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  • Writer's pictureBrian Foley

Conroe Criminal Defense Attorney - Texas Rules of Evidence Series RULE 504

Rule 504 is called the Spousal Privilege Rule. It was renamed since I have become a lawyer in 2010. Back then it was called the "Husband-Wife Privileges." This rule is probably the most confusing and complicated rule about privileges in the Texas rules of evidence. Almost every lawyer knows that these privileges exist but getting down the exact mechanics is tricky and its very hard to find a lawyer who can rattle these off the top of their heads in a precise way. We are going to try to make it easy for you today.

There are two Privileges regarding spouses and they differ in who can assert the privilege and what is covered by the privilege.

  1. One spouse can stop the other from disclosing things they said during the marriage. (except divorce and family violence)

  2. One spouse can refuse to testify against the other in a criminal case unless they or their household member is the victim.

1. Things said during the marriage.

So the first Spousal Privilege says that one spouse can affirmatively prevent the other from disclosing information that was supposed to be confidential and made during the marriage.

What about the secret you told your spouse about you not really owning the property where all the mineral rights were found? If it was made during the marriage and you intended to keep it just between you and your spouse, you could prevent them from disclosing this information even if you get divorced and the other party wants to screw you in litigation with the current owner of the mineral rights. See Wiggins v. Tiller, 230 S.W. 253, 254 (Tex. Civ. App. -- San Antonio 1921, no writ)(regarding a dispute about vehicle ownership instead of mineral rights.)

The exception to this is civil lawsuits, like divorce, between the two spouses, and family violence criminal cases where one spouse abuses either the other spouse, a child, or another household member of the spouses.

95% of the time the spousal privilege is denied it will be because of divorce or family violence. There are other exceptions though. If the two spouses are conspiring together in order to commit fraud against another person then the communications are not considered privileged. United States v. Ramirez, 145 F.3d 345, 355 (5th Cir. 1998). You may also not assert the confidential communications marital privilege if the legal proceeding is to commit the spouse to a mental hospital or challenge their mental competence.

2. Privilege not to testify in a criminal case.

The privilege not to testify in a criminal case is different from the privilege related to confidential communications in that each spouse gets to make this determination by themselves. One spouse can't force the other not to testify in a criminal matter. This goes without saying for family violence casesIt is similar however in that it only applies to matters after the marriage. So for example, if the mob bosses wife wants to testify against him saying, "I saw him shoot Donny Brasco . . ." then she can do so if she wants to. He cannot stop her from taking the witness stand and testifying against him. He can also force her to take the witness stand if he wants and his failure to call her as a witness may be commented upon by the prosecutor.

This means that if the wife saw the murder but chooses not to testify instead of backing up her husband then the State can say, "Well isn't that funny, the only person who could serve as an alibi wasn't called by the defense. I wonder why that is?"

However a prosecutor may not call the defendant's spouse to the witness stand for the sole purpose of her invoking her spousal privilege in front of the jury. Benitez v. State, 5 S.W.3d 915, 918 (Tex. App. -- Amarillo 1999, pet. ref'd) and see Tex. Rule Evid. 513 prohibiting the court or parties from commenting on the invocation.

Now if you were paying attention there did you notice the huge contradiction between Rule 513 which says you can't comment on people invoking their privilege and the exception about failure to testify in a criminal case?

Rule 504 announces a more specific rule than 513 as it reads, "If other evidence indicates that the accused’s spouse could testify to relevant matters, an accused’s failure to call the spouse to testify is a proper subject of comment by counsel."

This is probably the result of a simple common law rule which held that you cannot force one spouse to testify against another being subject to the rigors of code drafting modern lawyers. This type of drafting turns "rules" into endless fact specific exceptions. C'est la vie.

