Invoking the Spousal Privilege

In New York, the spousal confidentiality privilege is codified at subdivision (b) of Civil Practice Law & Rules (CPLR) ' 4502. Concerning trial testimony, it states: “(b) Confidential communication privileged. A husband or wife shall not be required, or, without consent of the other if living, allowed, to disclose a confidential communication made by one to the other during marriage.” Thus, there are two aspects to the law in New York ' one prohibiting prosecutors or others from compelling one spouse to testify against the other, and the other permitting a spouse to preclude the testimony even of a willing witness spouse. It is this second potion of the law that we will be concerned with.

Federal courts also protect private communications between spouses from disclosure, permitting the non-testifying spouse to invoke the marital privilege.

Evolving Case Law

The spousal testimonial privilege, in its original form, was absolute. See, generally, Richardson, Evidence [8th ed.], ' 457; 8 Wigmore, Evidence [3d ed.], ' 2337; McCormick, Evidence [1954], ' 88). However, statutory and case law have evolved to limit its scope, so that the right to assert the marital privilege is no longer unfettered. Today ' and of primary importance to family law practitioners ' in situations involving violence or other harm against an accused's spouse or that spouse's child, attempts to invoke the privilege to keep damaging testimony away from the trier of fact will often fail. Other exceptions to the privilege apply as well, but not all harms to family members are exempted from disclosure.

General Requirements

In order to invoke the spousal testimonial privilege, there must be: 1) a communication; 2) made in confidence; 3) in reliance on the marital relationship.

What is a “communication” for purposes of the rule? Courts have held that not only is verbal communication covered by this rule, but also acts one spouse performs in the presence of the other in reliance on the marital bond. See, e.g., People v. Daghita, 299 NY 194 (1949) (spousal privilege applied where husband brought stolen goods home relying on the privacy and confidentiality of the marital relationship). Some acts, however, cannot be classified as communications. For example, in People v. Wilson, 64 NY2d 634 (1984), the judge charged the jury that the suspect's wife refused to testify as to her husband's whereabouts on the afternoon he allegedly perpetrated a crime. The defendant objected, arguing that the “missing witness” charge violated his right to assert the spousal privilege. The Court of Appeals, unconvinced, stated, “Although acts as well as words may be 'communications,' they are not privileged unless they are confidential, and the privilege is designed to protect not all daily and ordinary exchanges between spouses, but merely those that would not have been made, but for the absolute confidence in and induced by the marital relationship; despite defendant's arguments to the contrary, it cannot be said that the mere fact of his presence or absence from his apartment constituted a communication which would not have been made but for the marital relationship.”

The communication, to attain privileged status, must be made confidentially and in reliance on the marital bond, as noted in Wilson. Thus, if an act or statement is communicated in the presence of others, or is only inadvertently communicated to the spouse, it is not likely to qualify. In People v. Melski, 10 NY2d 78 (1961), for instance, a convicted man's appeal, based in part on his objection to his wife's testimony, failed because of lack of a confidential communication. There, the wife walked into the family kitchen to find her husband in the company of several accomplices to a gun theft. She testified that the men were together at her home on the night in question. The court found that the incriminating fact that accomplices were present with the defendant in his home was not something about which the defendant could keep his wife from testifying. “The 'communication' was not only originally made in the presence of the friends and voluntarily repeated prior to the trial, but seems to have been made under circumstances which would indicate that it was not originally intended to be communicated to the wife” because she was not invited into the kitchen, said the court. Thus, the “communication” should not be precluded.

Similarly, a communication made in a situation involving spousal abuse but concerning another crime was held not subject to the privilege in People v. Mills, 1 NY3d 269 (2003). There, a man made an incriminating statement to his wife while attempting to strangle her, concerning an unrelated violent act committed years earlier that resulted in a death. The Mills court found there was “ample record support for the undisturbed finding of the trial court that defendant's statements to his wife were not confidential. Defendant's wife gave a statement to the police in which she described how defendant was choking and threatening her while he told her about the crime. During this episode, defendant stated that he was so mad that he could kill her 'just like he did with that kid.' Under these circumstances, County Court properly concluded that defendant's inculpatory statements were not made in the context contemplated by the privilege.”

Harm to a Spouse

The common law reserved an exception to the rule that a person could not testify about confidential communications with a spouse without the spouse's consent: The witness would not be prevented from testifying if the harm complained of was perpetrated on the witness by his or her spouse, even if the responsible spouse asserted the marital communication privilege. 8 Wigmore, Evidence (McNaughton rev.), ' 2239, p. 242. In Poppe v. Poppe, 3 NY2d 312 (1957), New York's Court of Appeals interpreted the predecessor statute to subdivision (b) of CPLR ' 4502 to continue that common-law exception, stating, “It is ' perfectly clear that the statute was never designed to forbid inquiry into the personal wrongs committed by one spouse against the other.” After all, the purpose of the rule ' to preserve harmony and closeness in marriages ' has already been severely compromised when a wrong is committed by one spouse against the other. By allowing a spouse to testify as to wrongs committed against him or her by the other spouse, this exception ensures that married parties will not be able to injure one another with impunity.

Next month, we will discuss further exceptions to the marital privilege, particularly those pertaining to injuries to children.

Janice G. Inman is Editor-in-Chief of this newsletter.

Several states have historically endeavored to promote the health and longevity of marital relationships through legislation and case law. In the context of civil and criminal court proceedings, state laws attempt to advance this goal by permitting one spouse to preclude the other from testifying about certain confidential communications between them, often precluding the courts from obtaining access to valuable evidence. Because of these competing societal interests and changing norms, the law on this subject continues to develop.

