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Fn 4 on p. 933: our decision is in conflict with Ryan and in sharp tension with In Grand Jury and Lindsey case – uniformity fosters predictability and suppresses forum shopping, but we are in no position to resolve this tension in the law. They are almost inviting the Supreme Court to resolve this difference, which the Court has not done thus far



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  • Unit 3: Privileges Chapter 13 the Marital Privilege (Testimonial privilege)
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    Different than the other privileges we have seen; the marriage communication privilege is a true privilege bc it protects the confidentiality of the relationship and encourage free communication





    1. Marital Confidences Privilege

    2. - Protects against the disclosure of confidential communications made by one spouse to another

    1. Spousal Testimonial Privilege
      - Protects against adverse spousal testimony. I.E. husband can prevent wife from testifying against him

    1. Policy- marital harmony

    1. Promotes marital harmony by encouraging the exchange of confidences bw spouses

    1. Requiring one spouse to testify against another can break up a marriage

    1. Application

    1. Applies so long as parties were married at the time of the communication; survives end of marriage

    1. Applies only if parties are married at the time of the trial; doesn’t survive end of marriage

    1. Crim/Civ/Both

    1. Both

    1. Criminal only

    1. Who may assert?

    1. May be invoked by party or non-party (both/either)

    1. May be invoked only by a party; but after Trammel fed practice ruled testifying spouse may assert/waive their right

    1. Notes – acts & observations

    1. Only communications are privileged and only communications intended to be confidential. Thus the presence of a third party or couple’s child will often destroy intent. Most states don’t extend it to what spouses observe

    1. Will cover acts/observations; only protects spouse against testifying, spouse may be required to give non-testimonial evidence such as a handwriting sample or fingerprints

    1. Exceptions

    1. (1) Crime against spouse, (2) Suit between spouses; (3) criminal case justification; (4) conversation centering around crime facilitation (i.e. hiding the loot from a robbery)

    1. (1) Divorce, (2) Crime or tort against spouse or children



      1. The Marital Confidences Privilege – confidential communications privilege

        1. 13.1 – sends wife email from desktop computer he invokes marital confidences privilege. Court concluded this was not privileged bc (1) businesses disclosure policy about monitoring work emails and no expectation of privacy; (2) flash screen that policy was displayed each log in, thus there was no expectation of privacy
          4 factors to consider: (1) Co policy banning personal use? (2) Co monitoring of employee’s computer use? (3) Do third parties have access to computer/emails? (4) Did Co notify employee of policies and monitoring

        2. 13.2 wife leaves note bc she’s aware of husband and his sister’s illegal activity. If the children could have read it would that make a difference? This was clearly something that was intended to be confidential

        3. Rakes (1998)Conversation topic doesn’t affect privilege unless it sheds some light on issue of intent for confidence

        4. 13.3 – criminal D wanting to use woman’s testimony; husband/wife privilege is being claimed. Remember Chambers – constitutional right to confront witnesses and most typically that will trump privilege.
          7th circuit instead uses Rock v. Arkansas (p. 676) – Court held that restrictions of a D’s right to testify may not be arbitrary or disproportionate to the purposes they are designed to serve. 7th circuit concluded here that D must show the privilege was arbitrary or disproportionate to its purposes and he hadn’t done that. *Davis – this is kind of an unusual decision



      2. Spousal Testimonial Privilege - privilege against adverse spousal testimony

        1. Trammel v. United States (1980)departed from Hawkins rule (at that time the privilege belonged to the defendant spouse and we left the door open to change it in light of reason and experience) and now holds privilege belongs to witness spouse so if witness is willing to testify, he/she can, but if spouse invokes privilege than that spouse doesn’t have to testify. A crim D CANNOT prevent his spouse from voluntarily giving testimony against him bc the privilege against adverse spousal testimony belongs to the testifying spouse

        2. Exceptions to spousal testimonial privilege: gov. can compel spouse to testify when:
          (1) they litigate against each other;
          (2)
          in a criminal proceeding that involves a charge of intra-familial wrongdoing such as assault on a spouse or child; society’s needs to deter and punish criminal acts in marriages exceeds the needs to foster privacy in a relationship that is marked by violence;
          (3) Joint participation exception to spousal privilege - a developing post-trammel concept which is not adopted in every jurisdiction **If H and W are both involved in a drug conspiracy, gov. can force W to testify against H by giving her immunity. Rationale - they have forfeited the right to claim a privilege by engaging in criminal activity



    1. Final Note – Brother’s Keeper – fine line between mistrust and blind faith in our jury system – why we purify our evidence through a strainer



    1 For Criminal Ds only because his life & liberty is at hazard and Criminal Ds: (1) bear slightest burden of proof; any favorable evidence may raise a reasonable doubt; (2) argue peaceful/non-violent traits, unlike civil Ds who argue careful traits (law-abiding citizens rarely commit serious crimes); & (3) evidence of good character carries little risk of unfair prejudice to gov. (*doesn’t explain why Ds can offer victim’s bad character bc jury could choose to deny protection to an unsavory victim). **Perrin (10th Cir. 1986) – extended defense opportunity to civil case where Ds were accused of serious crimes, BUT after 2006 amendment the Perrin Doctrine was dead and evidence was only allowed to be presented by criminal Ds

    2 *Note - declarant’s state of mind is important



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