18. The defendant objects to his wife's testimony. Should the testimony be admitted?

A defendant has been charged with making a false statement to a federally insured financial institution to secure a loan. At trial, the prosecutor calls the defendant's wife as a willing witness to testify that the defendant told her in confidence that he had misrepresented his assets on the loan application.

No, because even though the wife is a willing witness, the defendant has the right to exclude confidential marital communications in federal court
No, but only if the law of the state where the defendant and his wife reside recognizes a privilege for confidential marital communications
Yes, because in federal court the right not to testify belongs to the testifying spouse, and she is a willing witness
Yes, because while the adverse testimonial privilege is recognized in federal court, the marital communications privilege is not

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In any civil or criminal case, either spouse, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication made between the spouses while they were married. The rationale is to encourage open communication and trust between spouses. Both spouses jointly hold this privilege, and either can refuse to disclose the communication or prevent any other person from disclosing the confidential communication.

The communication must be made during a valid marriage. Divorce will not terminate the privilege retroactively, but communications after divorce are not privileged. The communication must be made in reliance upon the intimacy of the marital relationship. Routine exchanges of a business nature, abusive language, and misconduct directed to the spouse are not privileged. If the communication was made in the known presence of a stranger, it is not privileged. The confidential communication need not be spoken but may be made by conduct intended as a communication.

A is correct. The marital privilege applies here, which means that the defendant, as one of the spouses, may properly invoke it and bar his wife's testimony. All of the elements of the marital privilege are satisfied: the testimony contains confidential communication that was between the spouses, it occurred during the marriage, and it was made in reliance upon the intimacy of the marital relationship (the facts state that «the defendant told her in confidence»).

B is incorrect. This answer reaches the correct answer with the wrong reasoning. Although it is true that individual jurisdictions may make the distinction of which spouse «holds» the privilege and may, therefore, assert it, there is no indication here of any applicable state law. In jurisdictions that do make a distinction, the spouse who holds the privilege may waive it and testify against the other spouse. However, absent such a given rule, the federal rule should be applied.

C is incorrect. This is an incorrect statement of the law. Under the federal marital communications privilege, both spouses, the husband and the wife, jointly hold the privilege. Therefore, either spouse can invoke the privilege to bar the other from testifying as to the marital communications.

D is incorrect. This is also an incorrect statement of the law. The Federal Rules of Evidence and the federal courts recognize the marital communications privilege, and it properly applies in this case, as explained above.

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18. The defendant objects to his wife's testimony. Should the testimony be admitted?

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