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Editor: Colin Miller
Univ. of South Carolina School of Law

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Monday, December 3, 2007

You Can't Fool Your Wife...But You Can Keep Her Silent: Florida Case Reveals That It Lacks a Crime-Fraud Exception To the Spousal Communications Privilege

Robert Scott Gattuso has been reinstated to his position as a sheriff's deputy in Florida after his case was closed based upon application of Florida's spousal communications privilege.  Two years ago, Garruso's Nissan Pathfinder sunk in Lake Tarpon at night without any passengers.  At 6:50 a.m., the officer who discovered the Pathfinder called Gattuso, who sounded disoriented and possibly intoixcated.  Gattuso claimed that his wife was driving the Pathfinder while drunk, so he told her to pull over and picked her up, leaving the Pathfinder behind.  When authorities contacted Gattuso's wife, however, she denied being drunk on the night that the Parthfinder sunk and claimed that Gattuso had told her that the sinking was a scheme between his brother and he to collect insurance money.  If the sinking was indeed a scheme, it was successful because State Farm later paid Gattuso's insurance claim.  With Gattuso and his wife later separating from each other, Gattuso changed his story to claim that he was having sex with another woman at the time the Pathfinder sunk.  Then, because Gattuso's wife was largely precluded from testifying based upon Florida's spousal communications privilege, the case against Gattuso was closed before any charges were brought.

Florida's spousal communications privilege states that "[a] spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife."  This privilege, which applies in some form in federal courts and many state courts, is in place so that spouses can be open and "honest" when communicating with each other without fear that their private communications will later be aired out in a court of law.  Thus, assuming that Gattuso made his statements about his insurance scheme to his wife in confidence, Florida's case against Gattuso was properly closed if the case relied upon the wife's testimony.

The outcome, however, might very well have been different if Gattuso's case were heard in federal court or the court of another state.  It's difficult to tell from the stories reporting the case, but it appears to me that Gattuso unsuccessfully attempted to get his wife to agree to lie to the police so that he could sink his Pathfinder and collect the insurance money.  Under the version of the spousal communications privilege applied in federal courts and in many state courts, there is a "joint participants" or "crime-fraud" exception, under which statements made between spouses that were intended to further a crime or fraud are not covered by the privilege. See, e.g,. State v. Baluch, 775 A.2d 141, 148 (N.J.Super.A.D. 2001).  I agree with the reasoning used by these courts that while we generally want to protect marital bonds, a privilege which protects the harmony of marital bonds forged in shared criminality may have little to recommend it. See id.  Unfortunately, Florida only has a crime-fraud exception to its attorney-client privilege and its accountant-client privilege, despite the objections of some members of its judiciary. See State v. Famiglietti, 817 So.2d 901, 912 n.12 (Fla.App. 3 Dist. 2002) (Sorondo, J. dissenting).

-CM   

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