Protecting Marital Privacy: The Marital Privilege

The privilege protecting information privately disclosed between husband and wife, in the confidence of their marital relationship, has been described by the United States Supreme Court itself as “the best solace of human existence.” Trammel v. United States, 445 U.S. 40, 51 (1980) (citing Stein v. Bowman, 13 Pet.209, 223 (1839). Sister circuits refer to the marital privilege as “venerated” by the law and courts across time and geography. Matter of Grand Jury Subpoena of Ford v. United States, 756 F.2d 249, 252 (2d Cir. 1985). The marital privilege has been a feature of the common law for centuries. See 8 John H. Wigmore, Wigmore on Evidence § 2227 (John T. McNaughton ed. 1961); II Kent's Commentaries 178 (3d ed. 1836). Congress provided in the Federal Rules of Evidence that the rules concerning privilege that “the privilege of a witness ... shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.” See Federal Rules of Evidence 501. Thus, Congress intended to preserve for today's witnesses the privileges that had existed at common law.

The United States Supreme Court has recognized the policy concerns that underlie the marital privilege. In determining whether to reconsider the scope of the marital privilege, the Court noted: “[T]he long history of the privilege suggests that it ought not to be casually set aside. That the privilege is one affecting marriage, home, and family relationships-­‐already subject to much erosion in our day-­‐also counsels caution.” Trammel v. United States, 445 U.S. 40, 48 (1980).

Just as IRS special agents must abide by the Constitutional limitations on their duties, the same is so of prosecutors and grand juries. The American Bar Association Standards Relating to the Administration of Criminal Justice Standard 3-­‐5.7(c) are directly on point: “A prosecutor should not call a witness who the prosecutor knows will claim a valid privilege not to testify for the purpose of impressing upon the jury the fact of the claim of privilege.” The same limitation applies to a grand jury. A grand jury may not itself violate a valid privilege, whether established by common law, statute or the Constitution. See Branzburg v. Hayes, 408 U.S. 665 (1972). For example, a grand jury may not override a witness's Fifth Amendment privilege against self-­‐ incrimination without a grant of immunity co-­‐extensive with the privilege. See Kastigar v. United States, 406 U.S. 441 (1972). Nor may a grand jury itself violate the Fourth Amendment by issuing a subpoena duces tecum “too sweeping in its terms to be regarded as reasonable.” Hale v. Henkel, 201 U.S. 43 (1906). Court cannot enforce a grand jury subpoena which offends the “fundamental policy” of protecting an individual’s privacy interest, preventing illicit surveillance, and entamgling courts in unlawful conduct offensive the laws of the land. See Gelbard v. United States, 408 U.S. 41 (1972).

This concern also was the foundation for cases dismissing indictments for more than four decades in this Circuit. As each court found, the privilege cannot permit the prosecution to gain an advantage with the jury by inferring that if the spouse's testimony were in fact exculpatory, the defendant would not be asserting the privilege. See Courtney v. United States, 390 F.2d 521, 528 (9th Cir. 1968) (reversing conviction because the district court erred in requiring the marital privilege to be asserted before the jury, if at all, and allowing prosecutorial comment on defendant's wife's failure to testify, which effectively destroyed the spousal privilege); see also Tallo v. United States, 344 F.2d 467, 469-­‐470 (1st Cir. 1965); see also San Fratella v. United States, 343 F.2d 711, 712 (5th Cir. 1965).

To protect these rights, each spouse, like any witness, “is allowed to have an attorney present outside the grand jury room and to consult with the attorney before answering any question.” United States v. Kennedy, 372 F.3d 686, 692 (4th Cir. 2004). Courts rely upon this protection for the propriety of the grand jury process. See United States v. Weinberg, 439 F.2d 743, 745 (9th Cir. 1971). As courts note: “We think that the rule under which appellant was free to leave the grand jury room at any time to consult with counsel is a reasonable and workable accommodation of the traditional investigatory role of the grand jury, preserved in the Fifth Amendment, and the self-­‐incrimination and right to counsel provisions of the Fifth and Sixth Amendments.” United States v. Capaldo, 402 F.2d 821, 824 (2d Cir. 1968).

Yet, each of these prosecutorial ethical commands, investigative limitations, publicly reliant rules, and protected privileges is too often and too easily violated when innocent individuals take on the IRS alone. A knowledgeable IRS defense lawyer can assert, help enforce, and guard your rights in the IRS criminal investigation process at many stages of the case before it gets too far. While the past cannot guarantee the future, it is a resume worth knowing when choosing your tax defense lawyer. Barnes Law enjoys a 90% success in preventing the government from imprisoning its clients even when only hired after a fraud audit or IRS criminal investigation has commenced, while protecting your privacy in the process. Choose wisely: your freedom, your future, and your finances often depend upon it.