EvidenceProf Blog

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

Monday, August 1, 2011

Losing Your Privilege: Supreme Court Of Arkansas Finds Marital Privilege Doesn't Apply In Rape Appeal

Arkansas Rule of Evidence 504, Arkansas' husband-wife privilege, states:

(a) Definition. A communication is confidential if it is made privately by any person to his or her spouse and is not intended for disclosure to any other person.  

(b)  General Rule of Privilege. An accused in a criminal proceeding has a privilege to prevent his spouse from testifying as to any confidential communication between the accused and the spouse.  

(c)  Who May Claim the Privilege. The privilege may be claimed by the accused or by the spouse on behalf of the accused. The authority of the spouse to do so is presumed.  

(d)  Exceptions. There is no privilege under this rule in a proceeding in which one [1] spouse is charged with a crime against the person or property of (1) the other, (2) a child of either, (3) a person residing in the household of either, or (4) a third person committed in the course of committing a crime against any of them. 

In Clem v. Hobbs, 2011 WL 3135996 (Ark. 2011), the trial court allowed the defendant's wife to testify regarding confidential communications, but the problem for the defendant was that he was charged with crimes against their children.

In Hobbs, "Joe Edwin Clem was found guilty by a jury in the Craighead County Circuit Court of one count of rape and three counts of accomplice to rape," with the victims being "his son and daughter." After he was convicted, Clem filed a habeas petition, claiming that the trial court erred by allowing his wife to testify at trial concerning confidential communications that the two shared. The Supreme Court of Arkansas disagreed, concluding that "Arkansas Rule of Evidence 504(d)...provides that there is no husband-wife privilege when one spouse is charged with a crime against the other spouse's child or any person residing in the household of either."

So, why is there such an exception to the privilege? Well, the purpose of the privilege is to protect the institution of marriage. The theory is that if spouses know that what they share with their spouses could be exposed in open court, they would hold back and not communicate openly and honestly. Therefore, the privilege deems such communications privileged. At the same time, the State does not have an interest in preserving marriages in which one spouse is abusing the other spouse and/or their children. This is the reason for the exception in Arkansas Rule of Evidence 504(d) and similar exceptions to other states' marital privileges.



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