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CAN ONE SPOUSE BE MADE TO TESTIFY AGAINST THE OTHER?

Nov 08 2008
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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

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    Had the pleasure speaking with John Floyd on a personal matter, he was very responsive, nothing but exceptional, and he really cares about you with sincerity and most importantly knows … More what is he talking about! No games or bs, his approach to my situation even though I knew it was probably way smaller then what he normally takes on, he was extremely helpful and didn't care about the size of the matter like other attorneys do. He really looked out for my best interests. You can tell he has decades of experience doing what he does just by chatting with him. I would highly recommend him.
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    Words can’t describe how grateful I am for working with John, he went above and beyond my expectation. I was wrongly accused and hired many lawyers before hiring John Floyd but they … More all disappointed me, I had lost hope until a friend of mine referred me to John. From the start he had my best interest in mind and gave helpful advice, he explained the process and guided me. He put more work and time than all my previous lawyers that cost me thousands of dollars. He was constantly communicating with court and defended me more than all lawyer i had hired before him. Don’t waste your time and money like I did, believe me when I say I hired countless lawyers before him and no one came close to John. I’m forever thankful for him for fighting for my innocence and getting my case dismissed. Thank you so much🙏🏼🙏🏼
  • Avatar Gary Watch ★★★★★
    I called Mr Floyd and left a message, with in the hour I received a call back with much more information then I could have ever expected. Mr Floyd was very informative on every question … More I had for him. He seemed like he cared, instead of like most attorneys that you talk to that are just out for a quick buck. If you want someone that is going to shoot strait with you, and has your best interest in hand, this is you guy. This was the best experience that I have ever had with an lawyer.
  • Avatar Saman Daftarian ★★★★★
    I can state with confidence that Mr. Floyd and his team are the most competent and professional lawyers one can hope for. My case was quite complex and I admit that as a law student … More I was not the most patient client. Mr. Floyd did a phenomenal job of managing the bench, prosecution and myself! The result was above expectation, and I will never hesitate to recommend this firm regardless of the caliber of the case at issue.
  • Avatar calvin robinson ★★★★★
    It was a pleasure working with Mr. Floyd. I contacted him regarding a legal matter and he was extremely knowledgeable about the law, and responded in a timely manner. I appreciated … More the fact I did not feel rushed, and he made sure he thoroughly answered all questions I had. I would highly recommend him!Positive
    Responsiveness, Professionalism …More
  • Avatar Alan Howk ★★★★★
    Spoke with John Floyd about a 45 year old criminal case I was involved in. I had very little information about the case and John helped me search what records were available and gave … More me guidance to find more information. He was very professional and took his time helping me. I may need to hire a lawyer on this case and Mr. Floyd will be the man.Thanks John.
  • Avatar CMCustom Cycles ★★★★★
    Very professional and straight forward. He's not going to waste your time or money. Very knowledgeable in a large range of possible matters one could face living in these days … More and times. If ever you need legal assistance, this is who I would suggest. Awesome!Positive
    Responsiveness, Quality, Professionalism, Value …More
  • Avatar Greg Page ★★★★★
    I called about some legal questions I needed to get clarified and John was able to give me clarification and sound advice. I will definitely contact John for all future legal questions … More and issues.Thank you John!Positive
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  • Avatar Kristen Rankin ★★★★★
    Knows his stuff and well respected with DA and judges. I have referred him a couple times and every client has been satisfied
  • Avatar Kedar Puranik ★★★★★
    John is beyond knowledgeable! If I decide to pursue my case any further I would only have him represent me.
  • Avatar Joseph Sivadon ★★★★★
    What a great attorney, this guy really took time out of his day to answer my questions and explain my case to me. Very grateful, thank you so muchPositive
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  • Avatar Lex Strider ★★★★★
    Absolutely a very professional lawyer. Very well read in the current law and more than willing to help if needed.
  • Avatar karim khalifa ★★★★★
    Mr. John he’s a professional he knows what he’s doing and he’s patient they recommend Him stronglyPositive
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  • Avatar James Haggard ★★★★★
    Great service, very knowledgable and happy to help with any questions I had
  • Avatar David Sustaita ★★★★★
    Quick to action and helpful and knowledgeable with entertainment industry based issues!
  • Avatar Chad Groves ★★★★★
    Responded on a holiday week. Very knowledgeable and reassuring.
  • Avatar Mark Fein ★★★★★
    Very professional
  • Avatar Bthomason903 Bthomason903 ★★★★★
  • Avatar Anton Jasser ★★★★★
  • Avatar Alma Garza ★★★★★
  • Avatar Victory 2020 ★★★★★
    I want to thank John T. Floyd and all of his team. He is the best lawyer who cares aboutHis clients and fights really hard to get the best outcome. He is a fighter and he is awesome!!!I … More recommend if any one needs criminal defense , he is the BEST. We had a really serious caseAnd we are very thankful for the outcome. Thank you John!!!!! God bless you!!!!!!
  • Avatar Alma Garcia Cunningham ★★★★★
    The attorneys at John T. Floyd Law Firm work diligently to achieve the best possible results for their clients. They are caring and knowledgeable professionals. Their expertise in the … More law and their experience as trial attorneys makes them the right choice as a defense attorney. I recommend this law firm highly.
  • Avatar Rajiv Patel ★★★★★
    From beginning to end this firm handled my case like the top tier professionals they are. I would not trust ANYONE else with my legal needs after having less than stellar experiences … More with other teams. Thank you Floyd!!!
  • Avatar Jose Tapia ★★★★★
    I really felt like the team cared about my case and am super satisfied with the outcome. Would not recommend anyone else!
  • Avatar Sagar Patel ★★★★★
    These guys do amazing work and have phenomenal service! Hands down best in the Houston area!!
  • Avatar RAYNINN ★★★★★
    John and Chris are true professionals! Love those guys like family!
  • Avatar Virginia Martin ★★★★★
    Mr. Floyd and his team are very knowledgeable, informative, and helpful.
  • Avatar Darla Latham ★★★★★
    A team you can depend on to stand up and fight for you to prove the truth the whole truth!
  • Avatar Veronica Elorza ★★★★★
  • Avatar Karetta Lux ★★★★★
    Mr. John T. Floyd represented me.I couldn't be happier with the outcome he managed to achieve on an VERY Important case that was dismissed the day of Trial. He is patient & … More very knowledgeable of the legal system. I HIGHLY recommend him to anyone in need of a lawyer!John, I am forever grateful & satisfied with the effort you put forth & all you did for me. Thank you isn't enough!God bless you & your family!
  • Avatar GM ★★★★★
    The John T. Floyd Law Firm assisted me, and I can tell you that the attorney took the time to answer my questions, and I didn't feel rushed or dismissed as I have experienced in … More the past with attorneys. The attorney was very nice and extremely knowledgeable. Initial impressions and continued excellent customer service are big factors for me and as such I would highly recommend this firm.
  • Avatar Sandra Bivens ★★★★★
    I thank you for your efforts to help Felons regain their Civil rights, and for the information on possession , I am A convicted Felon, no violent history. I am an expert shot, I am … More 76 yoa, and very concerned about the present lake of Security in our State and Country. God Bless and Prosper you in your efforts, Your friend, Sonny Bivens
  • Avatar Mike Kittelson ★★★★★
    I really appreciated both Chris and John helping with my legal questions and concerns. Both are good guys and I would not hesitate to recommend them.
  • Avatar Robert Hair ★★★★★
    Extremely helpful!!! Helping me understand the law.

John T. Floyd is Board Certified in Criminal Law By the Texas Board of Legal Specialization

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