Teachers' Manual to Green, Nesson & Murray, Problems, Cases and Materials on Evidence, 3rd Edition.

CHAPTER VII: PRIVILEGES
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E. The Husband-Wife Privilege (734)

Proposed FRE 505 would have created a spousal testimonial exclusion or disqualification, not a confidential communications privilege. The Advisory Committee did not opt for a communications privilege because the traditional justifications for a marital privilege (the prevention of marital dissension and the repugnancy of forcing one spouse to condemn or be condemned by the other) "bear no relevancy to marital communications." A marital communications privilege does not materially foster marital communications because many spouses are unaware of its existence and few spouses would hesitate to communicate because of its absence. Any damage to a marriage relationship caused by one spouse testifying against the other would seem to flow from one doing damage to the other, not from one disclosing communications of the other.

The decision by the Advisory Committee rejecting a communications privilege opposed the judicial and legislative tide in the field. Most states were limiting or totally abolishing spousal testimonial exclusion privileges while bolstering the confidential communications privilege. See Reutlinger, Privacy and Prerogatives A Critical Examination of the Proposed Federal Rules of Evidence as They Affect Marital Privilege Policy. 61 CAL. L. REV.. 1357, 1382 (1973). Reutlinger states that of the two distinct kinds of marital privilege, most scholars recognize that only the confidential communications privilege has sufficient justification for its continuance. He attacks the Advisory Committee's reasoning, arguing that the bold assertion of the Committee that there is no relation between the justification and the privilege is simply "not true." What is at stake, he argues, is not only the protection of marital harmony but also the preservation of marital privacy, recognized as a constitutional interest in Griswold v. Connecticut, 381 U.S. 479 (1965). Lilly stresses the judicial problem in forcing disclosure of marital communications: "The invasion of private marital communications is an indelicate and distasteful undertaking; it should not be sanctioned unless society's interest in disclosure is compelling." Lilly, The Law of Evidence (West, 1978), 321.

The Committee also decided to place the testimonial exclusion in the hands of the accused spouse rather than the testifying spouse, consistent with the federal common law approach since Hawkins (overruled in Trammel (735)). The Advisory Committee asserted that the privilege of an accused in a criminal case to prevent adverse spousal testimony was "the one aspect of marital privilege the continuation of which is justified." The argument against this is that if one spouse is willing voluntarily to testify against the other, then there is not much left of the marriage worth protecting. The counter argument in favor of giving a power of disqualification to the defendant is that if the testifying spouse has the choice rather than the defendant, then the state may offer very strong inducements to persuade the testifying spouse to testify, e.g.,"You go free if you testify against him", and such inducements are themselves likely to cause dissension between the marriage partners. Placing the power of disqualification in the defendant's hands eliminates the state's incentive to drive wedges between marriage partners.

Congress criticized Rule 505 as a "conscious decision of the Court to narrow its [the husband-wife privilege] scope from that recognized under present federal decisions." (Senate Report No. 93-1277.) Much of the Congressional criticism was aimed at the extreme disparity between many state's privilege laws and the proposed rule. The House Judiciary Committee feared that the proposed rule would result in forum shopping in diversity cases depending on which law was better for the litigant. (House Report No 93-650.) As a result, FRE 505 was rejected by the Congress, and the current FRE 501 adopted.



Problem - The Eternal Triangle (734)

Answer and Analysis:

Under Proposed FRE 505 H could not testify, but under Trammel could testify. See related discussions above and below.



United States v. Trammel, 445 U.S. 40 (1980) (735)

Trammel illustrates the problem of government incentives dividing spouses when the testimonial privilege is in the witness spouse. Mrs. Trammel was called as a government witness under a grant of immunity from prosecution. She explained that her cooperation with the government was based on assurances that she would be given lenient treatment, apparently that she would not be prosecuted for her part in the conspiracy. Although she and Trammel were still married, divorce was contemplated. Her decision to testify against her husband might have had something to do with the break-up of the marriage. The Supreme Court's statement that her testimony was voluntary and its citation to Bordenkircher v. Haves emphasizes just how strong the government's divisive incentives can be. Bordenkircher is the case in which the Supreme Court allowed that a plea of guilty for a minor offense would have been voluntary even though made under the threat that if the defendant did not plead guilty he would be prosecuted as an habitual offender and get life.