The only time I've ever heard an argument about one of these privileges was during a DWI case and the defendant's wife was present in the courtroom and would have had knowledge about how the defendant normally drove or his normal mental faculties and the prosecution asked to call her as a witness and both counsels and the judge debated it before another lawyer came in and said, "Wait, what about the spousal privilege?" The discussion was dropped at that point and the legal crisis averted.

Rule 504. Spousal Privileges

(a) Confidential Communication Privilege.

  1. Definition. A communication is “confidential” if a person makes it privately to the person’s spouse and does not intend its disclosure to any other person.

  2. General Rule. A person has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made to the person’s spouse while they were married. This privilege survives termination of the marriage.

  3. Who May Claim. The privilege may be claimed by:

    1. the communicating spouse;

    2. the guardian of a communicating spouse who is incompetent; or

    3. the personal representative of a communicating spouse who is deceased.

The other spouse may claim the privilege on the communicating spouse’s behalf— and is

presumed to have authority to do so.

4. Exceptions. This privilege does not apply:

  1. Furtherance of Crime or Fraud. If the communication is made—wholly or partially—to enable or aid anyone to commit or plan to commit a crime or fraud.

  2. Proceeding Between Spouse and Other Spouse or Claimant Through Deceased Spouse. In a civil proceeding:

    1. brought by or on behalf of one spouse against the other; or

    2. between a surviving spouse and a person claiming through the deceased spouse.

  3. Crime Against Family, Spouse, Household Member, or Minor Child. In a:

    1. proceeding in which a party is accused of conduct that, if proved, is a crime against the person of the other spouse, any member of the household of either spouse, or any minor child; or

    2. criminal proceeding involving a charge of bigamy under Section 25.01 of the Penal Code.

d. Commitment or Similar Proceeding. In a proceeding to commit either spouse or otherwise to

place the spouse or the spouse’s property under another’s control because of a mental or

physical condition.

e. Proceeding to Establish Competence. In a proceeding brought by or on behalf of either

spouse to establish competence.

(b) Privilege Not to Testify in a Criminal Case.

  1. General Rule. In a criminal case, an accused’s spouse has a privilege not to be called to testify for the state. But this rule neither prohibits a spouse from testifying voluntarily for the state nor gives a spouse a privilege to refuse to be called to testify for the accused.

  2. Failure to Call Spouse. If other evidence indicates that the accused’s spouse could testify to relevant matters, an accused’s failure to call the spouse to testify is a proper subject of comment by counsel.

  3. Who May Claim. The privilege not to testify may be claimed by the accused’s spouse or the spouse’s guardian or representative, but not by the accused.

  4. Exceptions. This privilege does not apply:

    1. Certain Criminal Proceedings. In a criminal proceeding in which a spouse is charged with:

      1. a crime against the other spouse, any member of the household of either spouse, or any minor child; or

      2. bigamy under Section 25.01 of the Penal Code.

    2. Matters That Occurred Before the Marriage. If the spouse is called to testify about matters that occurred before the marriage.

Comment to 2015 Restyling: Previously, Rule 504(b)(1) provided that, “A spouse who testifies on behalf of an accused is subject to cross-examination as provided in Rule 611(b).” That sentence was included in the original version of Rule 504 when the Texas Rules of Criminal Evidence were promulgated in 1986 and changed the rule to a testimonial privilege held by the witness spouse. Until then, a spouse was deemed incompetent to testify against his or her defendant spouse, and when a spouse testified on behalf of a defendant spouse, the state was limited to cross-examining the spouse about matters relating to the spouse’s direct testimony. The quoted sentence from the original Criminal Rule 504(b) was designed to overturn this limitation and allow the state to cross- examine a testifying spouse in the same manner as any other witness. More than twenty-five years later, it is clear that a spouse who testifies either for or against a defendant spouse may be cross- examined in the same manner as any other witness. Therefore, the continued inclusion in the rule of a provision that refers only to the cross-examination of a spouse who testifies on behalf of the accused is more confusing than helpful. Its deletion is designed to clarify the rule and does not change existing law.

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