In this episode of "I Strenuously Object" Attorney Bill Rogel goes solo to explain the ups and downs of the laws surrounding what a husband, wife, boyfriend, girlfriend or fiancé can or can not say about you in court.
Bill breaks down the difference between 1. Confidential Communication and 2. Spousal Testimonial Privilege and the exceptions to the rules may surprise you.
(00:00.558)
Please rise, court is now in session. I strenuously object.A legal podcast brought to you by the Pittsburgh law firm of Flaherty Fardo isnow in session. All those seeking information about the law and legal mattersaffecting the people of Pittsburgh and the Commonwealth of Pennsylvania, half-baked opinions and a dose of self -indulgence are invited to attend andparticipate. I want the truth! You can't handle the truth! The defensestrenuously objects. You would!
All right, hello, greetings and welcome once again to Istrenuously object. It's a Pittsburgh legal podcast. My name is Bill Rogel andI'm an attorney and a partner with the law firm Flaherty Fardo Rogel and Amickand I'm here by myself today. Noah is not joining us, but I will try to soldierthrough and I'll try to spare you too much monotonous droning on the part of myown voice.
I would like to speak a little bit today, talk about theidea of spousal privilege. Some of you out there may have heard of kind of thisterm or understand the concept a little bit, right? I can't think of specificexamples offhand, but there are definitely movies or television propertieswhere, you know, a criminal defendant gets married so that the person that theymarry is no longer able to testify against them, those kinds of things. Andspousal privilege is real, is a real thing. Now I'm going to mostly talk aboutit in a civil as opposed to criminal context today.
Because that's what I do. On the other hand, you know, thereare parallel rules that cover spousal privilege in the criminal world. They'rea little bit different, you know, so I'm certainly not—nothing I say is legaladvice here today. Anyway, we've got to have a disclaimer of some kind.
(01:43.757)
you know, a frankly more misogynistic time, where generallyit was, you know, there were some issues with recognizing the full personhoodof a wife, you know, and her ability to act as an independent agent and factwitness. And it's been criticized accordingly, right? That, you know, your wifeshould be allowed to speak against you if she wants to speak against you, andyou're not supposed to be able to cordon this off. She's not your property. Youdon't get to talk to her and say what you want and then have her...
Bang! Zoom! And those criticisms are fair and have kind ofcircumscribed the privilege a little bit, but it still exists. It's still real.And of course, it works both ways or always now, right? It is the spouse,right? Your husband or your wife is not allowed to testify against you orconfidential communications made within that. So while the history of it maynot be particularly egalitarian, it does apply equally in these regards. OK.
Again, two privileges. One of them is confidentialcommunication. One of them is spousal testimonial privilege. I'll handle themin that order. So confidential communications, it's kind of like otherprivileges you may know about, whether it's an attorney -client privilege orpriest and penitent privilege. Tell me your sins, my son. Well, I shouldmention that I'm Jewish. That's no sin. Things that you say under certaincircumstances, the person you say them to is not allowed to disclose thosethings.
statements you make for psychiatric care are often protectedin the same way. There's a lot more to it than that. There are lots of placeswhere from a public policy perspective, the ability to communicate within aparticular kind of relationship is sufficiently important that it actuallytrumps our desire and our policy in figuring out the truth in a civil case. Andthat's certainly the case with...
Some of the best evidence you could theoretically findbecause a person's being honest are things they say in these kind ofconfidential contexts where they think what they say can't be used againstthem. But we want people to be able to do that. We want husbands and wives tobe able to all speak, spouses to talk to each other and not worry that thething I tell my spouse at night will someday be used against me in a court oflaw. And so, confidential communications that are made within the context of amarried couple are...
(04:07.149)
Privileged, protected from disclosure. It can be waived.Like any privilege, it can be waived. Things that you say to your spouse wherea third party can hear you are not going to be privileged because there areother ears there. You don't have a reasonable expectation of confidentiality.You've got big ears. Statements that are made to a romantic partner who is notyour spouse are not protected. You know, I do not have the same interest in thesame confidentiality in speaking to, you know, a boyfriend or a girlfriend, anex -spouse or, you know, anyone.
other than a communication that's made within the confinesof a legally recognized marriage. Again, there are other privileges, right? Soif my psychiatric provider is also my spouse, the fact that I'm not marrieddoesn't mean that I don't have some other privilege to invoke. But it isimportant to note that statements I make to my fiancee... I have lost myfiancee, the poor baby. Maybe the dingo ate your baby. ...statements I make tomy fiancee before I'm married to that person.