Problem - Home, Sweet Home (742)

Answer and Analysis:

(1) Under proposed FRE 505 Mickie could testify. The fact that Leo is charged with a crime against Mickie's child would bring the case under proposed FRE 505(c)(1), and the fact that the episode occurred before the marriage would bring the case under proposed FRE 505(c)(2).

(2) Under Trammel, if Mickie wanted to testify she could do so notwithstanding Leo's objection. But could she refuse? She could not refuse on the basis of any communications privilege because her testimony would not be about communications. The question then is whether she could refuse to testify about an episode that occurred before the marriage. The general rule, reflected in the exception to Proposed FRE 505, is that the marital privilege (no matter what its form) does not extend to testimony about premarital events. The reason for this is to prevent persons from suppressing evidence by marrying a witness.



Problem - Private Communications (742)

The point:

Under a communications privilege, it is sometimes difficult to tell whether something that passes between husband and wife is a communication.

Answer and Analysis:

This is a Chadbourn classic.

(1) H cannot testify to D's statement. It is a private communication between spouses, thus covered by the communications privilege.

(2) H cannot testify to D's showing H the body. That action was intended as a communication.

(3) Courts would split on this one. D's action was not intended as a communication, but was an action by one spouse in the presence of the other where it could reasonably be inferred that the actor spouse did not want her action revealed and was relying on the privacy of the relationship. See e.g., People v. Sullivan, 249 N.Y.S.2d 589 (1964).

(4) H could testify. In this case he observed D's action without D knowing it. No communication was intended and D did not rely on any privacy in the relationship. See People v. Sullivan, supra.



Problem - The Set-Up (743)

The point:

This problem brings the subject of privilege full circle back to the considerations involved in In re Farber. There is an inevitable conflict between privilege and the right of confrontation.

Answer and Analysis:

The testimony is about a communication between spouses that W wants kept confidential. The privilege, however, will deny D the ability to defend himself, thus creating a conflict between the privilege and the constitutional right to defend. The conflict here is clearer than in Farber. Moreover, the content of the testimony indicates that W is apparently using the privilege to protect her paramour rather than her husband. The testimony should be admissible.



Problem - Big Brother Is Watching You (743)

Answer and Analysis:

This problem is designed to raise the question of privileges within the family beyond the husband-wife relationship. In many countries members of a relatively broad extended family all have the right to refuse to testify against each other. In some cases the disqualification is at the option of the party family member, in others at the option of the witness. In some states children have statutory privileges not to be required to testify against their parents. However a parent child privilege is the exception rather than the rule.

If one considers such a privilege, how broad should it be? Should it cover all family members within a specified blood relationship? How about adopted family members? Should there be a requirement of pre-existing close relationship? How about emancipated or even estranged family members? Should a parent-child privilege be a disqualification from testifying at all, or a privilege to refuse to answer questions about confidential communications within the privacy of the family? Is there a difference between furnishing information to a grand jury and testifying against a person in open court? What is the relationship between the family privilege and other privileges such as the privilege against self-incrimination?


Three Juveniles v. Commonwealth, 390 Mass. 357, 455 N.E.2d 1203 (1983)(744)

In this case the Massachusetts Supreme Judicial Court considers and rejects a possible parent-child privilege. Note that the "privilege" at issue was a complete refusal to testify, not a privilege for confidential communications. The Massachusetts court seems inclined against such a privilege as well, but does not rule on it in Three Juveniles. This is a good case for discussion of the policy considerations behind family privileges or privileges in general.

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