There are certain types of communication that the court recognizes as protected from public dissection in the course of criminal cases – even those involving serious crimes against children.
One involves conversations with your clergy. Another involves exchanges with your defense attorney. And one involves communication you have with your spouse.
This is called “marital privilege,” and it essentially means that the private conversations that you have with your spouse – even incriminating ones – can’t be parsed in public. Unless, of course, they can because the courts have ruled this privilege isn’t limitless, as recently illustrated in the case of U.S. v. Breton , reviewed by the U.S Court of Appeals for the First Circuit.
Our Birmingham sex crime defense attorneys recognize this case as a cautionary example of why you can never be too careful with whom you speak regarding crimes you’ve committed or pending criminal charges against you.
Here, according to court records, state police in Maine were investigating an unrelated computer hacking incident and turned up at the door of the defendant, a nuclear electronics supervisor for the Navy who was studying pre-med.
Prior to allowing the investigators inside, the defendant concealed the existence of a personal laptop. When investigators probed about computers in the home, he led them to a desktop upstairs, but never mentioned the laptop. With his permission, the investigators took the desktop.
Later that night, the man told his wife what had happened, revealing he had concealed the laptop. Based on this, the wife chose to take the couple’s young daughter and stay with her mother for a time. She took the laptop with her.
Later, she would turn the laptop over to investigators. When they searched it, they found hundreds of images of child pornography – including images that the wife would confirm were pictures of the defendant with their young daughter.
Prior to this revelation, however, the defendant learned his wife had turned the laptop over to police. He was livid, spouting off numerous text messages that indicated she had ruined everything, he would go to jail and he wished he had shot her.
Prior to the trial, the defense attempted to suppress evidence related to statements he had made to his estranged wife, both in person and via text message. The defendant contended that the statements were made in confidence to his wife during their marriage and, as such, fell under the marital communications privilege.
The common law recognizes two related but separate marital communication privileges:
- Spousal testimony privilege, which allows a husband or wife to refuse to testify adversely against the other in criminal proceedings;
- The marital communications privilege, which allows the defendant to bar his spouse from testifying as to any confidential communications made during
- their union.
So it wouldn’t have even mattered that the wife wanted to testify if the defense could show the incriminating statements were made in confidence while the two were married.
However, one exception to this rule is when a crime has been committed by one spouse against a child of the other (or a child they share in common).
Such was the case here, which is why the district court denied his motion and the appellate court upheld that earlier ruling. The wife testified against her husband and he was ultimately convicted.
Under Alabama Rules of Evidence, Article V, Rule 504 allows exceptions to the marital communications rule when:
- The spouses are adverse parties in a civil action;
- In any criminal proceeding in which the two are believed to have acted jointly in the commission of a crime;
- In any criminal action or proceeding in which one spouse is accused of a crime against either the other spouse, the minor child of either one, a person
- residing in the house or crimes committed against third parties which occurred in the course of crimes committed against any of the others previously
This gives prosecutors a fair amount of leeway. Consult with an experienced attorney before you speak with any other person about your case.