Evidence Learning Questions - Set 9 Flashcards
In federal courts, spousal immunity __________.
A
may be invoked in both civil and criminal cases
B
is not terminated upon divorce
C
can be asserted as to matters that took place before the marriage
D
can be invoked by both the witness-spouse and the party-spouse
C
The privilege lasts only during the marriage and terminates upon divorce or annulment. If a marriage exists, the privilege can be asserted even as to matters that took place before the marriage.
Spousal immunity is not held by both spouses jointly. In federal courts, only the witness-spouse may invoke the privilege against adverse spousal testimony. Thus, one spouse may testify against the other in criminal cases, with or without the consent of the party-spouse, but the witness-spouse may not be compelled to testify, nor may she be foreclosed from testifying (except as to confidential communications). Some states ( e.g., California) follow the federal view. In some state courts, the privilege belongs to the party-spouse. Thus the witness-spouse may not be compelled to testify, and she may be foreclosed from testifying if the party-spouse asserts the privilege.
The privilege lasts only during the marriage and terminates upon divorce or annulment.
Spousal immunity may be invoked in criminal cases only. When the privilege of spousal immunity is invoked, a married person whose spouse is the defendant in a criminal case may not be called as a witness by the prosecution, and a married person may not be compelled to testify against his spouse in any criminal proceeding.
Remember that there are two separate privileges related to marriage: spousal immunity and the marital communications privilege. This question is testing your knowledge of spousal immunity.
When may the spousal immunity doctrine be invoked?
A
In criminal or civil cases, as long as the matter concerns a confidential communication between the spouses
B
In criminal or civil cases, for matters that took place before or during the marriage
C
In criminal cases only, for matters that took place before or during the marriage
D
In criminal cases only, for matters that took place during the marriage only
C
When the privilege of spousal immunity is invoked, a married person whose spouse is the defendant in a criminal case may not be called as a witness by the prosecution, and a married person may not be compelled to testify against his spouse in any criminal proceeding. Spousal immunity may be invoked in criminal cases only.
The privilege lasts only during the marriage and terminates upon divorce or annulment. However, if a marriage exists, the privilege can be asserted even as to matters that took place before the marriage.
Spousal immunity may not be invoked in civil cases.
Remember that there are two separate privileges related to marriage: spousal immunity and the marital communications privilege. This question tests your knowledge of spousal immunity.
Which statement regarding the privilege for confidential marital communications is true?
A
The confidential communication must have been spoken aloud.
B
The privilege may be asserted as to communications made after divorce.
C
Either spouse may prevent anyone from disclosing confidential marital communications.
D
The privilege may be asserted as to communications made before the marriage.
C
Both spouses jointly hold the privilege, and either spouse can prevent any other person from disclosing the confidential communication or can refuse to disclose the communication.
The privilege cannot be asserted as to communications made before the marriage. In any civil or criminal case, either spouse, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication made between the spouses while they were husband and wife.
The communication must be made during a valid marriage. Divorce will not terminate the privilege retroactively, but communications after divorce are not privileged.
The confidential communication need not be spoken; it may be made by conduct intended as a communication.
Remember that there are two separate privileges related to marriage: spousal immunity and the marital communications privilege. This question tests your knowledge of the marital communications privilege.
Regarding the privilege for confidential marital communications, __________ spouse can prevent anyone from disclosing confidential communications made __________ a valid marriage.
A
Only the party-; before or during
B
Only the party-; during
C
Either; during
D
Either; before or during
C
Either spouse (whether a party or not) can prevent any other person from disclosing the confidential communication (or can refuse to disclose the communication). The privilege applies to communications made during the marriage. The privilege cannot be asserted as to communications made before the marriage. Remember that there are two separate privileges related to marriage: spousal immunity and the marital communications privilege. This question tests your knowledge of the marital communications privilege.
An indictment was filed in federal district court charging the defendant with violations of federal bank robbery statutes. At trial, the government attempted to introduce into evidence the testimony of the defendant’s wife, who would testify that she had seen the defendant arm himself on several occasions with weapons identical to those used in the bank robberies, had seen him return to their home carrying sacks filled with money with the markings of the robbed banks, and had overheard, while serving meals, the defendant and his co-defendants discussing plans for robbing the various banks and concealing the loot. The defendant’s attorney objected, and the district court judge ruled that the wife’s testimony was within the spousal privilege and could not be admitted over the defendant’s objection.
