Commercial Litigation and Arbitration

Marital Communications and Attorney-Client Privileges — Waiver by Failing to Object to Pretrial Testimony — Waiver Need Not Be Knowing, Voluntary and Intentional, Just “Voluntary”

United States v. Brock, 2013 U.S. App. LEXIS 15574 (7th Cir. July 30, 2013):

A. The Marital Communications Privilege

The marital communications privilege covers "information privately disclosed between husband and wife in the confidence of the marital relationship . . . ." Trammel v. United States, 445 U.S. 40, 51 (1980); Blau v. United States, 340 U.S. 332, 333 (1951). The marital communications privilege belongs to both spouses, so either spouse may invoke the privilege to avoid testifying or to prevent the other from testifying about the privileged communication. See United States v. Lea, 249 F.3d 632, 641 (7th Cir. 2001). The marital communications privilege exists "to ensure that spouses . . . feel free to communicate their deepest feelings to each other without fear of eventual exposure in a court of law." United States v. Lofton, 957 F.2d 476, 477 (7th Cir. 1992), quoting Byrd, 750 F.2d at 590. The marital communications privilege applies even after the marriage has dissolved, but the protected subject matter includes only what one spouse communicates to the other, not what one spouse learns about the other in other ways, such as by observing the other's actions. See Lofton, 957 F.2d at 477. In Mr. Brock's trial, the marital communications privilege could have applied to Mrs. Brock's testimony that he told her to take two guns from their home and put them in a car. It would not have applied to her testimony about Mr. Brock handling the guns or shooting possums.

The district court found that both Mr. and Mrs. Brock had waived this privilege when Mrs. Brock testified without objection in the detention hearing that he had told her to move two guns from the house to the car. We agree. As with other privileges governing communications, such as the attorney-client privilege, an unprivileged disclosure amounts to a waiver.

In developing the federal law of privilege, other circuits have affirmed findings of implied waiver of the marital communications privilege when the witness-spouse testified to marital confidences in a pretrial proceeding and the party-spouse failed to object. See Morganroth & Morganroth v. DeLorean, 123 F.3d 374, 383 (6th Cir. 1997) (party-spouse's failure to object to witness-spouse's deposition testimony about confidential communications waived the marital communications privilege for trial as to those statements); United States v. Dien, 609 F.2d 1038, 1043-44 (2d Cir. 1979) (defendant-spouse waived marital communications privilege by failing to object to wife's testimony at suppression hearing); see also Feldman v. Allstate Ins. Co., 322 F.3d 660, 667-69 (9th Cir. 2003) (deposition testimony about privileged conversations waived the confidential marital communications privilege for trial) (applying California law of evidence in diversity case).

Footnote 1 Numerous state court decisions are in agreement. See, e.g., Northern RR. Co. v. Hood, 802 P.2d 458, 465 (Colo. 1990) (failure of husband's attorney to object at deposition to wife's testimony about conversations with husband waived marital communications privilege).

These decisions are consistent with the more frequently litigated issue of waiver of the attorney-client privilege in pretrial proceedings. See, e.g., Hawkins v. Staples, 148 F.3d 379, 384 (4th Cir. 1998) (deposition testimony about confidential conversation with lawyer waived attorney-client privilege); United States v. Billmyer, 57 F.3d 31, 36-37 (1st Cir. 1995) (disclosure of confidential communications to government investigators waived attorney-client privilege for criminal trial); United States v. Suarez, 820 F.2d 1158, 1160 (11th Cir. 1987) (defendant's testimony at hearing to withdraw guilty plea about confidential conversation with attorney waived attorney-client privilege as to subject for trial).

Footnote 2. See also 8 Wigmore on Evidence § 2328 at 638-39 (McNaughton rev. 1961) ("A waiver [of attorney-client privilege] at one stage of a trial should be final for all further stages, and a waiver at a first trial should suffice as a waiver for a later trial, since there is no longer any reason for preserving secrecy."); Edna Selan Epstein, The Attorney-Client Privilege and the Work-Product Doctrine 299 (4th ed. 2001) ("Failure to make an adequate or timely objection to disclosure either in responding to interrogatories, giving testimony in depositions or in producing documents may well be fatal to any successful assertion of the privileged matter at trial. . . . Likewise, disclosure in court effects a waiver." ).

Mr. Brock contends that his wife's pretrial testimony did not waive the privilege because the waiver could not have been "knowing, voluntary, and intentional." Appellant's Br. at 46, citing In re Pebsworth, 705 F.2d 261, 262 (7th Cir. 1983) (finding waiver of state-law psychotherapist-patient privilege under this more stringent standard, without expressly deciding whether that standard or a less stringent standard should apply). While waiver of certain constitutional rights must be "knowing, voluntary, and intelligent," see, e.g., Iowa v. Tovar, 541 U.S. 77, 88 (2004) (right to counsel); Illinois v. Allen, 397 U.S. 337, 343 (1970) (right to be present at trial); Boykin v. Alabama, 395 U.S. 238, 243 n.5 (1969) (guilty plea), this standard generally does not apply to common law privileges protecting confidential communications. See generally 26A Charles Alan Wright et al., Federal Practice and Procedure § 5726 (1st ed.) (discussing waiver standards but indicating rule might be different for spousal testimony).

We conclude that a waiver of the marital communications privilege must be "voluntary" only in the sense that the holder must realize that the once-confidential communication is being revealed. "But if the holder intends to disclose the privileged material, [even] 'without realizing the impact' of the disclosure on the privilege, then there is a waiver." Id. § 5726; see United States v. Rakes, 136 F.3d 1, 5 (1st Cir. 1998) (finding no waiver of marital communications privilege, but stating: "Ordinarily, deliberate disclosure of a privileged communication, where no privilege protects this further disclosure, waives a communications privilege. . . . The restriction is one of public policy, and applies regardless of the privilege holder's subjective intent.") (citations omitted). "There can be no disclosure of that which is already known, for when a secret is out, it is out for all time, and cannot be caught again like a bird, and put back in its cage." People v. Bloom, 85 N.E. 824, 826 (N.Y. 1908).

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