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Comments on Criminal Issues
November 8, 2008
CAN ONE SPOUSE BE MADE TO TESTIFY AGAINST THE OTHER?
The Spousal Privilege in Criminal Cases
By: Houston Criminal Defense Attorney John Floyd and Mr. Billy Sinclair
A potential client of the John T. Floyd Law Firm recently asked if his wife could be compelled to give testimony against him concerning possible criminal conduct. Like any answer to most legal questions, our answer to the potential client was “depends upon the circumstances.”
The United States Supreme Court in 1934 held that “The basis of the immunity given to communications between husband and wife is the protection of marital confidences, regarded as so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administration of justice which the privilege entails.” Wolfe v. United States, 291 U.S. 7, 14 (1934).
Five years ago prosecutors in Pacific County, Washington found themselves confronted with a “classic” husband and wife privilege situation. Tracy Johnson, a reporter with the Seattle Post-Intelligencer, wrote in a January 2005 story that David and Michelle Knotek lived in a “little red farmhouse” in rural Raymond, Washington. The couple had a 19-year-old nephew and two “boarders” living with them. All three eventually turned up missing. The Knotek’s daughters, reported Johnson, had “disjointed memories” of their parents beating the nephew and the boarders about the head, forcing them to take medication, and making them do outdoor chores in the extreme cold without any clothes on.
Prosecutors began talking to the daughters after the body of one of the boarders turned up in the Knoteks’ back yard. Forensic experts could not determine a cause of death and blood found in the Knoteks’ farmhouse could not be identified. The bodies of the nephew and other boarder were never found.
Prosecutors knew they had a triple homicide on their hands. But they also feared that they could not prove first degree murder in a courtroom because neither David nor Michelle Knotek could be compelled to testify against the other.
“[This] was a classic case where the husband saw the acts of the wife, the wife saw the acts of the husband, and everyone knew we couldn’t use the testimony of either one of them,” Assistant Attorney General Brian Moran told the Post-Intelligencer.
Prosecutors were forced to make a deal. They reduced the charges to second degree murder and manslaughter to get the Knoteks to plead guilty. Michelle Knotek received a 22-year prison term for second degree murder and manslaughter while David Knotek got a 15-year term of second degree murder.
Pacific County prosecutor David Burke was not pleased with the outcome of the case. He said the State probably could have secured a first degree murder conviction had the prosecution been able to get one of them to testify against the other.
“Spousal privilege, the way the law reads right now, certainly inhibited our ability [in this case],” Burke said.
In Texas, there are two marital privileges: the confidential communication privilege, TRE 504(a), and the privilege not to testify in a criminal case, TRE 504(b).
The State of Texas, in Tex. R. Crim. Evid. 504(a)(1), defines the husband-wife privilege as a “communication” that “is confidential if it is made privately by any person to the person’s spouse and it is not intended for disclosure to any other person.” The privilege “may be claimed by the person or the person’s guardian or representative, or by the spouse on the person’s behalf.” § 504(a)(3). The following are exceptions to the privilege under § 504(a)(4):
- (A) The privilege may not be claimed, in whole or part, if the communication was made to enable or aid anyone to commit or plan to commit a crime or fraud.
- (C) The privilege may not be claimed in a proceeding in which the party is accused of conduct which, if proved, is a crime against the person of the spouse, any minor child, or any member of the household of either spouse, or, in a criminal proceeding when the offense charged is bigamy.
Most importantly, § 504(b) (1) provides that the spouse of an accused in a criminal case has a privilege not to be called as a witness for the state. It is the spouse called to testify that must raise this privilege, not the accused spouse. But this rule does not prohibit a spouse from testifying voluntarily for the state, even over the objection of the defendant-spouse. It should also be pointed out that a spouse who testifies for a defendant-spouse is subject to cross examination by the prosecution as provided by Tex. R.Crim. Evid. 611(b).
Clearly, the husband and wife privilege does not provide the high degree of protection over shared spousal communications as many lay persons believe. For example, § 504(b)(2) permits the prosecution to comment on the failure of the defendant to call his/her spouse as a witness when the evidence indicates that the spouse could have testified about relevant matters. And § 504(b)(3) provides that the “privilege not to testify may be claimed by the person or the person’s guardian or representative” but not by that person’s spouse.
Texas courts have also upheld the rule adopted by many other states that the “husband and wife” privilege does not prohibit a spouse from voluntarily testifying for the State. See: Fuller v. State, 858 S.W.2d 528 (Tex.App.-Eastland 1993).
