote considered just such a case. The appellant in Squillacote argued that evidence gained from a warrant based on privileged information should be suppressed. The privilege at issue in Squillacote was the therapist-patient privilege, but the court noted that privileges such as therapist-patient and marital communications are testimonial or evidentiary and not grounded in the Constitution. The court in Squillacote ruled that privileges that are not rooted in the Constitution are not afforded the 'tainted fruits' analysis. Therefore, suppression of evidence is not the proper remedy for evidence collected from the execution of a warrant based on privileged information. The court in Squillacote concluded "we do not believe that suppression of any evidence derived from the privileged conversations would be proper in this case, given that the privilege is a testimonial or evidentiary one, and not constitutionally based." (52)

Limits on Investigations

What limitations do the marital privileges place on the investigator? The adverse spousal testimony privilege does not apply in cases where there is no courtroom testimony. Thus, for investigators, evidence and leads obtained through interviewing or otherwise asking questions of a spouse will not run afoul adverse spousal testimony privilege. Interviews of a widow or an ex-spouse will not violate this privilege because, as pointed out above, the privilege does not survive death or divorce.

The marital communications privilege has undergone a similar analysis with regard to introducing evidence derived from privileged information. In United States v. Cleveland, (53) the defendant sought to suppress all evidence and leads produced from interviews of his wife. The court denied the request and in its opinion stated, "we find no authority for the broad exclusionary rule advocated by defendant." (54) The reluctance of courts to exclude evidence obtained from disclosure of marital communications is based on the fact that the privilege is derived from common law evidentiary privileges and is not rooted in the Constitution. Only constitutional rights are afforded "tainted fruits" analysis, as discussed above. (55)

The Fifth Circuit has denied the admissibility of privileged statements by a third party on two occasions, however. In Ivey v. United States, (56) the court stated that allowing an out-of-court statement would circumvent the reasons for the privilege. In reversing the District Court's decision to allow the testimony of the defendant's wife through third parties, the court stated, "[s]he might as well be permitted to testify against her husband in open court as to permit the introduction of a statement she had made against him out of court." (57) And in United States v. Williams, (58) the Fifth Circuit reiterated it ruling in Ivey and held the introduction of a privileged communication by a third party, in these cases law enforcement officers, is reversible error.

It is important to keep the rules and limitations of spousal privileges in mind when considering the consequences of using privileged information. If a communication meets all of the requirements of a privileged communication, then there are four things that an investigator should consider. First, if the information falls within one of the exceptions to the privilege, no further analysis may be necessary. For instance, if it is determined that the husband and wife are co-conspirators in a crime, the rules of marital communications privilege will no apply and therefore neither can prevent the information from being introduced in court or being testified to by third parties.

Second, even the Fifth Circuit has not gone so far as to exclude all evidence derived from leads and other information gleaned from privileged communications. As stated earlier, exclusion of evidence is not the proper remedy for evidence derived from privileged communication. Third, the information derived from privileged communications still can be used in affidavits and other court orders. And, fourth the communications that are privileged have to be aggressively protected by the spouse who is seeking to keep them private. If privileged information is disclosed and no attempt is made to protect it, the courts may consider the privilege waived.

CONCLUSION

Marital privileges have been part of common law for hundreds of years. These privileges have been incorporated into the FRE through Rule 501. Congress has ceded to the federal courts the ability to review and modify the privileges as necessary. Congress did this by leaving the privileges rooted in common law and not codifying them in the FRE. Currently there are two marital privileges, adverse spousal testimony and marital communications. Since Hawkins, the spousal privilege rules have been narrowed and limited by the courts. The privileges are always narrowly construed because they are an impediment to the truth-finding process.

The adverse spousal testimony privilege is vested in the witness spouse alone. The defendant cannot bar a spouse from testifying. The privilege is limited to married individuals and thus is terminated by divorce or death. The marital communications privilege has three prerequisites. First, that there was an intent to communicate message. Second, there was a valid marriage. Third, the communication was intended to be confidential. The spousal privilege rules apply in grand jury testimony as they do in trial.

The privileges can be overcome with a promise from the prosecutor not to use the information garnered against the other spouse. The spousal privileges are evidentiary privileges and are not constitutionally based. Because they are not constitutionally based, information gathered from the use of such information is not subject to suppression by the courts.

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.

Endnotes

(1) There are two spousal privileges recognized in common law, the adverse spousal testimony and the marital communications privileges. These collectively will be referred to as spousal privileges.

(2) See PL 93-595 (HR 5463), January 2, 1975.

(3) Trammel v. United States, 445 U.S. 40, 47, 100 S. Ct. 906,911 (1980).

(4) FRE Rule 501 refers to both federal common law in criminal cases and state law in civil cases. As this summary was prepared to aid in the investigation of a federal criminal case, the review of common law will be limited to federal common law.

(5) Supra note 3 at 43 and 909.

(6) United States v. Redstone, 488 F.2d 300, 304 (8th Cir. 1973).

(7) 290 U.S. 371, 54 S. Ct. 212 (1933).

(8) Incompetency, under common law in cases of spousal privilege, means disqualification because of a spouse's vested interest in the outcome of the trial.

(9) Supra note 3 at 51 and 912, quoting United States v. Bryan, 339 U.S. 323, 331, 70 S. Ct. 724, 730 (1950) and Elkins v. United States, 364 U.S. 206, 234, 80 S. Ct. 1437, 1454 (1960).

