exception to spousall privelege?
mm
her purse, is that an exception to spousal privelege?
Can he testify about it?
Can he authorize the homeowners insurance company, which has a picture
of it, to provide a picture for court?
Do they need him to get the insurance company to provide the picture?
Can't they just subpoena the insurance company?
These questions relate to the plot of Law & Order tonight.
Gene E. Utterback, EA, RFC, ABA
"mm" <mm2...@bigfoot.com> wrote in message
news:hfee25t1ss75jm2n0...@4ax.com...
> If a man sees his wife remove a necklace from the safe and put in in
> her purse, is that an exception to spousal privelege?
>
IANAL so I would appreciate some clarity on this issue (in general).
It is my understanding that there are two types of spousal privilege and one
spouse controls one while the other spouse controls the second. Let me
elaborate on what my understanding is -
There is pillow talk - what one spouse says to another under the confidence
of marriage. If I say to my wife "I was drunk last night and ran over and
killed your brother on my way home" this was said under the confidence of
marriage and the right of privilege belongs to ME. I can for my wife from
disclosing this information to the authorities.
There is witnessed behavior - what one spouse SEES the other do. On the
other hand, if my wife is in the car with me when I run over and kill her
brother, the right of privilege belongs to HER and she can choose whether to
disclose this to the authorities.
This is my understanding of how spousal privilege works, based on this
assumption and addressing your original issues -
Can he testify about it?
Yes, the privilege is his and he can do what ever he wants to.
Can he authorize the homeowners insurance company, which has a picture of
it, to provide a picture for court?
A picture of what for what purpose?
I'm sure he can get a copy of the picture of the necklace, especially if it
is his policy. But I doubt he can use that picture to perpetuate a fraud
against the insurance company. If he saw her take it, he cannot then file a
claim for insurance. If the court wants a picture of the necklace I'm sure
they can subpoena it directly.
Do they need him to get the insurance company to provide the picture?
Who is they, and again for what purpose?
Can't they just subpoena the insurance company?
They who? For what purpose?
I'm not trying to be difficult. I lurk here a LOT because I find the topics
and discussions fascinating. I have also noticed that many times people
write questions that make absolute sense to them, but to no one else. If
you provide a bit more info, I'm sure you'll get a decent enough answer.
Gene E. Utterback
D.F. Manno
mm <mm2...@bigfoot.com> wrote:
Spousal privilege consists of two different privileges: a spouse can not
be compelled to testify against the other spouse (not applicable here),
nor can a spouse be required to disclose confidential communications
between the spouses. Seeing one's wife remove a necklace from a safe and
putting it in her purse does not constitute a confidential communication
between the spouses, in my non-attorney opinion.
--
D.F. Manno | dfm...@mail.com
"When the fate of so many rests in the hands of so few, can the failure
to be accountable ever be forgiven?" - Stephen Hawking
Cy Pres
<ge...@alliancetax.com> wrote:
>There is pillow talk - what one spouse says to another under the confidence
>of marriage. If I say to my wife "I was drunk last night and ran over and
>killed your brother on my way home" this was said under the confidence of
>marriage and the right of privilege belongs to ME. I can for my wife from
>disclosing this information to the authorities.
Do you have any authority on this? I seriously doubt that she would
not be able to sue you for your killing of her brother, for financial
and non-financial damages, divorce you, and sue you in a divorce
action as well, and furthermore, testify in any of these actions as to
your adverse admissions. I think they'd even qualify under a hearsay
exemption.
mm
>On Jun 3, 11:07�pm, mm <mm2...@bigfoot.com> wrote:
>
>> If a man sees his wife remove a necklace from the safe and put in in
>> her purse, is that an exception to spousal privelege? �
>>
>> Can he testify about it? �
>
>That depends, in part, on who the defendant and the victim are.
The defendant was going to be the wife. She used the diamond necklace
to pay the actual killer. He sold the necklace to get cash and the
jeweler he sold it to doesn't have it anymore, but can identify it
from the picture the prosecution now plans to get from the insurance
company records. (There is no insurance claim planned for the missing
necklace.)
>
>> Can he authorize the homeowners insurance company, which has a picture
>> of it, to provide a picture for court?
>
>All I can say in this limited context is that spousal privileges do
>not generally prohibit the production of physical evidence.
>
>> Do they need him to get the insurance company to provide the picture?
>
>WHO are "they"?
The police, the prosecutor.
>> Can't they just subpoena the insurance company?
>
>WHO are "they"?
The police, the prosecutor.
Gene and D.F. bring up another question. I too thought that spousal
privelege meant a person can't be compelled to testify against his
spouse. But in this tv show, the husband had gone to law school but
not practiced and said that he thought he recalled oen of the
exceptions to spousal privelege was what he saw. He was eager to
cooperate with the prosecutor, because the D.A. had offered to drop
other charges against him if he cooperated**, so why is an exception
to spousal privelege needed if the husband can just voluteer to
provide physical evidence and testify anyhow?
