Exceptions to the Marital Privilege
G.L. c. 273 Section 7 creates one exception to this rule. There, the Massachusetts legislature provided that in cases involving proof of marriage or proof of parenthood both spouses are required to testify if called as a witness.
Another exception involves spouses testifying before a grand jury. The district attorney is permitted to call the spouse of the accused and compel that person to testify at that proceeding. That testimony does not create a waiver of the privilege for subsequent proceedings. In other words, if the case does get indicted the testifying spouse can invoke the marital privilege at trial. So, while the testimony adduced before the grand jury might assist in securing an indictment it should have no effect on the evidence used at trial.
Cases involving child abuse, incest and sexual misconduct relating to children also override this privilege. If a spouse has information relevant to a criminal charge involving one of these crimes that spouse cannot claim the privilege. The prosecutor can compel this person to testify. There is however the Fifth Amendment privilege that if applicable to these cases still protects you from having to testify absent a grant of immunity.
Waiver of the Marital Privilege
A recent Massachusetts Supreme Judicial Court case discussed an interesting issue regarding waiver of the martial privilege. This decision emphasized that a waiver such as this must be made clearly and voluntarily with a full understanding of what in fact is being waived.
In Commonwealth v. Garcia, a 2016 case, the defendant was tried for raping his nineteen-year-old stepdaughter. One evening, the defendant entered the victim’s room and crawled into bed with her. She awoke with his finger in her vagina. According to the district attorney the defendant later told his wife (the victim’s mother) that given the late hour he had mistaken the victim for her. In a conversation with the victim, and in an attempt to excuse the defendant’s actions, the wife told the victim what the defendant had said. The wife later denied that the defendant ever said this to her.
At trial the case was defended on the theory that the victim had hostility towards the defendant for not permitting her to live with him and his wife. Furthermore, according to the defense, the victim had falsely accused Garcia of impregnating her in the past.
The defense attorney asked the judge to permit the wife to testify about the victim’s motive. The prosecutor asked for permission for the victim to testify about the conversation with her mother during which the defendant allegedly confessed his mistake. After conducting a “voir dire” with the wife, both requests were permitted. During the “voir dire” the trial judge told the wife her marital privilege permitted her not “to testify as to conversations with” Garcia. The Supreme Judicial Court ruled that this was an inaccurate statement of the law regarding marital privilege, which correctly holds “she was not obligated to testify at all”. The absence of a colloquy and an improper explanation of the law suggested that the waiver of the marital privilege was not made voluntarily. This prompted the Court to reverse the conviction.
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