Privileges and Immunities
As I've mentioned before, doing this blog is somewhat of a humbling experience, because I'm constantly reminded of how much I don't know. I got another reminder of that last week, when one of the lawyers here walks into my office and tells me that he's got a case where the prosecution wants to call his client's wife to testify that the defendant gave her a forged check. "Can she testify about that?" he asks.
My first instinct is to tell him she can, because as I recall Ohio's rule prohibits a spouse from testifying only if the spouse doesn't want to. In fact, that's what the prosecutor and a couple of other lawyers hanging around at the last pretrial had told him. "That doesn't sound right, though," he complained to me. "What about the marital privilege?"
If you're thinking, "Isn't that what we were talking about?" the answer is no, it's not. Turns out there are two separate concepts at work here: spousal privilege and spousal competency. Spousal competency is governed by Evidence Rule 601(B); it provides generally that all witnesses are deemed competent, then makes several exceptions, one of them being a spouse testifying against the other unless it involves a crime against the testifying spouse or any of the children, or if the spouse elects to testify.
Well, that takes care of that, right? Wrong. There's also the concept of spousal privilege, which is provided by Revised Code 2945.42. (The statute also provides for a definition of competency, but that's superseded by Rule 601). As you can see, the privilege extends to communications and acts between the spouses: neither spouse can testify about them unless a third party witnesses them. Of course, there's also the exception for crimes committed by one spouse against the other, or the children of either.
The case that does the best job of explaining all this is the Ohio Supreme Court's decision in State v. Adamson. That case represented the flip side of my friend's situation: the wife could testify about the husband's acts (killing someone) because there were other people present, but the conviction was reversed because the court never explained to her that she could refuse to testify under 601(B).
While the concepts of privilege and competency do overlap to a degree, the overlap is by no means complete. If the parties are no longer married, the ex-spouse is certainly competent to testify, but the privilege still applies: she can't testify to any acts or communications that occurred during the marriage. On the other hand, the privilege only keeps her from testifying to certain things; competency keeps her from testifying at all if she doesn't want to. And the privilege only applies to those acts or communications that occurred during the marriage; the competency rule prevents a spouse from testifying about anything, even if it occurred prior to the marriage.
So, armed with this information, my friend went off to do battle with the Forces of Darkness, and wound up getting a nolle. The interesting part of this story is that he didn't find out that the witness was his client's wife until his client casually mentioned it a day or two before the trial. So from now on I guess I'll go over the state's witness with my client, name by name, to make sure he's not married to any of them.