Commercial Litigation and Arbitration

Spousal Privileges and Exceptional Testimony

After being convicted and sentenced to more than 20 years imprisonment for drug trafficking, the defendant in Vo v. United States, 2007 U.S. Dist. LEXIS 47093 (D Haw. June 28, 2007), claimed ineffective assistance of counsel because his lawyer did not object to testimony from the defendant’s wife on grounds of marital privilege. The wife testified that her husband twice asked her to mail boxes from Honolulu to California, each bearing the same fictitious name as return addressee — boxes that he "handled in a manner to avoid leaving fingerprints“ and which she thought contained drugs, given his conversations with her at the time. District Judge Alan C. Kay summarized that federal common law recognizes two distinct marital privileges: (1) the right of a spouse to decline to testify against his or her spouse (Trammel v. United States, 445 U.S. 40, 53 (1980)), and (2) the marital communications privilege, which bars testimony concerning words or acts intended as communications that are privately communicated between spouses (In re Grand Jury Investigation of Hugle, 754 F.2d 863, 864 (9th Cir. 1985)). The Vo Court, however, relied on the "partnership in crime" exception to the marital communications privilege (United States v. Marashi, 913 F.2d 724, 731 (9th Cir. 1990)) -- somewhat akin to the crime/fraud exception to the attorney-client privilege -- because ‛the communications between [the defendant and his wife] were made in furtherance of joint criminal activity.“ Accordingly, the failure of defense counsel to object to the wife’s testimony ‛was not deficient and did not result in prejudice to“ the defendant.

Given that electronic spoliation may constitute the crime of obstruction of justice (In re Grand Jury Investigation, 445 F.3d 266 (3d Cir. 2006); see also our entry of June 27, 2007), and is known to have involved spouses from time to time (post of May 15, 2007), this opinion has civil utility.

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