“Privilege” is a work much discussed in American media, often directed at white
privilege, the set of social and economic advantages that white people have by virtue of
their race in a culture characterized by racial inequality. In the criminal justice system,
that institutional bias is as evident as it is in our cultural and economic lives.
But the word privilege takes on a different meaning in the courtroom, where it is an
exception to the general duty of a witness that, if they take the witness stand, they must
testify fully and truthfully. They aren’t permitted to pick and choose which questions they
will answer and which they will not.
In addition to privileges that protect marriage, the law has concluded that a number of
relationships deserve some degree of secrecy because of the importance of private
communication with certain advisers and caregivers. The relationship between a doctor
and a patient comes to mind as an obvious example, or that of a parishioner and his or
her priest or pastor is another. And of course, lawyers are granted a privilege not to
disclose anything learned in confidence from a client. Such confidences promote open
and uninhibited discussion over such things as one’s health, or one’s faith, or one’s
legal dilemmas.
Marriage is yet another of the relationships the law is careful not to disrupt needlessly,
and it does so in two ways. The “marital privilege” protects private communications
between spouses from disclosure in court proceedings. This means that neither spouse
can be compelled to testify in court regarding any private conversation or
communication that occurred within the marriage. The purpose of this privilege is to
encourage open and honest communication between spouses without fear that it could
later be used against them.
The “spousal privilege” allows a spouse to refuse to testify against the other spouse in a
criminal proceeding. This means that a spouse cannot be compelled to provide
testimony or evidence that could implicate their spouse in a crime. The purpose of this
privilege is to preserve marital harmony by preventing spouses from having to choose
between providing incriminating testimony against their spouse or facing contempt of
court charges.
Both the marital and spousal privileges can significantly impact criminal prosecutions.
Prosecutors often rely on testimony of witnesses with knowledge of the crime or the
defendant’s actions. When that witness is the spouse of the defendant, these privileges
may prevent the prosecutor from obtaining critical testimony or evidence needed to
prosecute the case. However, there are some exceptions – for example, in cases of
domestic violence or child abuse, the privileges may not apply. But in general, the
marital and spousal privileges can be a major hurdle for prosecutors to overcome in
building a criminal case against a defendant spouse.
Who makes the call?
The marital and spousal privileges in Massachusetts lie with the spouse who is called to
testify. The spousal privilege, which prevents one spouse from being compelled to
testify against the other, can only be claimed by the witness-spouse. This privilege
applies even if the spouse was not married at the time of the events that are the subject
of the criminal trial. However, this privilege does not apply in civil proceedings, or in any
prosecution for nonsupport, desertion, neglect of parental duty, or child abuse.
In addition to the spousal privilege, Massachusetts also recognizes a “spousal
disqualification,” which prevents a spouse from testifying about private conversations
with the other spouse during their marriage. This disqualification applies in both civil and
criminal proceedings, but there are several exceptions, such as proceedings arising out
of a contract between spouses, proceedings to establish paternity or modify or enforce
a support order, and criminal proceedings in which a spouse has been charged with a
crime against the other spouse.
Complications in criminal cases
Spousal privilege in Massachusetts is a right that belongs to the witness-spouse, not the
defendant-spouse. This privilege allows the witness-spouse to choose whether to testify
or not in a criminal proceeding against their spouse. However, there are several issues
that can complicate this privilege.
First, the privilege is only applicable if the spouse who asserts it is currently married. It
applies even if the spouse was not married at the time of the events that are the subject
of the criminal trial, and even if the spouse who asserts the privilege had testified in an
earlier proceeding or trial.
Secondly, as we’ve seen, the privilege does not apply in certain situations. For instance,
it does not apply in civil proceedings, or in any prosecution for nonsupport, desertion,
neglect of parental duty, or child abuse.
Thirdly, the spousal privilege is different from the spousal disqualification. The latter
disqualifies a spouse from testifying about private conversations with the other spouse
during their marriage, except in very limited circumstances.
Lastly, the defendant has no standing to contest an alleged infringement of spousal
privilege as it applies to the testimony of his spouse. This is because the privilege is that
of the spouse called and not of the defendant.
While these complexities can make the application of the spousal privilege in a criminal
case in Massachusetts challenging, a criminal lawyer will be alert to potential privilege
issues, and will employ them as a defense tool in those (surprisingly common) cases
where they apply.