Family Law News Issue 3, 2020, Volume 42, No. 3
- Best Practices for Responding to a Request for Production of Documents
- Children Supporting Themselves? How Sparring Parties in Support Disputes Seek to Use the Family Code to Bypass Trust Protections for Beneficiaries
- Family Law News Editorial Team
- Family Law Section Executive Committee
- Legislative Liaisons and Designated Recipients of Legislation
- Message from the Chair
- Message from the Editor
- Pandemic Provisions - Do Force Majeure Clauses Have a Place in Custody and Visitation Agreements?
- Protecting Your Client's Right to Recover Attorney Fees/Costs
- Table of Contents
- The Few and Varying Published Decisions on the Presumption of Undue Influence
- What's Mine Is Mine, What's Ours Is Ours, and What's Yours Is Ours: the Extension of Watts Charges to Separate Property
- Whither the Spousal Privilege
Whither the Spousal Privilege
Steven Berenson serves as Senior Counsel with Klinedinst, P.C. in San Diego. His areas of practice include legal malpractice defense, state bar discipline, judicial discipline, legal ethics advising, family law and general civil litigation. Before joining Klinedinst, Berenson spent more than two decades as a full time law professor, teaching in areas including legal ethics and family law. Berenson founded and directed the Thomas Jefferson Veterans Legal Assistance Clinic from 2006-2019.
Some form of spousal privilege is one of the longest standing evidentiary privileges recognized by courts. Its origins date back to feudal England.1 However, spousal privileges have been in a state of flux in recent decades, and courts and commentators have questioned the contemporary viability of this privilege. Indeed, last year, New Mexico became the first state to abolish the privilege for confidential marital communications. In State v. Gutierrez,2 the defendant sought to prevent two former spouses of his from testifying regarding admissions he made to them about a homicide the defendant committed. The New Mexico Supreme Court concluded that prospectively it would no longer recognize the privilege for confidential spousal communications. The court also found that any error created by consideration of the former spouses’ testimony at trial was harmless and sustained the defendant’s conviction.
As the court noted, the spousal privilege has evolved over time, and different jurisdictions often apply confusingly inconsistent terminology.3 For the sake of clarity, the spousal privilege is best broken down into a disqualification for spousal testimony and a privilege rendering confidential communications between spouses inadmissible.4 Historically, pursuant to the spousal disqualification, either spouse could prevent the other spouse from testifying in a case involving the first spouse.5