On January 6, 2014, the First Circuit Court of Appeals in United States v. Breton narrowed the scope of the marital communications privilege.

 

The Federal case against Royce Breton, a Sanford , Maine resident, began in April 2010. Several state and local law enforcement officers went to Breton’s home with whom he shared with his then-wife, Amanda Paradis and their young daughter. Breton, a nuclear electronics supervisor and a pre-medical student, was the target of a computer hacking crime.

 

The officers arrived at the Breton residence unannounced in the early afternoon of April 16. With his wife at work, Breton admitted the officers and responded courteously to their questions about the computer hacking crime. The officers requested, and Breton acquiesced to their request, that they be allowed to take all the computers in the residence for “further investigation.” Breton gave up two computers but did not give the officers a laptop he had concealed in the basement.

 

When his wife arrived home from work that evening, Breton told about the officers’ visit, their investigation, his relinquishment of the computers, and his concealment of the laptop in the basement. Paradis was alarmed, believing the officers would return and blame her for concealing the laptop. She immediately left their residence with their daughter and moved in with her parents, taking the laptop with her. Ten days later she contacted the police, telling them they could retrieve the laptop at her workplace.

 

When Breton learned about this development, he became extremely distraught and angry, telling Paradis she had “screwed everything up” and “he was going to go to jail and lose his job.” In a subsequent text message, Breton told Paradis he should have shot her.

 

A forensic examination of the laptop revealed extensive files containing child pornography and evidence that Breton had shared the files with others. Some of the pornography involved their young daughter who was identified by Paradis.

 

Based on this investigation, Breton was arrested and subsequently indicted for three counts involving child pornography. Before Breton’s trial, which began on May 8, 2012, the Government moved in limine to admit Paradis’s testimony regarding the statements her husband made to her when he learned she had turned the laptop over to the police and the subsequent threatening text message. Breton opposed the motion on the marital communications privilege. The judge denied Breton’s efforts to exclude the communications, citing the exception of an offense against a child of either spouse.

 

A jury on May 12 convicted Breton on all three counts. Following a sentencing hearing on October 12, the district judge sentenced Breton to concurrent prison terms: 340 months for production of child pornography; 120 months for possession of child pornography; and 240 months for distribution of child pornography.

 

On appeal Breton argued the statements/text message made to his wife were privileged because they were made in confidence. The First Circuit pointed out that in a Federal criminal case, common law recognizes two related but distinct marital privileges: 1) the spousal testimony privilege which allows one spouse to refuse to testify against the other in a criminal proceeding; and 2) the marital communications privilege “which permits a defendant to refuse to testify, and allows a defendant to bar his spouse or former spouse from testifying, as to any confidential communications made during their marriage.”

 

The marital communications privilege is not as sweeping as many believe. The Seventh Circuit has said this privilege exists to promote marital harmony and stability by ensuring that “spouses … feel free to communicate their deepest feelings to each other without fear of eventual exposure in a court of law.” As long ago as 1934, the U.S. Supreme Court said that the protection of private marital communications is “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.”

 

This concern for the sanctity of marital communications, however, does not make it “limitless,” as the First Circuit noted. Through the years Federal and state courts have carved out a significant exception to the privilege; namely, when one spouse commits an offense against the other, such as domestic violence, the marital relationship is harmed and the purpose of the privilege is thwarted.

 

The First Circuit observed that two sister circuits, the Ninth and Eighth, have expanded this exception to include an offense against a child of other spouse. The Tenth Circuit has expanded the exception even more by saying it covers offenses against a child-relative visiting in the home. The remaining circuits have not addressed the child or child-relative expansion issue. The First Circuit broke with these circuits in the Breton case and elected to follow the lead of the Eighth and Ninth Circuits. The appeals court explained why:

 

“First, a crime against a spouse’s child, like a crime against a spouse, profanes the deep bond of trust and love between marital partners and disrupts family harmony. Such an offense is irreconcilable with the primary purposes of the marital communications privilege: to promote unity and stability.

 

“Second, there is frequently greater-than-usual need for parental testimony in prosecutions for crimes against children. Tragically and perversely, child abuse occurs most often in the home at the hands of a parent or parent-substitute, Testimony regarding confidential marital communications may constitute critical evidence in such cases.

 

“Third, like all privileges, the marital privileges hamper the truth-seeking process and must be interpreted narrowly.

 

“Finally, there is an overwhelming state legislative and judicial authority for the proposition that a crime against a spouse’s child renders the marital communications privilege inapplicable. Indeed, of the five state and territorial jurisdictions comprising the First Circuit, it appears that none would uphold a claim of the marital communications privilege in cases involving a crime against a spouse’s child.”

 

Significantly, however, the First Circuit left open of whether the child exception should apply to a child who is not the natural child of both spouses. The appeals court pointed out that neither the Federal nor the state courts have reached a consensus on this issue. We suspect that the First Circuit, and ultimately the rest of the circuits, will follow the lead of the Tenth Circuit’s decision to apply the child exception to a visiting child relative. If the exception applies to a natural child of the spouses, as well as to a visiting child relative, it logically follows that the exception would apply to an adopted child of the spouses as well as to a child of one spouse conceived in relationship outside the current marriage.