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Angiulo: Marital Privilege May Keep Spouses out of the Witness Box

Monday, February 29, 2016


There are certain things that a spouse will only say to their partner. Sometimes it's what they really think about the neighbors. Sometimes it's a fear that lives deep in the psyche and comes out in the middle of the night.  Sometimes it is an admission to a crime. Naturally, people that are in the business of law enforcement may be interested to know the contents of these whispered confidences.  Our legal tradition in Massachusetts, however, operates to protect the marital relationship and shield spouses from being forced to testify against their loved ones.

The spousal privilege is one of several protections in our legal system designed to shelter communications in specific relationships. The privileges recognized by the Massachusetts Court are all designed to achieve some purpose.  Take, for example, the attorney-client privilege that protects conversations between a client and lawyer about legal matters.

The recent case of Commonwealth v. Garcia from the Massachusetts Appeals Court digs into the marital privilege in the Commonwealth. In its evaluation, the court was faced with a difficult allegation of sexual assault. A stepdaughter accused her stepfather of the violation. Disputed evidence at trial included statements by the defendant to his wife that were allegedly an admission to the crime charged. Exactly how these statements came into play at trial, and who testified to them, is a little complicated. What is clear, however, is the court's explanation of a spouse's privilege. 

Just because the privilege exists does not prevent a spouse from being subpoenaed to appear at a trial. Once they appear on the ordered date, they will be able to choose whether or not to take the witness stand. This choice can only be made by the spouse who is the witness. The accused has no standing to object to the testimony. What this means is spouses who are the victims of crimes will be able to make their own choice. What it also means is that two people who have chosen to live their lives together, and trust each other with their deepest confidences, will not be driven apart because of a court order.  

There is a related legal issue surrounding private conversations between spouses. The marital disqualification statute discusses an additional way to keep such testimony out of trial. The Garcia court explained that this statute was written to ensure marital communications remained private with limited exceptions. In practice, this means even if a spouse discloses contents of a marital communication to a third party the information is still excluded from trial.

The strength and importance of marriage in our society is reflected in the statutory and common law rules discussed in Garcia. For many people the bond with their spouse is valued more than the contents of any bank account or physical item. While some people would want to gather information about a crime by any means necessary, still others value the privacy of their homes and their chosen spouse. The present state of the law respects those marriage bonds.   

Leonardo Angiulo is an Attorney in the city of Worcester handling legal matters across the Commonwealth. He can be reached by email [email protected] and found on the web at www.angiulolaw.com


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