Sunday, April 30, 2006
Case Law Development: Marital Communications Privilege Protects Even Marriages With Ongoing Domestic Abuse
The US District Court for the Middle District of Georgia explored the outer limits of the marital communication privilege in a criminal case in which the government sought the testimony of the defendant's wife. The 11th Circuit has held the marital communications privilege is not available when a married couple was permanently separated at the time of communication. However in this case, husband and wife were still married and living together. The government argued, however, that husband's urging that wife get a divorce and his severely and continual emotional, physical and sexual abuse of his wife should, as a matter of public policy, exempt the marriage from the protections of the privilege.
The district court recognized that there was authority for an exception to the privilege when a spouse commits abuse and then invokes the privilege to escape liability for that abuse, however here the criminal charges did not relate to the
domestic abuse. The court also noted the "dual participant" exception in which the privilege does not apply when both spouses are engaged in criminal activity. However, the court found no authority to support the government's requested exception, noting that, "For better or worse, it appears that abusive husbands who happen to be engaged in individual criminal activity still enjoy the marital communications privilege as it relates to those other activities in the vast majority of courts in the nation."
The district court concluded that "The Government's public policy argument has a certain appeal- that spouses engaged in criminal activities should not be able to use the marital communications privilege to block their innocent spouses from testifying to these crimes... As other courts have recognized, and this Court finds persuasive, the judiciary should be extremely hesitant to play any role in determining which marriages are worth protecting. ... The Court recognizes the wisdom in the Eleventh Circuit's differentiation between permanent separations and valid marriages... However, if any court is going to further weaken the marital communications privilege to include a "single participation exception," that court should be the Eleventh Circuit."
The court then reviewed each piece of requested testimony and determined that the privilege did not apply to most of the requested testimony as it was either an observation or was not made in circumstances indicating it was confidential.
United States v. Harrison, 2006 U.S. Dist. LEXIS 23556 (April 26, 2006) bgf