Spousal Privilege
In general
• Indiana statute provides that spouses are not required to testify regarding confidential communications made to one another other.
• This has been interpreted as protecting only those communications “as pass from one to the other by virtue of the confidence resulting from their intimate relations with one another.”
Hazelwood v. State, 609 N.E.2d 10, 14-15 (Ind. Ct. App. 1993)
• [I]n Indiana, confidential marital communications are the only communications subject to spousal privilege.
State v. Roach, 669 N.E.2d 1009, 1012 (Ind. Ct. App. 1996)
• The marital privilege is not available in an action concerning child abuse or neglect.
Baggett v. State, 514 N.E.2d 1244 (Ind. 1987)
Background Information
• At common law there were two types of spousal privilege: “testimonial” and “confidential communications.” The testimonial privilege covered all communications between spouses, if the communication occurred during the marriage. Either spouse could invoke the privilege, and prevent the other from testifying. The confidential communication privilege applies only to communications during the marriage which were intended to be confidential. This privilege can be invoked even after the marriage is over. However, either party can waive the privilege--so one party can’t prevent the other from testifying if the other wishes to testify. Indiana uses the "confidential communications" privilege.
See, generally, Glover v. State, 836 N.E.2d 414, (Ind. 2005)
Existence of the marital relationship
• The marriage in this case was entered into before the crime in question and for reasons other than to prevent Dhaliwal from testifying. Similarly, communications in an effort to provide false testimony are not protected by the privilege because they are intended to cause communications to others. But as a general proposition, we hold that a marriage valid under applicable law is sufficient to permit a witness to invoke the marital privilege.
Glover v. State, 836 N.E.2d 414, 419 (Ind. 2005)
• The defendant was not entitled to spousal privilege to prevent the woman whom he married from disclosing communications between them where, at the time he married the woman, he was still married to another woman, so that the woman was not his wife.
See Barajas v. State, 627 N.E.2d 437 (Ind. 1994)
• The defendant's statements to his fiancée approximately one month before they married were not protected by the marital communications privilege.
See Hazelwood v. State, 609 N.E.2d 10, 15 (Ind. Ct. App. 1993)
• The testimony of the defendant's girlfriend was not subject to being excluded as a confidential communication despite the claim that, as a result of an ongoing relationship for six years, the individuals considered themselves man and wife, though there was no formal marriage, and expected keeping of confidences as to conversations between them.
See Lane v. State, 364 N.E.2d 756 (Ind. 1977)
Waiver
• The trial court acted within its discretion when it allowed the defendant's wife to testify against him in contravention of the marital privilege. Prior to trial, a hearing was held outside of the presence of the jury where the wife was questioned by the trial court and counsel for both parties regarding her waiver of the marital privilege as part of a plea agreement, and the wife testified that she knew of the marital privilege, that it had been explained to her, and that she had voluntarily chosen to waive the marital privilege and testify against defendant, and that she signed the plea agreement voluntarily with the advice of her attorney.
See Lay v. State, 933 N.E.2d 38 (Ind. Ct. App. 2010)
• [W]e conclude that the marital privilege is more limited than the privileges attaching to communications to attorneys, physicians, and clerics. The marital privilege prevents a court from requiring a spouse to testify as to confidential marital communications, but does not bar the spouse from testifying if the spouse chooses to do so.
Glover v. State, 836 N.E.2d 414, 422 (Ind. 2005)
• The defendant's testimony about communications he made to his wife waived any violation of marital privilege that may have occurred when the defendant's wife gave an unresponsive answer about a statement the defendant made indicating that he was in trouble when he arrived home shortly after the alleged rape.
See Taylor v. State, 567 N.E.2d 98, 102 (Ind. 1991)
Divorce
• [A]s long as a communication is made within the course of a marriage, divorce does not subsequently remove the privilege.
Bergner v. State, 397 N.E.2d 1012, 1019 (Ind. Ct. App. 1979)
• Inculpatory statements made between ex-spouses after their relationship has been terminated by divorce do not fall within the husband-wife privilege. Inculpatory statements made by the defendant's divorced wife therefore were not privileged even though she and the defendant were living together with a possible eye toward reconciliation.
See Damrell v. State, 352 N.E.2d 855, 857 (Ind. Ct. App. 1976)
Interpretation of “communications”
• Further, “communications” are not limited to written or spoken words; acts may also be included. When determining whether a particular act is protected by the marital privilege, it is important to ascertain whether the communicating spouse intended to convey a message to the other.
