201601.05
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Camille Cosby – Will She Be Forced to Testify Against Her Husband

spousal privilege image cosby

In light of the accusations against Bill Cosby, I have had several people ask me, will his wife have to testify against him? I thought there was a privilege between husband and wife?

The answer is not quite as simple as “yes” or “no” as to whether or not a privilege exists and whether or not Ms. Cosby will be forced to attend and give her deposition in the civil case against Bill Cosby.

Lets unpack this. First, you have to know what jurisdiction you are in to know what privileges apply, if any. You must know in which state the proceeding takes place and whether or not the lawsuit in question is in federal court or state court.

In state court in Texas, Rule 504 of the Texas Rules of Evidence defines spousal privileges in two categories (1) confidential communication privilege; and (2) testimonial privilege.

The confidential communication privilege states as follows:

(a) Confidential Communication Privilege.

(1) Definition. A communication is “confidential” if a person makes it privately to the person’s spouse and does not intend its disclosure to any other person.

(2) General Rule. A person has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made to the person’s spouse while they were married. This privilege survives termination of the marriage.

(3) Who May Claim. The privilege may be claimed by:

(A) the communicating spouse;

(B) the guardian of a communicating spouse who is incompetent; or

(C) the personal representative of a communicating spouse who is deceased.

 The other spouse may claim the privilege on the communicating spouse’s behalf–and is presumed to have authority to do so.

(4) Exceptions. This privilege does not apply:

(A) Furtherance of Crime or Fraud. If the communication is made–wholly or partially–to enable or aid anyone to commit or plan to commit a crime or fraud.

(B) Proceeding Between Spouse and Other Spouse or Claimant Through Deceased Spouse. In a civil proceeding:

(i) brought by or on behalf of one spouse against the other; or

(ii) between a surviving spouse and a person claiming through the deceased spouse.

(C) Crime Against Family, Spouse, Household Member, or Minor Child. In a:

(i) proceeding in which a party is accused of conduct that, if proved, is a crime against the person of the other spouse, any member of the household of either spouse, or any minor child; or

(ii) criminal proceeding involving a charge of bigamy under Section 25.01 of the Penal Code.

(D) Commitment or Similar Proceeding. In a proceeding to commit either spouse or otherwise to place the spouse or the spouse’s property under another’s control because of a mental or physical condition.

(E) Proceeding to Establish Competence. In a proceeding brought by or on behalf of either spouse to establish competence.

What does this all mean and what is the purpose? The confidential communication privilege is an attempt to respect the privacy of communications in a marital relationship. This privilege applies to communications between spouses, this does not apply to what a spouse may have overheard or actions he or she may have witnessed. Further, there must be the intent between spouses that the communication be confidential. This is a fact question that must be determined by the Judge in the proceeding. If the spouse overheard the communication, this would not fall under this privilege because it is not communication between the party and his or her spouse.

If you are going through a divorce, do not think that this privilege will protect you because spouses in a divorce proceeding fall under the exception to the privilege listed section 4(B) above. It is also important to understand that the above mentioned privilege applies in both civil and criminal cases.

In criminal proceedings there is an additional privilege that applies, the testimonial privilege. Section 504 of the Texas Rules of Evidence states as follows:

(b) Privilege Not to Testify in a Criminal Case.

(1) General Rule. In a criminal case, an accused’s spouse has a privilege not to be called to testify for the state. But this rule neither prohibits a spouse from testifying voluntarily for the state nor gives a spouse a privilege to refuse to be called to testify for the accused.

(2) Failure to Call Spouse. If other evidence indicates that the accused’s spouse could testify to relevant matters, an accused’s failure to call the spouse to testify is a proper subject of comment by counsel.

(3) Who May Claim. The privilege not to testify may be claimed by the accused’s spouse or the spouse’s guardian or representative, but not by the accused.

(4) Exceptions. This privilege does not apply:

(A) Certain Criminal Proceedings. In a criminal proceeding in which a spouse is charged with:

(i) a crime against the other spouse, any member of the household of either spouse, or any minor child; or

(ii) bigamy under Section 25.01 of the Penal Code.

(B) Matters That Occurred Before the Marriage. If the spouse is called to testify about matters that occurred before the marriage.

The testimonial privilege mentioned above prevents a spouse from being compelled by the State to testify in a criminal proceeding in which their spouse is the accused, unless the victim is the spouse or a member of either spouse’s household, or a minor. As a practical matter, if this privilege is invoked, this may not necessarily be in the defendant’s favor because it can lead the jury to speculate as to why that particular spouse did not testify and why it was necessary to invoke the privilege.

For more information on the spousal privilege, feel free to contact me.