In yet another restrictive case, the court in Davis v. State, 2005 Tex.App. 712 (Tex.App.-Fort Worth Jan. 27, 2005) confronted the “husband-wife privilege” in case where a police officer was allowed to testify about similar statements made by the defendant-husband to his wife and his mother incriminating himself in a criminal offense. These statements were repeated to the officer by these wife and mother during the initial discovery and investigation of the offense. Id., at LEXIS 11. The issue before the court was whether the statement made to the mother automatically waived the husband and wife privilege. The court began its analysis with a discussion of the evidentiary purpose of the privilege:
“While, arguably, the primary purpose of the rules of evidence is to exclude unreliable evidence, privileges exist to serve [other] purpose[s] … The privilege rules do, however, have their limitations, as is evidenced by Texas Rule of Evidence 511. Applicable to all of the privileges provided for in the Texas Rules of Evidence, it states, ‘A person upon whom these rules confer a privilege against disclosure waives the privilege if: (1) the person . . . voluntarily discloses or consents to disclosure of any significant part of the privileged matter . . . .’ TEX. R. EVID. 511(1). Thus, disclosure of ‘any significant part’ of the privileged material waives the privilege. See Terrell State Hosp. of Tex. Dep't of Mental Health & Mental Retardation v. Ashworth, 794 S.W.2d 937, 940 (Tex. App.--Dallas 1990, orig. proceeding).
”We first examine whether Appellant's statement to his mother constitutes a significant part of his allegedly privileged communication to Sapien (appellant’s wife).
“Appellant's mother testified to the following:
Q: [Prosecutor] When your son called you, what was he calling you about?
A: [Ms. Davis] He called me and told me that--he said, Mom, there is a body in my living room. He said, I think I've killed someone . . . .
“Officer Born testified to the following statement by Sapien:
Q: [Prosecutor] What did Rebecca Sapien tell you about why you were called out there?
A: [Officer Born] She said that her husband had come home and told her he had killed a woman and she was inside his apartment.
”Appellant argues that these two statements are entirely different. He argues that his statement, ‘I think I have killed someone,’ is more passive in nature than his statement to Sapien, ‘I killed a woman.’ Appellant argues that his statement to Sapien ‘is an affirmative statement that he killed a woman. It gets the gender right and assumes responsibility for the death affirmatively, not speculatively.’ Concerning his statement to his mother, Appellant asserts
that he assumed that he might be responsible for the death since he was alone in the house with the body. He did not affirmatively say, 'I killed someone,' in the sense that he was certain of that fact, but rather that he assumed he might have killed someone from the circumstantial evidence that confronted him.
”The State contends that Appellant's two statements are similar enough to result in a waiver of the husband-wife privilege. The State argues that it is the subject matter of the statements that is important and not the fact that Appellant first stated that he killed ‘someone’ and then later stated that he killed ‘a woman.’ The State asserts, ‘The similarities in the statements far outweigh the differences and are such that there is virtually no room for confusion regarding the subject matter of the communication.’
”We agree with the State. We hold that the two statements made by Appellant are similar enough to result in a waiver of the husband-wife privilege concerning Appellant's statement to Sapien that he killed a woman. The ‘significant part’ of Appellant's statement to Sapien, which he also disclosed to his mother, is the admission that he killed a person and that the person's body was in his apartment. Because Appellant communicated a ‘significant part’ of the statement that he made to his wife to a third party--his mother, Ms. Davis--he waived application of the husband wife privilege to his statement to Sapien. See TEX. R. EVID. 511(1). We hold that the trial court did not abuse its discretion when it admitted Officer Born's testimony concerning Appellant's statement to Sapien.” Id., at LEXIS 13-15.
In a somewhat similar case, the appeals court in Capps v. State, 244 S.W.3d 520 (Tex.App.-Fort Worth 2007) found that there had been a valid waiver of the husband and wife privilege in jailhouse telephone conversations between defendant and his wife because defendant-husband had been given adequate notice that such conversations were being recorded by jail officials.
Against this backdrop, it is only natural that the courts would find that conversations between a husband and wife which are overheard by a third party lose their confidential protection as well. See: Dodson v. State, 2006 Tex.App. LEXIS 5530 (Tex.App.-Houston [14th Dist.] June 29, 2006) [conversation among husband, wife, and wife’s boyfriend on tape recording, even though there was no indication on the tape that boyfriend overheard the conversation between husband and wife]. See also: Weaver v. State, 855 S.W.2d 116, 121 (Tex.App.-Houston [14th Dist.] 1993, no. pet.).
Finally, the appeals court in Cavazos v. State, 2007 Tex.App. LEXIS 2049 (Tex.App.-Corpus Christi March 15, 2007) found there was no § 504 violation in a case where wife voluntarily testified for State about the contents of letters written to her by her husband from jail following his arrest for murder. Id., at LEXIS 18.
While the husband and wife privilege remains a fixture in the American legal system, it is not as sweeping as many believe. Virtually every rule of evidence has exceptions that have been carved out by legislatures and judicial opinions over the years. The husband and wife privilege, whose origins emanated from a time laws considered a wife the “property” of the husband, have evolved to reflect a changing society. That is the true nature of the law – an inherent ability to evolve to keep pace with a changing society.
For criminal defense attorneys it is important to know that if the testifying spouse does not claim the privilege, it is waived. Therefore, it is vitally important that the spouse called by the State to testify against the accused understand the privilege and how to claim it properly.
By: Houston Criminal Defense Attorney John Floyd and Mr. Billy Sinclair