are not protected. The fact that I subsequently married themdoesn't go back in time to turn that into a protected, confidentialcommunication. Go back in time, okay? No going back in time. The other thing tonote is they can be relatively easily waived by either party. If a spouse wantsto testify about confidential communications that I made, I can't stop thatspouse, right? If I'm on trial and my wife wants to come into court and testifyabout a thing that I told her that has some bearing,
I do not have the legal right to stop her from speakingagainst me in that regard. So anyway, that spousal communications privilege,and it covers narrowly only confidential communications, things that I say. Sonot how I look. If I came home the day after an accident and I seemed shaken upor guilty, or if my spouse overhears me on the telephone and I tell someoneelse something, none of that stuff is covered by spousal communicationsprivilege because that wasn't me talking to my spouse.
My spouse is allowed to testify and can be asked to testifygenerally about non -communications and that can include gestures or emotionalreactions or facts, right? My spouse can testify. It's not spousalcommunication privilege for my spouse to say, oh yeah, like, you know, he hadthat car and then I saw him drive away and I never saw that car again. I don'tknow what he did with it. That's not a communication. So that's not protected.Now.
(06:28.621)
There is a second privilege, and that privilege is spousaltestimonial privilege. And the rule is written basically, a husband or a wifeis not competent to testify against the other. Period, full stop, right? Unlessit's waived. Against can do a lot of tricky legwork here. So we had a case, forexample, where we had filed a lawsuit against both a husband and a wife. Wewere allowed to depose the wife in her own case, right? She's a defendant. Iget to take her deposition.
The spouse doesn't get to stop me from taking her depositionjust because what she says could be harmful to this spouse. It's actually kindof interesting to think about that in terms of the unintended consequences ofthe rule of the spousal testimonial privilege, is it creates an incentive tosue both parties, both spouses, so that you can still hear from the one. Whodid this to me? Who can I sue? But this is one where...
Honestly, I'm not sure. I've encountered some attorneys whoI don't think recognize that there are these two different privileges and thatthey apply differently, you know, but generally speaking, if say I'm thedefendant in a lawsuit and someone sues me, even if it's only to talk aboutsimple facts, what time did he leave the house that day? What time did he comehome? How did he seem when he came home? Have you seen this knife before?Whether it's criminal or a civil perspective, you know, stabbing someone is alawsuit too.
You just don't usually get stabbed by someone rich enough tosue them. Hey, easy with that. That's my lucky stabbing hat. Say your husbandcomes home or your wife and they're covered in blood, splattered with blood,and they say, I don't want to talk about it. And they go clean up. They nevermention a thing to you. This? No, no. I was at a costume party earlier thisevening. You find out the next day that your neighbor was stabbed, eitherinjured or to death, doesn't really matter, but they were attacked by someonewith a knife.
You have not had a conversation with your spouse about thisthing. Does spousal privilege still apply here? Well, yeah. I mean, so andthat's and that's why I want to stress there are two different privileges thatis not covered by spousal communication privilege because it's not acommunication. It may still be covered by spousal testimonial privilege wherethe other side simply cannot call you as a witness at all. Any of these factswhich are not covered, clearly not covered by spousal communication privilege.
(08:49.485)
Nevertheless, the other side cannot call my spouse totestify against me, even about facts that have nothing to do with any kind ofconfidential communications. Just not allowed to call my wife as a witnessagainst me, period, full stop. Now again, against can be a little bit tricky. Ithink the best reading is, well, look, first, the other side cannot call themas a witness. If I'm not volunteering them as a witness, if you're callingthem, that's against me, right? That's a hostile witness kind of situation.
I can file a motion for protective order to stop it. So thespousal confidential communication privilege applies at the time of theconfidential communications, right? So if I spoke to someone who is my wifebefore we were married, those communications aren't privileged. If I spoke tothem while we were married, but we've since divorced,
I had the expectation at the time I made thosecommunications that they were privileged and so it's still protected. I'm amanufacturer, I'm not a dealer per se. No, it's not. Spousal testimonialprivilege is different in that what matters is at the moment they're called asa witness, are they your spouse? So if I made communications with my fiance andthen got married and were still married, while communication privilege won'tapply,
Testimonial privilege will and you can't talk to my wifeanyway. Now if we get divorced subsequently, then I have no protectionwhatsoever. Communication privilege will still apply to any communications thatwere made while we were still married, but spousal testimonial privilege doesnot apply to anyone other than someone who is currently at the moment they'rebeing called as a witness your spouse. And again, both these privileges can bewaived and frequently are, right? And a lot of personal injury actions, we wantto talk to the spouse.
