Spousal Communications Privilege Inapplicable To Communication On Concealing Criminal Assets

Fifth Circuit highlights exception to privileged communications, in United States v. King, 541 F.3d 1143 (5th Cir. Aug. 26, 2008) (No. 07-30649)

Two separate privileges based on the marital relationship are recognized. First, confidential communications during marriage may be privileged. Second, another privilege may bar a spouse from testifying against the other during the marriage.

The first privilege was recently considered in King, a prosecution for a cocaine distribution conspiracy. Recorded conversations between the defendant and his wife were introduced at trial in support of the charged money laundering conspiracy.

In the conversation, the defendant and his wife discussed the use of a vehicle which the government claimed was purchased with drug proceeds. The defendant claimed the privilege barred the admission of the recorded conversation. The trial court and circuit both agreed that the privilege did not apply based on the “joint participation” crime exception under the privilege. 541 F.3d at 1146. The King case demonstrates that the societal benefits from a privilege protecting marital communications do not apply where the spouses jointly participate in criminal activity.

Federal Rules of Evidence