Privileges - Marital

United States v. Jarvison, 409 F.3d 1221 (10th Cir. 2005)

The evidence supported the district court’s decision that the defendant and the witness were married pursuant to Navajo law. The court also held that a witness’s right to invoke the spousal privilege applies even in cases of familial child abuse.

United States v. Gilbert, 391 F.3d 882 (7th Cir. 2004)

When the defendant’s spouse refused to testify at trial, relying on the marital privilege, the trial court allowed the government to play her previous statement, because the court found that it had circumstantial guarantees of trustworthiness. Post-Crawford, this was erroneous.

United States v. Montgomery, 384 F.3d 1050 (9th Cir. 2004)

The Ninth Circuit explains the difference between the marital communication privilege (which the defendant and/or the witness may invoke, to bar the disclosure of a communication with his/her spouse) and the spousal privilege (which allows a witness to refuse to testify against his/her spouse). In this case, the trial court erroneously permitted the government to introduce a letter written from the spouse to the defendant accusing him (and his sister) of perpetrating a fraud in their business. The court also held that the communication in this case was not in furtherance of the criminal activity (in fact, it was made in an effort to stop the crime), so that exception to the privilege did not apply.

United States v. Rakes, 136 F.3d 1 (1st Cir. 1998)

The defendant was charged with perjury. He was the victim of extortion and had been called to the grand jury to testify about the crime, but denied that he had been victimized. He confided in his wife, and his attorney about the extortion. The government then sought to compel the testimony of his wife and attorney. The district court upheld the marital communication and attorney-client privilege claims. The First Circuit affirmed. There is no exception to the privileges in cases in which the client is the victim of a crime. The court also held, with respect to the marital privilege, that it applies to conversations that relate to events that occurred prior to the marriage; and also applies after divorce. Finally, there is no exception for conversations that relate to financial matters, assuming the discussion is intended to be confidential.

United States v. Montgomery, 384 F.3d 1050 (9th Cir. 2004)

A wife wrote a letter to her husband, encouraging him to talk to a third party about the third party’s criminal conduct. This communication was covered by the spousal privilege. The court also noted that the privilege belongs not only to the communicating spouse, but to the spouse who receives the communication.

In re Grand Jury, 111 F.3d 1083 (3rd Cir. 1997)

The government subpoenaed the wife of a subject of the grand jury (a subject, not a target) to testify before the grand jury. She asserted the marital privilege. The government offered her immunity – a promise not to use her testimony either directly, or indirectly against her husband, or to seek an indictment against her husband by this grand jury. This was permissible.

United States v. Hall, 989 F.2d 711 (4th Cir. 1993)

The defendant’s wife made statements to an investigator, prior to trial, revealing conversations she had had with her husband about his drug use. Prior to trial, however, she indicated that she would not testify, relying on the marital privilege. When the defendant testified, however, the prosecutor questioned him about the statements made by the wife. When the defense counsel objected because of the lack of foundation, the prosecutor responded (in front of the jury) that the wife had made these statements. Even with a curative instruction, this was reversible error.

United States v. Morris, 988 F.2d 1335 (4th Cir. 1993)

At the grand jury, the defendant’s wife refused to testify, relying on the marital privilege. At trial, however, she testified on behalf of her husband. When cross-examined, she was asked by the prosecutor about her prior invocation of the marital privilege. This was reversible error. Just as a witness may not be asked about the prior invocation of the Fifth Amendment privilege, a witness may not be asked about a prior invocation of the marital privilege. The privilege should not be undermined by permitting the prosecutor to capitalize on a witness’s reliance on the privilege.

United States v. Ramos-Oseguera, 120 F.3d 1028 (9th Cir. 1997)

A spouse’s exercise of the marital privilege not to testify against her husband is not waived by evidence that she was jointly involved in the criminal activity with her husband. That is, there is no “joint participation in crime exception” to the spousal testimonial privilege.

United States v. Marchini, 797 F.2d 759 (9th Cir. 1986)

During the course of the grand jury investigation, the defendant’s wife, who was not married to the defendant at that time, gave testimony which inculpated the defendant. Prior to trial the witness married the defendant. The district court held that the wife’s grand jury testimony could be admitted at the trial since she was now an unavailable witness. The Ninth Circuit affirms.