Privileges Flashcards
In federal courts, spousal immunity __________.
“can be asserted as to matters that took place before the marriage”. 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?
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?
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.
Either; during.
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?
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 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?
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.
