Spousal privilege. Marital conversation disqualification. Marital confidentiality. Spousal immunity. Folks use this mishmash of legal terms interchangeably and wrongly. Based on movies and other popular culture, people have a vague notion about what spouses can or cannot say in court about each other.
This post reviews the spousal disqualification (marital conversation) privilege. It explores how it differs from the spousal testimonial privilege. The post looks at how to assert these privileges and if they are waivable. Additionally, the post examines exceptions to the rules.
The Massachusetts law concerning witness competency, G.L. c. 233, §20, prohibits spouses from testifying about private conversations with each other occurring during their marriage. The statute, adopts almost verbatim the Massachusetts Guide to Evidence, Art. V, §504, which applies to civil and criminal cases. The privilege is not waivable and does not cease when the marriage does. The testimonial ban holds, irrespective of whether what the spouse prospectively would speak to favors or harms the other spouse.
The spousal testimonial disqualification of private conversations does not apply to communications made before the couple marries. The spousal disqualification only applies to conversations, not written communications. A spouse cannot testify about the substance of any private conversation with the other spouse under the evidentiary rule. However, acknowledging that such a conversation occurs and provokes the spouse to respond is permissible. A third party who overhears a private marital conversation may testify about its substance.
EXCEPTIONS TO THE RULE
Spousal disqualification arises in any dispute or matter that sparks a lawsuit or mediation that prompts requests for interspousal communications. The statute prohibits testimony about a private marital conversation even if both spouses want its content disclosed and the information’s release benefits the couple.
Among the policy reasons underlying the spousal testimonial disqualification rule is the consideration of the spouses as a single entity sharing one interest. Courts historically believe the affection spouses share toward one another generates biased, untrue testimony. The believe subjecting a spouse to cross-examination fosters marital disharmony. Further, the importance of preserving the confidentiality of marital conversations is a recognized rationale for barring the spousal testimony.
A 1988 Massachusetts medical negligence case, Gallagher v. Goldstein, involves a wife who draws up a list of her symptoms to discuss with the defendant physician. She suffers a brain hemorrhage before meeting with the doctor. The brain bleed renders her quadriplegic and mentally incompetent to testify at trial. The defendant’s attorney challenges the husband’s proposed testimony that his wife discussed the list with him and told him she had alerted the defendant to her symptoms and her severe headaches. The Court admits the written list of symptoms into evidence but excludes the couple’s private conversation under the spousal disqualification statute.
The spousal disqualification law does not apply to paternity proceedings or child abuse proceedings, including incest. Neither does it apply to criminal actions in which one spouse is charged with committing a crime against the other spouse. The rule does not prevent spousal testimony in nonsupport or parental neglect actions. Another exception to the spousal disqualification rule concerns proceedings arising from or involving a contract between spouses. In a U.S. Bankruptcy Court opinion in which a third party sues a spouse, the judge concludes that the contract exception only applies when the spouses themselves are litigation opponents. Therefore, the Court cannot compel the wife to testify about private conversations with her husband about a contract between them at the behest of someone suing the husband.
Consistent with the fundamental legal tenet that a Grand Jury is entitled to hear every person’s testimony, spousal disqualification applies to spousal testimony at trial, and not to a Grand Jury appearance.
Spousal disqualification operates on the belief that what married couples discuss privately is nobody’s business but their own. Consequently, parties in the throes of divorce can testify against each other.
DEFINING PRIVATE CONVERSATIONS
It is up to the judge to decide what makes a spousal conversation “private” and subject to the marital conversation privilege. Abusive or threatening words one spouse levels at the other do not convey communication and are not covered by the disqualification rule. Neither are utterances of pain and suffering considered private marital conversations. To date, the statute and evidentiary rule are restricted to verbal exchanges. Thus, emojis, text messages, email and the like between married spouses are not private conversations subject to the disqualification rule.
In criminal proceedings, a spouse cannot be compelled to testify at trial against the other spouse. The privilege against testifying is solely within the spouse’s province. The spouse may waive the privilege and testify if he or she so chooses. The other spouse is powerless to object to the spouse’s testimony in a criminal case. A judge, however, without the jury present, generally will determine whether the spouse waiving the testimonial privilege is doing so voluntarily.
Are you looking for an experienced Newburyport or Andover divorce lawyer or family law attorney? If you have any questions about divorce, custody, or family law issues, you may schedule a free consultation with our experienced attorneys. Call (866) 995-6663 during regular business hours and we will respond to your phone call promptly. Spousal privilege cannot be invoked in cases alleging incest, sexual misconduct and other child abuse. . A prosecutor can compel a spouse to testify against the marital partner. Likewise, the privilege is inapplicable in civil actions. Sometimes referred to as spousal immunity, the testimonial privilege applies to events both before and after the marriage occurs. If a spouse invokes the statutory testimonial privilege, he or she may do so regardless of whether that testimony, if given, would be helpful or harmful to the other spouse.