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Abstract:
The marital privilege has two parts: the testimonial privilege and the communications privilege. Originally, the testimonial privilege prevented one spouse from testifying against another. According to the United States Supreme Court, spousal disqualification sprang from two canons of medieval jurisprudence: first, the rule that an accused was not permitted to testify in his own behalf because of his interest in the proceeding; second, the concept that husband and wife were one, and that since the woman had no recognized separate legal existence, the husband was that one. Thus, if a husband were not permitted to testify, then his wife, as a part of the husband, likewise should not be permitted to testify.
In 1933, the United States Supreme Court abolished the rule disqualifying spouses from testifying in federal court on each other's behalf; however, a privilege remained that prevented either spouse from providing adverse testimony against the other. The rationale for the testimonial privilege is its role in protecting marital harmony and the sanctity of the marital relationship. This Article takes a fresh and innovative look at whether the marital communication privilege should protect communications between husband and wife sent via electronic means.
Traditionally, the marital communications privilege is destroyed when a third party, without the knowledge or involvement of the recipient-spouse, intentionally or inadvertently discovers the communication. In the context of electronic communication, where Internet Service Providers (ISPs) have access to otherwise confidential communications, the marital communications privilege may not apply at all. Indeed, it is possible to argue that the marital communications privilege is inherently at odds with this form of communication.
This Article has two purposes. First, it explores whether the marital communications privilege currently protects e-mail communication and whether the privilege should protect such communication. Second, it addresses whether the marital communications privilege should continue to exist, considering the traditional purposes of the privilege. Part II of the Article discusses the history of the marital communications privilege. Part III explores the details of e-mail storage and addresses constitutional and statutory provisions outside the context of the marital communications privilege that provide some privacy protection for electronic communications. Part IV takes a critical look at whether the marital communications privilege applies to electronic communication based on more traditional applications of the privilege and highlights three legislative solutions that have been put in place to protect privileged communications made electronically. Part V discusses whether courts should reconsider the marital communications privilege as a whole considering the stated purposes of the privilege.
marital communication, electronic mail, e-mail, spouse, spousal, privilege, testimonial privilege, communication privilege, spousal disqualification, husband, wife, internet, Internet Service Provider, confidential, confidential communication, privacy, electronic communication, informational privacy
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Abstract:
In 2006, the Advisory Committee on Evidence Rules surprised many scholars when it amended Federal Rule of Evidence 408 concerning the admissibility of offers of compromise. Prior to its amendment, Rule 408 generally prohibited the admissibility of statements made during settlement talks when offered to prove or disprove liability. The newly amended Rule 408 creates an exception for statements made to government officials during settlement talks when the official is acting in a civil capacity.
The drafters of the new Rule 408 believe that statements made to private litigants during settlement talks deserve greater protection than statements made to government officials in the same context. More importantly, this new amendment creates an inconspicuous trap awaiting any person who is the subject of a civil investigation by a governmental body. Even where a defendant successfully settles a civil dispute with the government, any admissions of fault made during those settlement talks can become the basis for a later criminal proceeding.
This Article demonstrates that the drafters erred when they decided to hinge the admissibility of evidence upon the presence or non-presence of the government. It discusses the history of Rule 408 as well as the circuit split that precipitated amendment of the rule. It further addresses the many situations in which the government may act in both a criminal and civil capacity; and discusses the safeguards, if any, that protect an individual or corporation facing both criminal and civil liability at the hands of the government. It addresses whether a settlement communications privilege might provide adequate protection to defendants facing simultaneous civil and criminal liability and also proposes a solution that protects the rights of individuals who seek to cooperate with civil governmental investigations while allowing for the admissibility of relevant evidence. It concludes that without a reversal of the new rule, negotiations between government agencies and defendants will suffer. The only defendants who will be willing to engage in open and frank discussions with the government will be those defendants ignorant of the amendment who do not realize their exposure to criminal liability. If nothing else, the proposed warning places all parties on equal footing regarding the impact of their negotiations. Although the proposed warning leaves defendants without a safety net, it alerts them of the net's absence before they leap.
Federal Rules of Evidence, Evidence, Rule 408, Offer of compromise, Admissibility, Admissions, Statements to government officials, Settlement communications privilege
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