And in other shows, the police are so clever, they themselves think to
get pictures of jewelry from the renter's insurance policy, but this
time they didn't think of it, and the DA agreed not to prosecute just
to get this information. (And then after the DA left, the assistant
DA threatened the same guy with prosecution after all, and got him to
resign from his job to avoid prosecution.)
**and he put himself ahead of his wife, and she him, which was part of
the plot, that they were both selfish. OTOH, in other episodes,
innocent people confess rather than let their guilty child or spoouse
go to jail. I guess the writers like to point to love vs selfishness.
Here, it seems like they were interested in wrapping up the plot
before the hour ended and not so interested in what the law actually
is.
I wonder if this has to do with which writers write which script. I
understand that Rod Serling wrote every script for The Twilight Zone,
which had a 36 week season iirc, and it wore him out. Maybe some of
the writers for L&O are more concerned than others with being correct
legally.
Thanks to all.
Stuart A. Bronstein
> Spousal privilege consists of two different privileges: a spouse
> can not be compelled to testify against the other spouse (not
> applicable here), nor can a spouse be required to disclose
> confidential communications between the spouses. Seeing one's wife
> remove a necklace from a safe and putting it in her purse does not
> constitute a confidential communication between the spouses, in my
> non-attorney opinion.
The spousal communication privilege is different from the two prongs of
the spousal testimonial privilege.
You're right about the first prong - a spouse cannot be compelled to
testify against the other spouse irrespective of the situation. A
husband who sees his wife take a necklace from a safe cannot be
compelled to testify against her, but can if he chooses.
The other prong is sometimes referred to as the "sit down and shut up"
rule - one spouse can prevent the other spouse from testifying against
him even if she wants to do so. This privilege has been declining in
popularity and doesn't exist at all any longer in some states.
Stu
Dick Adams
does it survive divorce?
Husband tells wife that he embezzeled $4 million from
his employer for the last ten years.
Can wife use this in a divorce proceeding?
In a post-divorce child support action?
In a post divorce criminal prosecution of the husband?
Dick
Daniel R.Reitman
Adams) wrote:
>Does spousal privilege apply in civil proceeding and
>does it survive divorce?
Depends on local variation. In Oregon:
Privilege for confidential communications applies in civil and
criminal proceedings. Or. Evid. Code 505(2) (Or. Rev. Stat. @
40.255(2)). Both spouses control this privilege in Oregon and either
may invoke it. Id.
Adversarial testimonial privilege applies only in criminal cases. Or.
Evid. Code 505(3). The witness spouse controls this privilege in
Oregon and may consent to testify over the objections of the defendant
spouse. Id.
I would have to double-check secondary sources whether the privilege
applies after divorce, but I would expect that it applies to
communications during the marriage, as the policy of the privilege is
to encourage frank communication between the spouses.
>Husband tells wife that he embezzeled $4 million from
>his employer for the last ten years.
>
>Can wife use this in a divorce proceeding?
>In a post-divorce child support action?
>In a post divorce criminal prosecution of the husband?
In Oregon, spousal privilege does not apply to civil proceedings
between the spouses. Or. Evid. Code 505(4)(c).
If the privilege survives divorce, it would apply. The only criminal
proceedings in which the privilege does not apply, are bigamy,
offenses against the person or property of the other spouse or a child
of the marriage, or offenses against the person or property of a third
party in the course of a crime or attempted crime against the person
or property of the other spouse. Or. Evid. Code 505(4)(a) (thereby
eliminating the privilege from domestic violence situations).
One caveat is that the privilege does not apply to premarital matters.
Or. Evid. Code 505(4)(b).
Daniel Reitman
FOR EDUCATIONAL PURPOSES ONLY. NO ATTORNEY-CLIENT RELATIONSHIP
INTENDED.
D.F. Manno
Cy Pres <c.p...@yahoo.com> wrote:
> Gene E. Utterback wrote:
>
> >There is pillow talk - what one spouse says to another under the confidence
> >of marriage. If I say to my wife "I was drunk last night and ran over and
> >killed your brother on my way home" this was said under the confidence of
> >marriage and the right of privilege belongs to ME. I can for my wife from
> >disclosing this information to the authorities.
>
> Do you have any authority on this? I seriously doubt that she would
> not be able to sue you for your killing of her brother, for financial
> and non-financial damages, divorce you, and sue you in a divorce
> action as well, and furthermore, testify in any of these actions as to
> your adverse admissions. I think they'd even qualify under a hearsay
> exemption.
It's a statement against penal interest, which is an exception to the
hearsay rule.