By: Anthony Aceto
While the adoption and incorporation of new technology into judicial proceedings has been slow, it has nonetheless infrequently evolved to meet changing circumstances. Zoom hearings, eDiscovery, and service by electronic communication are all new developments which serve to expedite the judicial process and show that it is not only Luddites who control our courtrooms. Yet, there are many areas where the judicial system has declined to change with the times regarding technology’s effect on society.
An area where this phenomenon is particularly egregious is marital privilege. Specifically, the admission into evidence of electronic spousal communications. In an age where so much of our daily communication is conducted through electronic means (texts, email, direct messaging, etc.), one would expect such a long-recognized privilege to evolve along with it.
The Supreme Court of the United States has acknowledged the existence of marital privilege but has declined to articulate any specific rules which govern its application. The privilege is justified as a means to “encourage marital confidences, which confidences in turn promote harmony between husband and wife.” Yet despite this simple social impetus, the rule is subject to a bevy of loopholes on the Federal level, and outright blind spots on the state level, thus allowing text messages between spouses to easily slip into the record.
The Commonwealth of Massachusetts has declined to find electronic communications between spouses to be sufficiently private to warrant any form of protection. Massachusetts recognizes two limitations on testimony and evidence arising out of marriage: spousal privilege and spousal disqualification. Spousal privilege, which precludes one spouse from being compelled to testify against the other, applies only in criminal prosecutions. Spousal disqualification, however, provides that one spouse may not testify as to “private conversations” with the other, except in very limited circumstances. Spousal disqualification is applicable in both criminal and civil proceedings.
The Commonwealth has declined to recognize text messages as a form of “private conversation.” Indeed, the statutes and rules of evidence in question are to be read quite literally, only applying to oral communication, nothing else. In Commonwealth v. Szczuka, 391 Mass. 666 (1984) the SJC dealt specifically with the issue of written communications between spouses. There, a defendant sought to have four letters written to his wife excluded from evidence. In footnote 14 of the opinion, the SJC stated that “…written communications are not within the scope of the disqualification of ‘private conversations’ provided by G.L. c. 233, Section 20.” Further, the SJC doesn’t think texts are all that private. In Commonwealth v. Delgado-Rivera, 487 Mass. 551, 562 (2021), the Court stated that “any purported expectation of privacy in sent text messages… is significantly undermined by the ease with which these messages can be shared with others… [a recipient] can forward the contents of the message to hundreds or thousands of people at once, or post a message on social media for anyone with an Internet connection to view.”
These cases make clear that the Commonwealth has no intention of joining the rest of us in the modern world. While the SJC may be correct that text messages may be susceptible to dissemination on a wide scale, that should not undermine the fact that society has a vested interest in the privacy which spouses enjoy. Seeing as a large share of spousal communication has shifted to electronic means, it seems important that the protections afforded by this doctrine shift with it.
While Massachusetts has declined to embrace text messages within the umbrella of marital privilege, Federal courts have interpreted “marital communications” more broadly. Yet, while there is a degree of protection afforded to text messages between husband and wife on the Federal level, the protection of such communication is not nearly as robust as other forms of privilege, such as that between attorney and client. Federal Rules of Evidence 501 covers privileged marital communications in both civil and criminal proceedings. Like Massachusetts, the privilege has a two-fold application: the privilege against adverse spousal testimony and the privilege of confidential marital communications (the second prong has a broader protection than that of spousal disqualification in Massachusetts). It is the latter whose contours are particularly ill-defined.
For example, courts must grapple with what constitutes a communication in the context of text messaging. In United States v. Lander, 825 F. App’x 235 (5th Cir. 2020), the Fifth Circuit has recently declined to extend marital privilege protection to photos exchanged between husband and wife via text. The Court declined to answer the question of whether or not these images were protected under the privilege doctrine, instead the Court affirmed the allowance of these images on a harmless error standard. While not providing any definitive answer, a ruling such as this raises interesting questions as what might qualify as a communication. Would a gif or a link sent between spouses, with the expectation of confidentiality, be similarly unprotected?
Another troubling aspect of the deficient protection afforded electronic marital communication is that voluntary surrender of one’s phone to authorities waives any such rights of privilege to the contents therein. A spouse may not even know they are incriminating their significant other and inadvertently surrender such evidence. Prosecutors can similarly get around claims of privilege by showing that one spouse shared the contents of the message with another. This would defeat the expectation of privacy requirement, even if that third party privy to the communication is the couple’s own child.
Furthermore, under the so-called “joint participant” rule, spouses who both participate in the same criminal activity waive their right to have privileged communications. Cases that fall within this exception, warranting departure from the interest in marital harmony, is justified by the higher interest in pursuing “truth and justice.” While truth and justice sound nice, it is just as easy for the unscrupulous prosecutor to levy charges against both spouses as co-conspirators. The rule contains a strange logic. A wife who confesses murder to her husband may have those communications protected, but a husband and wife who steal twenty dollars forfeits all rights of marital privilege.
Unfortunately, even where prosecutors improperly admit privileged communications into the record, its likelihood of being reversed on appeal is slim to none. Evidentiary rulings are reviewed on appeal against an abuse of discretion standard subject to the harmless error rule. Given the deference afforded to lower courts regarding discretion, all a prosecutor really needs to show on appeal is that the facts presented by the evidence admitted were supported elsewhere on the record. It’s not a high burden, and the deterrence against prosecutors from going ahead and admitting spousal texts is very slim.
In 1973, Proposed Federal Evidence Rule 505 sought to abolish the privilege. Although this was rejected by Congress, it should give us pause to consider whether society sees the same value in the marital unit as it once did. As technology has evolved, our jurisprudential attitude towards marriage has failed to change with it. Given the extent and degree of electronic communication between spouses in today’s age, failure to afford marital communications robust safeguards may well undermine the institution as a whole.
Student Bio: Anthony Aceto is a 2L at Suffolk University Law School. He is a staff writer on the Journal of High Technology Law. Anthony received a Bachelor of Arts Degree in Philosophy and Economics from Boston College.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
