The Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248 § 214 (signed into law on July 27, 2006) directed the Standing Committee on Rules of Practice and Procedure to ‛study the necessity and desirability of amending the Federal Rules of Evidence to provide that the confidential marital communications privilege and the adverse spousal privilege shall be inapplicable in any Federal proceeding in which a spouse is charged with a crime against— (1) a child of either spouse; or (2) a child under the custody or control of either spouse.“ Such a rule, if enacted, would codify the common law exception to marital privilege for cases involving a crime against a child under the care of one of the spouses. Because it is a privilege rule, it could be adopted only by affirmative Congressional legislation, pursuant to 28 U.S.C. § 2074(b).

Professor Daniel J. Capra of Fordham Law School, Reporter to the Evidence Rules Committee, advises that this legislative mandate was an apparent response to the lone federal case that failed to recognize this exception, United States v. Jarvison, 409 F.3d 1221 (10th Cir. 2005). Numerous decisions (including decisions in the Tenth Circuit) recognize and enforce it. Professor Capra observes that, in general, amendments to the Evidence Rules have been proposed only when at least one of three criteria is found:

(1) there is a split in the circuits about the meaning of the Rule, and that split has existed for such a long time that it appears that the Supreme Court will not rectify it;

(2) the existing rule is simply unworkable for courts and litigants; or

(3) the rule is subject to an unconstitutional application

Following substantial study, the Evidence Rules Committee is expected to consider the proposal for amendment at its next meeting on April 12, 2007. It would be surprising to me were the Committee not to advise Congress against any codification along the lines suggested. The proposed rule does not appear to be necessary or desirable because, among many other reasons, the existing split among the circuits over the harm to child exception is not deep, wide, or longstanding; the issue arises infrequently in Federal courts; and the dispute is not one in which courts on both sides have reached a considered resolution after reasonable argument.