EvidenceProf Blog

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

Friday, January 15, 2021

Texas Court Finds Jailhouse Calls Between Wife & Incarcerated Husband Not Covered by Confidential Marital Communications Privilege

Texas Rule of Evidence 504(a)(2) states that

A person has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made to the person’s 20 spouse while they were married. This privilege survives termination of the marriage.

So, does this confidential marital communications apply to jailhouse calls because an incarcerated spouse has "no choice but to communicate via monitored communications, and so the privilege should apply"? This was the question addressed by the Texas Court of Appeals, Eastland, in its opinion in Newman v. State, 2021 WL 126697 (Tex. App. 2021).

In Newman, Charles Edward Newman was charged with one count of murder and two counts of tampering with a witness. While incarcerated pending trial, Newman made monitored calls to his wife that were subsequently introduced against him at trial. After he was convicted, Newman appealed, claiming that Texas Rule of Evidence 504(a)(2) should have applied to these calls because, as noted,  he had "no choice but to communicate via monitored communications, and so the privilege should apply." The court responded by noting that Newman did "not cite, and we have not found, any authority to support that proposition."

The court then concluded that

Although Appellant claims that he had a subjective expectation of privacy because of his spousal relationship, he had no reasonable expectation of privacy. Appellant made more than 5,000 calls during his incarceration before trial. At trial, Appellant testified that he was aware of the preamble on all outgoing jail calls in which it was stated that all calls are subject to monitoring and recording. Therefore, Appellant could not have reasonably expected that his conversations were made “privately” to his spouse as required under Rule 504(a)(1), (2). Appellant's argument that his only option to communicate with his spouse is equally unavailing in light of the inherent loss of privacy associated with confinement. Because we find that the recorded conversations were not private, and therefore not privileged, the trial court did not abuse its discretion when it admitted the recordings.



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