Was this ruling correct?
A No, because the spousal privilege may be asserted only by the testifying spouse—she may not be compelled to testify nor be foreclosed from testifying.
B No, because there is no federal common law, and the spousal privilege is a creation of the common law.
C Yes, because the privilege not to testify may be asserted by either the testifying or nontestifying spouse.
D Yes, because the defendant and his wife were married at the time and he can prevent her from disclosing the confidential communication.
A
Federal Rule 501 provides that federal courts shall apply rules of privilege developed at common law except in diversity cases, wherein state law controls, but this is not a diversity case. The United States Supreme Court has held that the privilege not to testify may be asserted only by the testifying spouse, and if she is willing to so testify against her husband, the marital relationship is so disharmonious that there is nothing left for the privilege to preserve. Thus, (A) is correct and (B) and (C) are incorrect. (D) is incorrect because it states the privilege for confidential marital communications, which is different from the spousal privilege. Further, the confidential communication was between the defendant and his co-defendants, not between the defendant and his wife.
A defendant was visiting with his girlfriend in his apartment when a visitor came to see him. The defendant and the visitor engaged in a conversation relating to the distribution of illegal narcotics in the girlfriend’s presence. Two months later, the defendant and his girlfriend married. Subsequent to the marriage, the defendant was arrested and charged under federal law with the sale and distribution of drugs. The prosecutor wants the defendant’s wife to testify about the conversation between the defendant and the visitor, but the defendant forbids it.
May the defendant’s wife testify about the conversation?
A Yes, because the conversation occurred prior to their marriage.
B Yes, but only if she chooses to do so.
C No, because the defendant forbids it.
D No, unless both the defendant and his wife agree that she may testify.
B
The wife may testify if she chooses to do so. In federal court, the privilege of spousal immunity belongs to the witness-spouse. There are two privileges based on the marital relationship. Under spousal immunity, a person whose spouse is the defendant in a criminal case may not be called as a witness by the prosecution, and a married person may not be compelled to testify against her spouse in any criminal proceeding. In federal court, one spouse may choose to testify against the other in a criminal case, with or without the consent of the party-spouse. Spousal immunity lasts only during the marriage and terminates upon divorce. However, as long as a marriage exists, the privilege can be asserted even as to matters that occurred prior to the marriage. Because the defendant is a criminal defendant, his wife cannot be compelled to testify about his conversation with the visitor. She may, however, choose to testify, and the defendant cannot stop her. The other choices reflect elements of the privilege for confidential marital communications. Under that privilege, either spouse (whether or not a party) may refuse to disclose, and may prevent another from disclosing, a confidential communication made between the spouses while they were husband and wife. The communication must be made during a marriage, and must be in reliance upon the intimacy of the marital relationship, which is presumed in the absence of contrary evidence. This privilege is not afforded to a communication that is made in the known presence of a stranger. Both spouses jointly hold this privilege. The conversation between the defendant and the visitor cannot qualify as a confidential marital communication for several reasons. Most importantly, it was not a communication between the defendant and his wife. Moreover, the incident did not occur during the marriage. Thus, the privilege for confidential marital communications does not apply, and the defendant cannot prevent his wife’s testimony should she choose to testify. (A) is wrong because it states a reason why the privilege for confidential marital communications does not apply. Spousal immunity still applies; thus (B) is a better choice because it reflects the fact that the wife’s testimony cannot be compelled. (C) is wrong because, in federal court, spousal immunity does not permit the defendant-spouse to foreclose testimony by the witness-spouse. As discussed above, the privilege for confidential marital communications, under which both spouses may prevent disclosure, does not apply here. (D) is wrong for the same reason.
The defendant was being sued for striking and seriously injuring a child with his car one evening while the child was playing in the street near the curb. At trial, the attorney for the child’s parents seeks to have the defendant’s wife testify that he had told her what had happened as soon as he had gotten home, and that he had said, “Between you and me, just before all this happened, I took a quick peek at the back seat to make sure I brought my briefcase home with me. If I had kept my eyes on the road, I never would’ve hit the kid.” The wife was recently divorced from the defendant and eager to testify against him. The prosecution also presented evidence that, unknown to either the defendant or his wife, their neighbor overheard this conversation through her open window.
