Class 28: Other Privileges; Authentication and... Best Evidence - Apr. 23 Flashcards
What are the two marital privileges? (Q)
The two marital privileges are:
(1) the spousal immunity privilege and
(2) the marital communications privilege.
The spousal immunity privilege is in place to protect the harmony of marriages by not forcing a person to testify against his or her spouse in a criminal case. The confidential marital communications privilege is in place to foster healthy communications and full disclosure between spouses by protecting confidential communications made between the spouses during the marriage.
May a person claiming the spousal immunity privilege be required to testify against his or her spouse in a criminal case? (Q)
No. A person claiming the spousal immunity privilege may not be required to testify against his or her spouse in a criminal case. The privilege applies only during an active marriage (i.e., it does not apply to divorced or permanently separated couples). However, the privilege does not apply if the primary purpose of the marriage was to establish the privilege. If the privilege applies, it is comprehensive: it excuses a person from testifying against his or her spouse on all matters, including communications and actions, whether or not they occurred during the marriage.
In what circumstances does the spousal immunity privilege apply? (Q/Russo)
The spousal immunity privilege applies only in a criminal case in which:
(1) one spouse is the defendant or the target of a grand jury investigation,
(2) the witness-spouse is called to give adverse testimony,
(3) the defendant-spouse and witness-spouse are currently married, and
(4) the witness-spouse asserts the privilege.
If these conditions are met, and assuming no exceptions apply, the spousal immunity privilege allows the witness-spouse to refuse to testify against the defendant-spouse.
(4/23)
May the spousal immunity privilege be waived? (Q)
Yes. The spousal immunity privilege may be waived if the witness-spouse chooses to testify against the defendant-spouse.
Does the spousal immunity privilege apply if the spouses were co-conspirators in a crime? (Q)
No. The spousal immunity privilege does not apply if the spouses were co-conspirators in a crime. The privilege also does not apply if one spouse is charged with a crime against the other spouse, the marital property, or a child of either spouse.
The defendant was charged in federal court with mailing a threatening communication to his estranged wife. The defendant allegedly mailed his wife a letter threatening to kill her with a shotgun. At trial, the prosecutor called the wife as his first witness. The wife declined to answer any questions, asserting spousal testimonial privilege. The prosecutor asked the court to order the witness to answer, arguing that the spousal testimonial privilege did not apply when one spouse had allegedly committed a crime against the other.
Should the court order the wife to testify? (Q)
Yes. The court should order the wife to testify because the spousal immunity privilege does not apply if one spouse has been charged with a crime against the other. The spousal immunity privilege applies in criminal cases in which a witness-spouse who is currently married to a defendant-spouse is called to give testimony adverse to the defendant. This privilege does not apply if (1) the defendant and witness were co-conspirators in a crime or (2) the defendant is charged with a crime against the spouse, the marital property, or a child of either spouse.
Here, the witness-spouse—the wife—is asserting the privilege to avoid giving testimony against her husband, the defendant-spouse in a criminal case. However, because the defendant has been charged with a committing a crime against the witness-spouse, the spousal immunity privilege does not apply. Thus, the wife must testify.
What is the marital communications privilege? (Q)
Under the marital communications privilege, a person cannot be required to testify regarding confidential communications the person had with his or her spouse while they were married.
What is a confidential communication in the context of the marital communications privilege? (Q)
A confidential communication is one expressed privately between the married spouses and not in the presence of, or likely to be overheard by, third parties. Voluntary disclosure of a communication waives the privilege.
Does the marital communications privilege extend to acts? (Q)
No. The marital communications privilege extends only to words and not to acts.
Does the marital communications privilege apply both in civil cases in which federal law provides the rule of decision and in federal criminal cases? (Q)
Yes. The marital communications privilege applies both in civil cases in which federal law provides the rule of decision and in federal criminal cases. There are three exceptions to this privilege. Marital communications are not privileged in:
(1) suits between spouses, including divorce and child custody suits;
(2) proceedings in which one spouse is charged with a crime or tort against the other or against children in the household; and
(3) situations in which spouses jointly participate in criminal acts.
Does the marital communications privilege continue to apply even after the marriage is dissolved? (Q)
Yes. The marital communications privilege continues to apply even after the marriage is dissolved, although it only protects confidential communications made during the marriage. This differentiates the marital communications privilege from the spousal immunity privilege, which applies only during an active marriage and thus does not apply to divorced or permanently separated couples.
May either spouse invoke the marital communications privilege? (Q)
Yes. Either spouse may invoke the marital communications privilege. This means that even if one spouse is willing to testify about confidential marital communications, the other spouse can invoke the privilege to prevent the testimony.
What does FRE 901 govern? (LII)
FRE 901 governs authenticating or identifying evidence.
What does FRE 902 govern? (LII)
FRE 902 governs evidence that is self-authenticating.
What is the best evidence rule? (Q)
The best evidence rule provides that an original writing, recording, or photograph is required to prove its contents, unless the Federal Rules of Evidence (FRE) or a federal statute provide otherwise. In other words, a party cannot prove the contents of a document by testimony or a copy of the document unless the original is shown to be unavailable through no fault of the party.
