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Question 1

What is involved in the exception to the confidential communications privilege for “proceeding against one spouse for committing a crime against the person or property of the other spouse/their kids“?

Answer 1

For example if a husband was prosecuted for abusing his wife, he cannot stop the wife from testifying about him threatening to kill her. Or if the wife is too scared to testify, the prosecution can force her to testify or impeach her with her 911 calls statement if she lies

Question 2

What is involved in the exception to the confidential communications privilege for when a spouse is a criminal defendant?

Answer 2

If the criminal defendant’s spouse wants the other spouse to testify for him, or wants to testify himself to confidence of marital communications, no privilege applies. The reasoning is that you want a criminal defendant to have a right to a fair trial and a full defence

Question 3

If a criminal defendant wants to testify that he told his wife something that helps his case, can the wife stop him from doing it under the confidential communications privilege?

Answer 3

No, because of the exception for when a spouse is a criminal defendant

Question 4

If a criminal defendant wants to call his wife as a witness, can she refuse to disclose communications under the confidential communications privilege?

Answer 4

No, because of the exception for when a spouse is a criminal defendant

Question 5

If a husband is prosecuted for murder, and at trial he wants his wife to testify that he told her it was an accident, would this be permissible under the confidential communications privilege?

Answer 5

Yes, because of the exception for when a spouse is a criminal defendant, so he would be allowed to call his wife whose testimony would exculpate him and that overrides the confidential communications privilege

Question 6

If a plaintiff sues a guy for fraud, and the plaintiff calls the guy’s ex-wife to testify that she saw the guy fill phones with sand, can the guy stop this testimony under the confidential communications privilege?

Answer 6

No, because the ex spouse is being asked about something she saw, not something that the guy communicated to her

Question 7

What is the spousal privilege?

Answer 7

A privilege not to be called as a witness by the adverse party when a spouse is a party. But the spouse that is being called to testify is the holder of this privilege, so he can testify if he wants to

Question 8

What is the rationale behind the spousal privilege?

Answer 8

One spouse shouldn’t be forced to testify against the other because it will harm the existing marriage

Question 9

What is necessary in order for the spousal privilege to apply?

Answer 9

The couple must be currently married at the time that one spouse is having to give a testimony (so there is a marriage to be harmed)

Question 10

What are the things that a spouse can refuse to testify about under the spousal privilege?

Answer 10

Everything. Confidential communications during marriage, non-confidential communications, observations, things that happened before marriage, etc.

Question 11

If a prosecutor calls a wife to testify against her husband and she wants to, can she do that under the spousal privilege?

Answer 11

Yes, because the spouse that is being called to testify is the holder of the privilege, so they can testify if they want

Question 12

If a couple is not currently married at the time of testimony, does the spousal privilege apply?

Answer 12

No

Question 13

What are the requirements regarding the state of the marriage for both confidential communications privilege and spousal privilege?

Answer 13

• confidential communications: the couple had to have been married at the time of the thing was being testified about, but they don’t have to still be married when the testimony is given
• spousal: the parties must be married at the time that testimony is given, but they needn’t have been married at the time that the event happened

Question 14

What are the two different considerations under spousal privileges?

Answer 14

– If the spouse is a party to the preceding

– if the spouse is not a party

Question 15

What is the rule under spousal privilege when the spouse is a party to a proceeding?

Answer 15

A spouse has a privilege not to be called as a witness by the adverse party if the other spouse is a party to the preceding. The other spouse can refuse to testify at all.

The spouse must be called by the opposing party before he has a right not to testify. If the spouse himself calls the other spouse to testify then spousal privilege doesn’t apply

Question 16

If a husband calls his wife to testify for him in his case in chief, since she testified on direct for her husband, if the prosecution wants her to testify on cross against the husband, can she refuse?

Answer 16

No, because she already did testify so the spousal privilege doesn’t apply

Question 17

If a husband is prosecuted for robbery and in his case in chief he calls his wife to testify that he was home that night, on cross, can the plaintiff ask the wife to admit that her husband gave her a necklace from the robbery under the spousal privilege?

Answer 17

Yes because the privilege was waived when the wife testified for her husband. Since her husband is a party, the wife’s privilege is not to be called by the adverse party. But she was called by her own husband, so when she testified favourably for him, fairness requires that she be crossed about the same topic, even if it means testifying adversely to her husband

Question 18

If a husband is prosecuted for battery and the prosecution wants to call his wife to testify that she saw him commit the battery, is she permitted to refuse to do this under the spousal privilege?

Answer 18

Yes because she holds a privilege not to be called by the adverse party

Question 19

If the spouse is not a party under the spousal privilege, what does that mean?

Answer 19

The spouse has a privilege not to testify against the other spouse even if the spouse is not a party. The other spouse cannot refuse to TESTIFY, but once the questions veer into asking the spouse to testify adversely against her spouse, she can refuse to answer that line of questions.

Question 20

If a husband witnessed an accident and testified about it, then the prosecution called his wife to the stand, can she refuse to testify under the spousal privilege?

Answer 20

No, because her husband is not a party, but if the prosecution says that her husband lied about seeing the accident, she can refuse to testify against her husband by refusing to answer that question

Question 21

What are the exceptions to the spousal privilege?

Answer 21

– when the proceeding is for the benefit of one spouse or the spouse’s kids
– litigation between spouses
- spouse charged with a crime against the person or property of the other spouse or one of their kids
– suit brought for the benefit of the witness spouse
- marry the witness exception

Question 22

If a spouse is charged with a crime against a person or the property of the other spouse or one of the kids, what does that entail as an exception to spousal privilege?

Answer 22

It means that the wife can be compelled to testify about domestic violence if she’s called by the prosecution

Question 23

What does it mean as an exception to the spousal privilege for “suit brought for the benefit of the witness spouse“?

Answer 23

If a husband sues for damage to the family home that the wife also owns, the exception applies

Question 24

What is involved in the “marry the witness exception“ to spousal privilege?

Answer 24

If the witness-spouse knew of a crime prior to marriage and that the other person had been arrested or charged prior to marriage, the witness-spouse cannot refuse to testify about it later once they are married.

Question 25

If a husband is prosecuted for theft before he marries his wife, and the wife saw him do it and knew about the theft charge before they got married, after they get married if the prosecution calls the wife to testify that she saw the husband commit the theft, would the spousal privilege allow that?

Answer 25

Yes under the exception for “marry the witness“ because she knew of the pending theft charge at the time of the marriage