Assuming a proper objection by the defense attorney, will the wife be permitted to so testify?
A Yes, because she and the defendant were divorced during the time between the making of the statement and the trial.
B Yes, because the fact that the neighbor heard the statement removes the privileged status of the statement.
C No, because the defendant’s statement was a confidential marital communication.
D No, because the privilege to foreclose such testimony belongs to the party-spouse.
C
The defendant’s statement to his wife was made in reliance upon the intimacy of what was at that time their marital relationship. Thus, he has a privilege to prevent her from disclosing the statement. Either spouse (whether or not a party) has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication made between the spouses while they were married. Divorce does not terminate this privilege retroactively. At the time that the defendant made the subject statement to his wife, they were married. Given that the statement essentially constituted an admission of liability by the defendant, that he prefaced it with “between you and me,” and that he made the statement in the privacy of their home, it seems likely that the statement was made in confidentiality and in reliance upon the intimacy of the marital relationship. Thus, both the defendant and his wife may refuse to disclose, and may prevent the other from disclosing, the statement. Consequently, the defendant can prevent the wife from testifying to the statement. (A) is incorrect because the communication was made during the marriage, and the privilege is not abrogated by a later divorce. (B) is incorrect because the fact that the neighbor heard the statement was unknown to the defendant and his wife. If the communication is made in the known presence of a stranger, it is not privileged. However, if the statement was not made within the known hearing of a third party and it is overheard, absent a showing of negligence on the part of the speaker, it remains privileged. Nothing in these facts indicates negligence. Thus, the defendant can prevent his wife from testifying to the statement. (D) is incorrect because the privilege for confidential marital communications belongs to both spouses, rather than to just one. The trial here is a civil case, so the spousal immunity is inapplicable; this question involves the privilege for confidential marital communications. Furthermore, even if spousal immunity did apply, the federal privilege belongs to the witness-spouse, not the party-spouse.
The police arrested the defendant and charged him with murder. After the defendant’s arrest, two police officers went to his home, where they found his wife. The victim had been killed on the night of March 13, and the officers asked the wife to give them the jacket that the defendant wore on the evening of March 13. Without saying a word, the wife handed the officers a jacket that was covered with bloodstains. Crime lab tests established that the blood on the jacket matched the victim’s blood characteristics. At the defendant’s trial for murder, the prosecution seeks to introduce the jacket into evidence.
Assuming the prosecution successfully establishes a foundation, if the defense objects to the jacket’s admissibility, should the court admit the jacket?
A Yes, as relevant evidence linking the defendant to the crime.
B Yes, because the wife waived the marital privilege by handing over the jacket.
C No, as hearsay not within any exception.
D No, because of the privilege against self-incrimination.
A
The jacket is admissible as relevant evidence linking the defendant to the crime. Generally, all relevant evidence is admissible if offered in an unobjectionable form and manner (i.e., if it does not violate an exclusionary rule, such as hearsay). Clearly, the bloodstained jacket makes it more probably true that the defendant committed the murder than it would have been without the jacket; therefore, the jacket is relevant evidence. Because it does not violate any exclusionary rule, the jacket is admissible. (B) is incorrect because neither spousal immunity nor the privilege for confidential marital communications applies in this situation. Spousal immunity prohibits the prosecution from compelling one spouse to testify against the other in a criminal proceeding; that clearly is not at issue here. The privilege for confidential marital communications protects communications (i.e., expressions intended to convey a message) between spouses made in reliance on the intimacy of the marital relationship. Nothing in the facts suggests a confidential communication with respect to the jacket. No privilege applies to observations of a spouse’s condition, actions, or conduct. Furthermore, this is a testimonial privilege and probably would not prevent the wife from handing over real evidence. (C) is incorrect because a jacket is not a “statement,” and the hearsay rule excludes out-of-court statements that are offered for their truth. While the wife’s conduct in handing over the jacket arguably may be a statement and perhaps hearsay, the jacket itself is not. (D) is incorrect because the jacket does not incriminate the wife, and she is the person who gave it to the police. More importantly, the privilege against self-incrimination applies only to testimony, not real evidence.
