Two Privileges Protecting the Husband-Wife Relationship: Confidential Communications and Refusal to Testify in Criminal Proceedings
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
As we pointed out in a 2008 post, there are two marital/spousal privileges in Texas: the confidential communication privilege as defined by Rule 504(a) and the privilege not to testify in a criminal trial as defined by Rule 504(b) of the Texas Rules of Evidence.
Rule 504(a)(1) defines the spousal privilege as a “communication” which 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, which may be claimed “by the person or the person’s guardian or representative, or by the spouse on the person’s behalf,” with two exceptions as defined by Rule 504(a)(4): 1) 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; and 2) 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.
The spousal privilege has a long history in Texas in both case law and statutory law. In 1911, Article 794 of the Code of Civil Procedure defined the spousal privilege as follows:
“Neither husband nor wife shall, in any case, testify as to communications made one to the other, while married; nor shall they, after the marriage relation ceases be made witnesses as to any such communication made while the marriage relation subsisted except in a crime where one or the other is prosecuted for an offense; and a declaration or communication made by the wife to the husband, or by the husband to the wife, goes to extenuate or justify an offense for which either is on trial.”
In a criminal context, the privilege was more explicit as spelled out in Article 795: “The husband and wife may, in a criminal action, be witnesses in a criminal prosecution for an offense committed by one against the other.”
The significant difference in these two statutes is that Art. 794 qualified the privilege by granting the privilege to the spouse to exclude communications between the spouses, necessitating the need to claim the privilege for it to be effective, while Art. 795 created an absolute privilege that prevented one spouse from giving adverse testimony against the other.
These two privilege-statutes tracked almost verbatim with the privilege in previous Code of Criminal Procedure dating back to 1881. Then, in 1925, the Code of Criminal Procedure, through Article 714, blended together Arts. 794 and 795. As with all the former statutes, a husband/wife could be witnesses for each other, but in “no case” could they testify against the other, except in a prosecution for an offense “committed by one against the other.” The fundamental principle that a wife could not testify against her husband (a husband testifying against a wife garnered little or no interest in the formation of the privilege) took hold and firmly rooted itself in Texas jurisprudence. This privilege could not be waived; and, in fact, even if the husband gave his consent for his wife to testify, she was considered an “incompetent witness.”
And, again, in 1965, the Code of Criminal Procedure was revised wherein Art. 714 became Art. 38.11, which provided:
“Neither husband nor wife shall, in any case, testify as to communications made by one to the other while married. Neither husband nor wife shall, in any case, after the marriage relation ceases, be made witnesses as to any such communication made while the marriage relation existed except in a case where one or the other is on trial for an offense and a declaration or communication made by the wife to the husband or by husband to the wife goes to extenuate or justify the offense. The husband and wife may, in all criminal actions, be witnesses for each other, but except as hereinafter provided, they shall in no case testify against each other in a criminal prosecution. However, a wife or husband my voluntarily testify against each other in any case for an offense involving any grade of assault or violence omitted by one against the other or against any child of either under sixteen years of age, or in any case where either is charged with incest of a child of either, or in any case where either is charged with an offense defined in Chapter Three of the Penal Code pertaining to wife or child desertion or willful failure or refusal to support his or her children.”
Clearly the social seminal awareness in the mid-1960s of the physical and sexual abuse of children in the family was the primary motive for the Legislature making the spouse a “competent witnesses” in cases involving 1) assault or violence committed against a child under sixteen; 2) incest of a child; and 3) wife/child desertion and refusal to support the child. Concern for the family also influenced lawmakers change the Art. 714 language “they shall in no case testify against each other in a criminal prosecution for an offense committed by one against the other” into the Art. 38.11 language that the husband/wife “shall in no case testify against the other in a criminal prosecution committed by one against the other” except in the aforementioned circumstances. This prompted lawmakers (all men) to qualify the historical license husbands had enjoyed to do pretty much as they pleased to their wives by saying either spouse could “voluntarily testify against each other in any case involving any grade of assault or violence committed by one against the other.”
The Legislature in 1973 amended Art. 38.11 to bar the privilege “in any case where either [spouse] is charged with bigamy, or in any case where either is charged with interference with child custody …”
It should be noted the Texas Court of Criminal Appeals carved out a different jurisprudential standard between a “ceremonial spouse” and a “common-law spouse.” The Court, in Burns v. State, held it was an automatic “reversible error” in a criminal case to even call a “ceremonial spouse” to the witness stand while, in Hightower v. State, before a “common-law spouse” could be prevented from testifying, the judge or jury had to determine that a common-law marriage in fact existed, and that it was specific to both parties. This forced the defendant to present evidence that the parties had “an agreement presently to become man and wife, a living together pursuant to the agreement and cohabitation as husband and wife, and hold out of each other to the public as husband and wife.” This created a small channel for the barge to navigate.
If the State called a common-law wife to testify against her husband, the Court in Criminal Appeals, in Krzesinki v. State, said the husband had to present “some evidence” of the foregoing elements of common-law marriage before the jury after which the issue was submitted to the jury with instructions as to those elements. And if the jury found those elements existed, then they had to disregard the testimony of the common-law wife per the trial judge’s instructions.
Then in 1980 the United States Supreme Court handed down Trammel v. United Statesin which it held that the common-law spousal privilege applied only to the witness spouse who could either be compelled to testify or be foreclosed from testifying. Significantly, Trammel dealt only with court-made privileges and did not deal with the privilege recognized in eight states, including Texas, by statutes. Nonetheless, Trammel clearly reflected that both the courts and state legislatures recognized the need to reform and modernize the “husband-wife testimonial privilege.”
Texas made this step in 1986 when the new Texas Rules of Evidence became effective with Rule 504 replacing Art. 38.11. The Court of Criminal Appeals promptly decided Freeman v. State in which in which it held that Rule 504 “does not prohibit the spouse from testifying voluntarily for the state, even over objections of the accused.”
There is still a simmering debate in this country as to whether the spousal privilege should be completely discarded as archaic. We are not prepared to go that far. We support the premise that the privilege should not protect the criminal abuse of either spouse or their family. But we also believe in the sanctity of private communications between spouses—and those communications should not be disclosed, either voluntarily or through compulsion.
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization