Can Your Spouse Be Forced to Testify Against You? Spousal Confidentiality in a Personal Injury Lawsu
In any personal injury case, attorneys must familiarize themselves with the relevant facts and evidence at issue in the matter to be able to separate what is known or suspected from what may be proved by competent, admissible testimony.
Recognized Privileges in Florida’s Evidence Code:-lawyer-client privilege
-sexual assault victim-counselor privilege
-domestic violence advocate-victim privilege
-trade secret privilege
The husband-wife marital privilege gives both spouses the ability to refuse to disclose confidential marital communications, and further, gives each spouse the ability to prevent the other from disclosing confidential marital communications. The privilege covers oral, written, and gesture-based marital communications. The marital privilege is recognized to strengthen marital harmony as both parties to the conversation or communication should be able to rely upon its confidentiality. At common law, a spouse could not testify for or on behalf of the other spouse. There was also a common- law privilege protecting the disclosure of marital communications without the consent of both spouses.
Section 90.504. Husband-Wife Privilege(1) A spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife.
(2) The privilege may be claimed by either spouse or by the guardian or conservator of a spouse. The authority of a spouse, or guardian or conservator of a spouse, to claim the privilege is presumed in the absence of contrary evidence.
(3) There is no privilege under this section:
(a) In a proceeding brought by or on behalf of one spouse against the other spouse.
(b) In a criminal proceeding in which one spouse is charged with a crime committed at any time against the person or property of the other spouse, or the person or property of a child of either.
(c) In a criminal proceeding in which the communication is offered in evidence by a defendant-spouse who is one of the spouses between whom the communication was made.
In accord with this privilege, neither spouse may give testimony in any case or proceeding that would expose confidential communications made between them during the marriage. Additionally, either spouse who is testifying as a witness may assert the privilege to prevent disclosing privileged matters, and a spouse who is a party to an action may assert it in order to prevent the other spouse from testifying to privileged matters. Therefore, if a husband calls his wife as a witness, the wife may assert the privilege despite the husband’s wishes that the testimony be disclosed. If the wife is called as a witness to testify against the husband, the husband could assert the privilege despite the willingness of the wife to testify. After the death of a spouse, the marital privilege may be claimed by or on behalf of the surviving spouse. In other words, after the death of one spouse the privilege exists for the benefit of the survivor.
In fact, even if a third party overhears a communication between a husband and wife and either spouse intended it to be privileged, the privilege is to be respected. However, communications made prior to the time two persons are married or after the dissolution of the marriage are not privileged even though the individuals are married at the time of the trial.
What is a “Confidential Marital Communication”?Marital communications are only subject to the spousal privilege if they are confidential. If statements are not intended by either spouse to be confidential, they are not privileged. The intended recipient of the communication must be the spouse, exclusively. For example, a conversation between a husband and wife standing at opposite sides of a room during a cocktail party is not privileged since there is not a reasonable expectation of privacy on the part of the husband and wife. They could not have intended the conversation to be confidential. However, when there is a reasonable expectation of privacy and if the spouses intend that their communications are privileged, the privilege applies despite the fact that the communications are overheard. If an unknown third person listens through a closed door when it is not reasonably apparent to either the husband or the wife that the third party is present, the privilege is not destroyed. The term communications refer to more than conversations or letters between husband and wife. Physical actions and expressions that are intended to convey a meaning from one spouse to the other are communications and are privileged. However, the privilege is not generally applicable to facts or acts. Spoken or written statements, signs or even gestures are protected but observations of a spouse’s conduct are not. Thus, a spouse who hears a confession can be prevented from testifying to it, but a spouse who sees the crime occur cannot. Consider the following example: if a wife talks to her husband in confidence about how she was drunk when she hit a bicyclist, then that communication would be privileged. Conversely, if the wife came back on the night of the accident obviously intoxicated and the husband observed these behaviors, he could be compelled to testify as to these observations.
Can the Husband-Wife Privilege in Florida be Waived?Yes, it can. The privilege is subject to waiver either by express means or by conduct. If either spouse voluntarily discloses a substantial portion of a privileged communication, the privilege is waived as to all other communications on the same subject matter. Additionally, if either spouse tells a friend the contents of a privileged communication, the spouse may not assert the privilege as to that communication when subsequently called as a witness. However, keep in mind that since the marital privilege is held by both parties to the marriage, the waiver by one spouse does not bar the other from asserting the privilege. For instance, one spouse may still assert the privilege despite the other spouse’s voluntary disclosure of a privileged communication. Simply, marital communications are only privileged if they are made in confidence. Neither spouse may claim the privilege if their communications were reasonably overheard by a third party. The privilege may also be waived by failing to assert it during a court proceeding when a witness is testifying to privileged matters. However, when a privilege has been partly waived by failure to object, it can be reasserted to protect information that has not yet been revealed.
Are there any Exceptions?Yes. Although the husband-wife marital privilege in Florida is virtually absolute when it applies, there are exceptions. It should not be seen as a protective shield in every case. It does not apply when one spouse is charged with a crime committed against the person or property of the other spouse or of a child of either, but the privilege does apply if the spouses commit a crime as coconspirators. It does not apply in dissolution proceedings or other legal action between husband and wife. Nor does it prohibit a criminal defendant from offering into evidence an interspousal communication in which he or she participated. It does apply after divorce to communications made during the marriage.