(10) Pereira v. United States, 347 U.S. 1, 6, 74 S. Ct. 358, 361 (1954).

(11) Wolfe v. United States, 291 U.S. 7, 14, 54 S. Ct. 279, 280 (1934).

(12) Haddad v. Lockheed Cal. Corp., 720 F.2d 1454, 1456 (9th Cir. 1983).

(13) Supra note 9 at 6 and 361 (1954).

(14) See United States v. Lustig, 555 F.2d 737 (9th Cir. 1977); see also United States v. Espino, 317 F.3d 788 (8th Cir. 2003).

(15) Supra note 13 (Espino) at 795.

(16) United States v. Leftkowitz, 618 F.2d 1313, 1318 (9th Cir. 1980).

(17) United States v. Marashi, 913 F.2d 724, 729 (9th Cir. 1990).

(18) United States v. Roberson, 859 F.2d 1376, 1379 (9th Cir. 1988).

(19) Id. at 1381.

(20) Supra note 15 at 1318.

(21) Supra note 10 at 280.

(22) Supra note 10 at 16 and 281.

(23) United States v. Bahe, 128 F.3d 1440, 1446 (1Oth Cir. 1997), cert. denied, 523 U.S. 1033, 118 S. Ct. 1327 (1998).

(24) United States v. Martinez, 44 F.Supp.2d 835,836 (W.D. Tex. 1999).

(25) Id. at 837.

(26) Supra note 16 at 730. But see United States v. Westmoreland, 312 F.3d 302 (7th Cir. 2002) (the joint crime exception to the marital communications provilege does not apply to communications before the spouse becomes a joint participant).

(27) United States v. Evans, 966 F.2d 398,401 (8th Cir. 1992) cert. denied 506 U.S. 988, 113 S. Ct. 502 (1992) quoting United States v. Sims, 755 F.2d 1239, 1243 (6th Cir. 1985) cert. denied 473 U.S. 907, 105 S. Ct. 3533 (1985).

(28) 634 F.2d 819 (5th Cir. 1981).

(29) 111 F.3d 921,324 U.S.App.D.C. 162 (1997).

(30) Id. at 929 and 170.

(31) 358 U.S. 74, 79 S. Ct. 136 (1958).

(32) Supra note 3 at 41 and 908.

(33) Supra note 3 at 48 and 911, endnote 9.

(34) Wyatt v. United States, 362 U.S. 525, 527, 80 S. Ct. 901,904 (1960).

(35) Herman v. United States, 220 F.2d 219, 226 (CA4 1955).

(36) See generally United States v. Allery, 526 F.2d 1362 (CA8 1975).

(37) Supra note 3 at 52 and 913.

(38) Supra note at 52 and 913.

(39) Supra note at 53 and 914.

(40) United States v. Bolzer, 556 F.2d 948, at 951 (9th Cir. 1977).

(41) 128 F.Supp.2d 291 (United States District Court, D. Maryland, Southern Division, 2001)

(42) United States v. Archer, 733 F.2d 354 (5th Cir. 1984) (court limited adverse spousal testimony to in court testimony); United States v. Chapman, 866 F.2d 1326 (11th Cir. 1989) (out-of-court statements cannot be excluded by the adverse spousal testimony privilege); United States v. Mackiewicz, 401 F.2d 219 (2nd Cir. 1968), cert. denied, 393 U.S. 923, 89 S. Ct. 253, (1968) (spouse's out-of-court statements can be testified to by third party); United States v. Doughty, 460 F.2d 1360 (7th Cir. 1972) (estate tax return of spouse was admissible because spouse did not testify against defendant); United States v. Cleveland, 477 F.2d 310 (7th Cir. 1973) (defendant sought to suppress any statements or investigative leads procured from his wife by a government agent but court held that statements and leads are admissible); United States v. Tsinnijinnie, 601 F.2d 1035 (9th Cir. 1979) cert. denied, 445 U.S. 966, 100 S. Ct. 1657, (1980) (court admitted excited utterance of spouse); United States v. Lefkowitz, 618 F.2d 1313 (9th Cir. 1980) (court allowed information supplied by spouse for use in search warrant).

(43) Supra note 3 at 53 and 914, supra note 9.

(44) See generally FRE 1101 (d)(2).

(45) 754 F.2d 863 (9th Cir. 1985).

(46) Id. at 864.

(47) Id. at 864.

(48) 414 U.S. 338, 94 S. Ct. 613 (1974).

(49) Id. at 346, at 619.

(50) Appeal of Witness Malfitano, 633 F.2d 276 (3rd Cir. 1980), and In re Gary Snoonian, 502 F.2d 110 (1st Cir. 1974).

(51) United States v. Squillacote, 221 F.3d 542, 559 (4th Cir. 2000).

(52) Id. at 560.

(53) Supra note 41 (Cleveland).

(54) A note of caution should be added here, however. The closer a privilege begins to resemble constitutional rights, taint analyisis may be applied. See United States v. Danielson, 325 F.3d 1054 (9th Cir. 2003) (infringing on the attorney-client privilege can invoke Sixth Amendment taint analysis by the court).

(55) Id. at 313.

(56) 344 F.2d 770 (5th Cir. 1965).

(57) Id. at 772.

(58) 447 F.2d 894 (5th Cir. 1971).