NCJ Number
61458
Journal
Washington Law Review Volume: 54 Issue: 1 Dated: (DECEMBER 1978) Pages: 65-96
Date Published
1978
Length
32 pages
Annotation
CONFUSION IN WASHINGTON STATE LAW OCCASIONED BY THE COEXISTENCE OF SPOUSE TESTIMONY AND MARITAL COMMUNICATION IS DISCUSSED.
Abstract
ALTHOUGH SPOUSE TESTIMONY AND MARITAL COMMUNICATION PRIVILEGES ARE TWO DISTINCT RULES OF EVIDENCE, THEY TEND TO BE JOINED IN THE LEGAL MIND BECAUSE BOTH PRIVILEGES ARISE FROM THE MARRIAGE RELATIONSHIP. THE PRIVILEGES ARE FUNDAMENTALLY DIFFERENT. THE TESTIMONY PRIVILEGE PROHIBITS ALL TESTIMONY BY THE CURRENT SPOUSE OF A PARTY IF THAT PARTY OBJECTS. THE COMMUNICATIONS PRIVILEGE, ON THE OTHER HAND, PROHIBITS TESTIMONY REGARDING CONFIDENTIAL INTERSPOUSAL COMMUNICATIONS, DISALLOWING SUCH TESTIMONY BY THE CURRENT OR FORMER SPOUSE IF THE PERSON WHO COMMUNICATED OBJECTS. THE COMMON PRACTICE OF REFERRING TO THE SPOUSE TESTIMONY PRIVILEGE AS 'SPOUSE COMPETENCY' LEADS TO CONFUSION BETWEEN THE TESTIMONY PRIVILEGE AND THE SPOUSE COMPETENCY RULE THAT HAS BEEN ABANDONED. IN WASHINGTON STATE, DIFFICULTIES ARE COMPOUNDED BY WORDING OF THE PRIVILEGE STATUTE. THE TWO PRIVILEGES ARE EMBODIED IN A SINGLE SENTENCE WITHOUT INSTRUCTIONS ON APPLICATION. ALL SPECIFIC RULES HAVE BEEN RENDERED PIECEMEAL BY THE COURTS. THE WASHINGTON JUDICIAL COUNCIL OMITTED PRIVILEGE RULES WHEN IT DRAFTED THE PROPOSED WASHINGTON RULES. IT IS APPROPRIATE AT THIS JUNCTURE (A COMPREHENSIVE STATEMENT OF RULES OF EVIDENCE IS BEING CONSIDERED) THAT THE LAW OF MARITAL PRIVILEGES BE CLARIFIED. FOOTNOTES ARE PROVIDED. (AUTHOR ABSTRACT MODIFIED--RCB)