Case Law Development: Marital Communications Privilege Doesn't Apply to Prisoner Correspondence

Being married to you attorney gives you no particular privileges.  The 9th Circuit Court of Appeals reviewed a fascinating assertion of the marital communications privilege.  In this case, the government had sought access to letters written by a prisoner to his wife, who was also his attorney.  The attorney-client privileged and work product portions of the letters had already been redacted and husband asserted the marital communications privilege to protect the remainder of the letters from disclosure.  (Causing me to wonder where the line is between talking to your attorney and talking to your spouse?)

The court of appeals assumed, without deciding, that "a recording or document containing a confidential marital communication is protected from disclosure to an adverse party during an investigation." Nevertheless, the court held in the circumstances of prisoner communications, the privilege does not apply, since prison authorities have had the right to read letters written to spouses. "There is no free-standing marital communications privilege, under either federal or state law, allowing a California prisoner to send confidential letters from prison to his or her spouse."  Given that, the court was unwilling to find that such a privilege existed merely because these communications were contained in the same document as attorney-client privileged communications.

United States v. Griffin, 2006 U.S. App. LEXIS 6393 (March 16, 2006) bgf