Legal Question in Criminal Law in California

Marital Confidential Communication Privledge & Written Evidence

In a case where a mass amount of personal documents were seized for review

of evidence from a Married couple, can the prosecution use written

communications they find in them between the husband and wife that were

communicated to each other in private with the intention of them remaining

private? So in other words, no Witness Stand testimonial of one spouse

against the other. But written communications like private emails shared

between them that were never intented for anyone else's eyes to see? On

password protected computers?

I know that there is a vague ''conspiracy''

exception. But it also states that:''The Sixth and the Eighth Circuits have ruled

that the conspiracy exception is limited to ''communications regarding

'patently illegal activity.'''''

So does that mean even if they charge the married couple with ''Conspiracy''

that the communications they submit as evidence need to state very clear and

unmistakable words related to illegal activity? And if the communication is

vague and amiguious and subject to interpertation and perception then it

doesn't meet the qualifications of prima facie evidence to be granted an

exception to the marital priviledge law?


Asked on 8/15/04, 3:34 am

1 Answer from Attorneys
Edward Hoffman Law Offices of Edward A. Hoffman

Re: Marital Confidential Communication Privledge & Written Evidence

Confidential communications between a husband and wife are privileged regardless of how the prosecution might be able to prove what was said. The privilege applies equally to written and oral communications, and it prevents the prosecutor from introducing either testimony or documents which reveal what the couple discussed. Whether a communication between husband and wife can be admitted depends upon its content and its context, not upon the method of communication.

As you note, the provilege has its limits, and these limits come into play in conspiracy cases. Chances are that some of the documents seized would be admissible and some would not. I don't know enough about this case to say what types of documents would fall into which category.

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Answered on 8/27/04, 7:20 pm


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