Hazelwood v. State, 609 N.E.2d 10, 15 (Ind. Ct. App. 1993) (some quotation marks omitted)
Testimonial privilege
• The spousal testimonial privilege is not recognized under Indiana state law.
State v. Roach, 669 N.E.2d 1009, 1010 (Ind. Ct. App. 1996)
Spouse victim
• In a criminal case where one of the spouses is the victim or injured party, the spousal privilege does not apply.
See Von Donk v. State, 676 N.E.2d 349, 351 (Ind. Ct. App. 1997)
• In that vein, a wife victim could not claim spousal testimonial privilege to avoid testifying against her husband in a misdemeanor battery prosecution.
See State v. Roach, 669 N.E.2d 1009 (Ind. Ct. App. 1996)
Criminal activities
• The privilege as to communications between spouses cannot be removed by a testifying spouse over the objection of the defendant merely by accusing the defendant as an accomplice.
See Shepherd v. State, 277 N.E.2d 165, 167 (Ind. 1971)
• The communication that the defendant [husband] claims to be privileged was a threat to do violence to her [wife] if she disclosed what she knew of his criminal actions. Such communications do not enhance the mutual trust and confidence of the marital relationship that the privilege is intended to protect.
Rubalcada v. State, 731 N.E.2d 1015, 1022 (Ind. 2000)
• The “fruit of the poisonous tree doctrine” did not require the exclusion of evidence obtained as a result of the conversation protected by statutory spousal privilege. While the conversation could not be used in evidence, because it was surreptitiously recorded and monitored by police and because the defendant-husband did not waive the privilege, there was no Fourth Amendment violation in the form of police misconduct in recording the conversation with the wife's consent, and thus no poisonous tree from which fruit could grow.
See State v. Farber, 677 N.E.2d 1111 (Ind. Ct. App. 1997)
Coercion
• The trial court's permitting the State to force the inmate's wife to testify as to the wife's and the inmate's jail escape plan was reversible error, despite the State's contention that the plan was not confidential because the second inmate was supposed to receive hidden hacksaw blades, since the State did not establish that the second inmate knew of the escape plan.
See Leonard v. State, 537 N.E.2d 480 (Ind. 1989)
• Where, as here, a wife's testimony concerns disclosures by the husband not made in reliance upon the marital *800 relationship but made because the defendant husband was in need of his wife's assistance and coerced her by force and fear, her testimony is admissible.
Rode v. State, 524 N.E.2d 797, 799-800 (Ind. Ct. App. 1988)
Third parties
• Letters sent by the defendant in prison to his wife were properly admitted notwithstanding the defendant's argument that they were confidential communications and thus privileged, where the wife had shown letters to her sister and the letters communicated a plan to smuggle marijuana into prison, lending reasonable inference that information was to be conveyed to other parties to conspiracy.
See Perkins v. State, 483 N.E.2d 1379 (Ind. 1985)
• Communications are privileged when they are between husband and wife and are intended to be confidential by reason of the marital relationship. If, however, the communication is intended to be transmitted to a third person, there is no privilege because the communication is not confidential.
Solomon v. State, 439 N.E.2d 570, 574 (Ind. 1982)
• Notwithstanding any issue of waiver, the defendant's argument must fail for the simple reason that the testimony at trial was restricted to acts and communications made to the wife in the presence of third persons. Thus, such acts and communications were not protected by the privilege.
Kindred v. State, 540 N.E.2d 1161, 1169 (Ind. 1989)
Threats
• In a prosecution of a husband for murder, this section relating to privileged communications between husband and wife did not preclude the wife from testifying that, because the husband threatened her with bodily harm, she had originally told police that the defendant's gun had fired when the victim hit it and that, in fact, the defendant had shot the victim as other witnesses had said he did.
See Carlyle v. State, 428 N.E.2d 10 (Ind. 1981)
Grant of immunity
• The grant of immunity to the defendant after he was subpoenaed by the State to testify against his wife in her trial for second-degree murder was not improper on the ground that the testimony sought to be compelled would have been protected by the marital privilege. The marital privilege rested with the defendant's wife as the subject of the prosecution and not with defendant, and even in the event that the defendant's wife asserted the privilege, it would have been irrelevant to the consideration of immunity.
See Worthington v. State, 391 N.E.2d 1164 (Ind. Ct. App. 1979)