We want to hear from your husband and wife about how yourlife was changed and what it was like when you were in the hospital and whatyour recovery was like when you got home. Even today, all of the difficultiesthat they still see you facing day to day. We don't want to invoke privilegeand keep that testimony out. We want to hear that testimony. And so we don'tinvoke spousal testimonial privilege.
(11:03.789)
we may or may not decide to still try to protect withrespect to spousal communications. It's kind of a case by case thing. So, Imean, in that context, you're often gonna wanna hear from a spouse, buttheoretically, you know, if you don't want your spouse to testify against you,you do have the ability to invoke that privilege and try to stop it. Now, inmost of these cases, and this is the thing I do wanna close on, I don't wannaspeak out of turn. I haven't researched this issue like all the way down to thebottom of the depths, right? I could be wrong. I'm sorry, what?
Don't use that against me later. So my wife's gonna save aclip of that and just play it at me again and again and again, right? I couldbe wrong. I could be wrong. I could be wrong. Generally speaking, both spouseshave to want the protection of the privilege for the protection to apply. Ican't stop my wife from speaking about confidential communications. I can'tstop my wife from choosing to come in and testify against me. Shut up! Shut up!
And this may not have been the way it was as it developed atcommon law, right? But now recognizing that, and there's a bunch of exceptionsthat are baked into the rule anyway, a lot of family law contexts, right? Whereobviously a spouse is able to testify, the testimonial privilege does not applyin PFA situations or child support or custody discussions and those sorts ofthings. There's a lot of family law contexts where obviously the ability for anabuser,
to use the privilege to cover up and protect themselves fromaccountability for their abuse. It could be used and the law has mostly triedto back away from that and make sure that can't be the case. Never say never.I'm sure there are still some particular times where it can kind of frustratethat purpose. But generally speaking, like any other testimonial privilege orany other communication privilege, if someone goes out and blabs to theneighbor about the thing,
Privileges wave now. Like it's no longer confidential. Ifyou make a statement that you think is confidential, you have to trust theperson you're speaking to. Do you trust your wife? Oh, that's funny. Thatthey're going to keep it confidential because once they go out and starttalking about the thing that you said, confidentiality isn't going to applyanyway. In the context of attorneys or, you know, psychiatrists, there arerules of professional conduct that also step in to tell them, hey, you're notallowed to go.
(13:29.549)
tell someone else this thing that was said to you inconfidence. In the world of spousal privilege, it's not a thing. It's notillegal for my spouse to go out and betray that confidence by talking to herfriends, her family, strangers, opposing counsel, whoever she wants to talk toabout what confidential communication I said. The privilege can be waived evenif I, as the defendant, want to protect it. Sorry, if my spouse has alreadywaived it by saying the thing, you know, that horse is out of the barn.
toothpaste is out of the tube or cats out of the bag.There's lots of things that escape that we can't put back in that becomemetaphors and all of them apply here. So, all right. Thank you for joining uson this episode of I Trenuously Object. Please subscribe, rate, review thepodcast. It helps other people find us, which is hopefully a thing we can wantto happen. Tell your friends, check us out. If you have any questions formailing it in the segment or any other feedback.
We have a podcast specific email address. That's at thataddress is I object at PGH firm comm we're on Instagram at I strenuously objectpodcast for any Legal information or questions that you may have visit thewebsite our website flirty fartas website at PGH firm comm Until next time someparting advice. I mean, what are you thinking about Jerry marriage family?Well?
The prisons! Man -made prisons! You're doing time! You getup in the morning, she's there! You go to sleep at night, she's there! Yeah,and you can forget about watching TV while you're eating. Because it's dinnertime. And you know what you do at dinner? What? You talk about your day. Howwas your day today? Did you have a good day today or a bad day today? Well,what kind of day was it? Well, I don't know, how about you? How was your day?Look, it's sad, Jerry.
It's a sad state of affairs. I'm glad we had this time. Oh,you have no idea!