The concept of this so-called spousal privilege derived from the common law, where it was seen as a means of encouraging open communication between husbands and wives, which in turn would presumably strengthen and preserve the marital bond. Siveke v. Keena , 110 Misc.2d 4 (1981).

New York Spousal Privilege

In New York, the spousal confidentiality privilege is codified at subdivision (b) of Civil Practice Law & Rules (CPLR) ' 4502. Concerning trial testimony, it states: “(b) Confidential communication privileged. A husband or wife shall not be required, or, without consent of the other if living, allowed, to disclose a confidential communication made by one to the other during marriage.” Thus, there are two aspects to the law in New York ' one prohibiting prosecutors or others from compelling one spouse to testify against the other, and the other permitting a spouse to preclude the testimony even of a willing witness spouse. It is this second potion of the law that we will be concerned with.

Federal courts also protect private communications between spouses from disclosure, permitting the non-testifying spouse to invoke the marital privilege.

Evolving Case Law

The spousal testimonial privilege, in its original form, was absolute. See, generally, Richardson, Evidence [8th ed.], ' 457; 8 Wigmore, Evidence [3d ed.], ' 2337; McCormick, Evidence [1954], ' 88). However, statutory and case law have evolved to limit its scope, so that the right to assert the marital privilege is no longer unfettered. Today ' and of primary importance to family law practitioners ' in situations involving violence or other harm against an accused's spouse or that spouse's child, attempts to invoke the privilege to keep damaging testimony away from the trier of fact will often fail. Other exceptions to the privilege apply as well, but not all harms to family members are exempted from disclosure.

General Requirements

In order to invoke the spousal testimonial privilege, there must be: 1) a communication; 2) made in confidence; 3) in reliance on the marital relationship.

What is a “communication” for purposes of the rule? Courts have held that not only is verbal communication covered by this rule, but also acts one spouse performs in the presence of the other in reliance on the marital bond. See, e.g., People v. Daghita , 299 NY 194 (1949) (spousal privilege applied where husband brought stolen goods home relying on the privacy and confidentiality of the marital relationship). Some acts, however, cannot be classified as communications. For example, in People v. Wilson , 64 NY2d 634 (1984), the judge charged the jury that the suspect's wife refused to testify as to her husband's whereabouts on the afternoon he allegedly perpetrated a crime. The defendant objected, arguing that the “missing witness” charge violated his right to assert the spousal privilege. The Court of Appeals, unconvinced, stated, “Although acts as well as words may be 'communications,' they are not privileged unless they are confidential, and the privilege is designed to protect not all daily and ordinary exchanges between spouses, but merely those that would not have been made, but for the absolute confidence in and induced by the marital relationship; despite defendant's arguments to the contrary, it cannot be said that the mere fact of his presence or absence from his apartment constituted a communication which would not have been made but for the marital relationship.”

The communication, to attain privileged status, must be made confidentially and in reliance on the marital bond, as noted in Wilson. Thus, if an act or statement is communicated in the presence of others, or is only inadvertently communicated to the spouse, it is not likely to qualify. In People v. Melski , 10 NY2d 78 (1961), for instance, a convicted man's appeal, based in part on his objection to his wife's testimony, failed because of lack of a confidential communication. There, the wife walked into the family kitchen to find her husband in the company of several accomplices to a gun theft. She testified that the men were together at her home on the night in question. The court found that the incriminating fact that accomplices were present with the defendant in his home was not something about which the defendant could keep his wife from testifying. “The 'communication' was not only originally made in the presence of the friends and voluntarily repeated prior to the trial, but seems to have been made under circumstances which would indicate that it was not originally intended to be communicated to the wife” because she was not invited into the kitchen, said the court. Thus, the “communication” should not be precluded.

Similarly, a communication made in a situation involving spousal abuse but concerning another crime was held not subject to the privilege in People v. Mills , 1 NY3d 269 (2003). There, a man made an incriminating statement to his wife while attempting to strangle her, concerning an unrelated violent act committed years earlier that resulted in a death. The Mills court found there was “ample record support for the undisturbed finding of the trial court that defendant's statements to his wife were not confidential. Defendant's wife gave a statement to the police in which she described how defendant was choking and threatening her while he told her about the crime. During this episode, defendant stated that he was so mad that he could kill her 'just like he did with that kid.' Under these circumstances, County Court properly concluded that defendant's inculpatory statements were not made in the context contemplated by the privilege.”

Harm to a Spouse

The common law reserved an exception to the rule that a person could not testify about confidential communications with a spouse without the spouse's consent: The witness would not be prevented from testifying if the harm complained of was perpetrated on the witness by his or her spouse, even if the responsible spouse asserted the marital communication privilege. 8 Wigmore, Evidence (McNaughton rev.), ' 2239, p. 242. In Poppe v. Poppe , 3 NY2d 312 (1957), New York's Court of Appeals interpreted the predecessor statute to subdivision (b) of CPLR ' 4502 to continue that common-law exception, stating, “It is ' perfectly clear that the statute was never designed to forbid inquiry into the personal wrongs committed by one spouse against the other.” After all, the purpose of the rule ' to preserve harmony and closeness in marriages ' has already been severely compromised when a wrong is committed by one spouse against the other. By allowing a spouse to testify as to wrongs committed against him or her by the other spouse, this exception ensures that married parties will not be able to injure one another with impunity.

Next month, we will discuss further exceptions to the marital privilege, particularly those pertaining to injuries to children.

Janice G. Inman is Editor-in-Chief of this newsletter.