Filed: May 03, 2018
Latest Update: May 03, 2018
Summary: MEMORANDUM OPINION AND ORDER JAMES O. BROWNING , District Judge . THIS MATTER comes before the Court on the Motion to Exclude Testimony of Yvonne Madrid Pursuant to Federal Rule of Evidence 501 and the Marital Communications Privilege, filed April 30, 2018 (Doc. 2188)("Motion"). In the Motion, Defendant Christopher Chavez argues that Yvonne Madrid, Chavez' "former spouse and current common-law spouse," is "prohibited from disclosing, by testimony or otherwise, any private marital communic
Summary: MEMORANDUM OPINION AND ORDER JAMES O. BROWNING , District Judge . THIS MATTER comes before the Court on the Motion to Exclude Testimony of Yvonne Madrid Pursuant to Federal Rule of Evidence 501 and the Marital Communications Privilege, filed April 30, 2018 (Doc. 2188)("Motion"). In the Motion, Defendant Christopher Chavez argues that Yvonne Madrid, Chavez' "former spouse and current common-law spouse," is "prohibited from disclosing, by testimony or otherwise, any private marital communica..
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MEMORANDUM OPINION AND ORDER
JAMES O. BROWNING, District Judge.
THIS MATTER comes before the Court on the Motion to Exclude Testimony of Yvonne Madrid Pursuant to Federal Rule of Evidence 501 and the Marital Communications Privilege, filed April 30, 2018 (Doc. 2188)("Motion"). In the Motion, Defendant Christopher Chavez argues that Yvonne Madrid, Chavez' "former spouse and current common-law spouse," is "prohibited from disclosing, by testimony or otherwise, any private marital communications between" Chavez and her during their marriage. Motion at 1-2.1 It follows, according to Chavez, that "any proffered testimony by Yvonne Madrid should first be subjected to inquiry and examination to determine when and during what time frame such communications were had with Defendant Christopher Chavez" to determine whether those communications occurred during their marriage. Motion at 3.
Federal law recognizes two marital privileges:
The adverse testimonial privilege prohibits testimony by one spouse against another in criminal cases; it is designed to protect marital harmony at the time the testimony is demanded and to protect a witness from the difficult choice of incriminating a spouse or going to jail for contempt. The confidential communications privilege prohibits disclosure, in civil and criminal cases, of confidential communications from one spouse to another; it is designed to protect and further marital intimacy as of the time the communication is made between the spouses. Stephen A. Saltzburg et al., Federal Rules of Evidence Manual § 501.02[8] (11th ed. 2017). The adverse testimonial privilege does not prevent one spouse from voluntarily testifying against the other, however. See Trammel v. United States, 445 U.S. 40, 53 (1980). The adverse testimonial privilege ends when the marriage ends. See United States v. Bahe, 128 F.3d 1440, 1442 (10th Cir. 1997)(stating that the adverse testimonial privilege "permits one spouse to decline to testify against the other during the marriage"). See also Saltzburg et al., supra § 501.02[8] ("The adverse testimonial privilege does not apply if the witness and litigant are divorced or permanently separated at the time of the testimony.").
In contrast, the confidential communications privilege persists after a marriage ends, and either spouse can invoke the confidential communications privilege. See United States v. Bahe, 128 F.3d at 1442 (stating that "either spouse may assert" the confidential communications privilege "to prevent the other from testifying to confidential communications made during the marriage"). That privilege does not apply "whenever a communication, because of its nature or the circumstances under which it was made, was obviously not intended to be confidential." Wolfe v. United States, 291 U.S. 7, 14 (1934). While "marital communications are presumptively confidential," Blau v. United States, 340 U.S. 332, 333 (1951), if "made in the presence of a third party, such communications are usually regarded as not privileged because not made in confidence," Wolfe v. United States, 291 U.S. at 14.
Chavez and Madrid are no longer married, see Motion at 1 (stating that Madrid is Chavez' "former spouse"), so the adverse testimonial privilege does not apply, see Motion at 2 ("[C]learly Yvonne Madrid cannot be compelled to testify against Defendant Christopher Chavez, if they were still in fact formally married."). If, however, Chavez made statements to Madrid while they were married and those communications were confidential, the confidential communications privilege would probably protect those communications. See United States v. Bahe, 128 F.3d at 1446 (acknowledging that a "marital communications privilege for spousal testimony" exists, but establishing an exception for communications "relating to the abuse of a minor child within the household"). Communications that Chavez made to Madrid that were not confidential — such as prison telephone calls2 or conversations where third parties were present — are not privileged. Likewise, communications that Chavez or Madrid made before their marriage began or after it ended are not privileged.
Chavez does not direct the Court to any particular communications, so the Court cannot now make any particularized privilege determinations. The Court accordingly denies the Motion to the extent that it seeks to exclude Madrid's testimony. The Court grants, however, the Motion to the extent that it asks the Court, once Madrid takes the stand, to make determinations regarding whether the marital communications privilege applies to her testimony.
IT IS ORDERED that the Motion to Exclude Testimony of Yvonne Madrid Pursuant to Federal Rule of Evidence 501 and the Marital Communications Privilege, filed April 30, 2018 (Doc. 2188), is granted in part and denied in part.
