Federal Evidence Review

In tax evasion trial, defendant's ex-wife testified about conversations while married to the defendant on whether to file tax returns; the testimony was admissible under the joint crime exception to the confidential marital communications privilege, in United States v. Miller, __ F.3d __ (5th Cir. Nov. 20, 2009) (No. 08-31168)

Generally the federal courts recognize an exception to the confidential martial communications privilege that exempts communications about the spouses’ joint activities in a crime. See e.g., United States v. King, 541 F.3d 1143, 1146 (5th Cir. 2008) (“Although this Court recognizes a privilege ‘protecting confidential communications between spouses’ … ‘conversations between husband and wife about crimes in which they are jointly participating when the conversations occur’ are not privileged. The district court [correctly] held that the ‘joint participation’ exception applied in this case because the conversations at issue involved the ‘potential criminal activity of hiding assets’”); United States v. Vo,, 413 F.3d 1010, 1017 (9th Cir. 2005) (noting application of a “marital communications Privilege” that “(1) extends to words and acts intended to be a communication; (2) requires a valid marriage; and (3) applies only to confidential communications, i.e., those not made in the presence of, or likely to be overheard by, third parties” as well as an “important exception … when those confidences concern joint criminal activity”).

In a recent case, the Fifth Circuit noted this exception to the confidential spousal communications privilege did not require that both spouses be charged in the alleged crime. In the case, Defendant Miller was indicted for embezzlement and tax evasion after the medical system that had employed him turned over to authorities computers from which Miller had billed patients. These records indicated he embezzled payments to the medical system by keeping two sets of books and that he evaded federal taxes.

During his trial, the district court admitted testimony from defendant’s ex-wife who had helped him manage his business accounts at the time of the alleged crime when they were still married. In particular, his ex-wife testified about conversations with the defendant concerning their disagreement about the defendant’s failure to file income tax returns. The defendant’s ex-wife “testified that she ultimately consented to Miller's decision [not to file income tax returns], even though she believed that she was committing a crime by failing to file.” Miller, __ F.3d at __. In his own testimony the defendant admitted that he disagreed with his former wife on not filing tax returns. The jury convicted the defendant and he appealed, based in part on the argument that the admission of his former wife’s testimony violated his confidential spousal communications privilege.

The circuit affirmed admission of the former-wife’s testimony. The circuit noted that it had “recognized an exception to the confidential marital communications privilege” that applied to “conversations between husband and wife about crimes in which they are jointly participating.” Under this exception, the testifying spouse “need not be charged with a crime, so long as the testimony conveys joint criminal activity.” Miller, __ F.3d at __.

The circuit’s description of the ex-wife’s testimony that fell under the exception was succinct. First, the witness’s testimony “about conversations with Miller in which they discussed how to process checks and whether they [patient’s checks] should go into business or personal accounts” was “testimony [that] involved conversations about a joint criminal activity and thus is not protected by the confidential marital privilege.” It was the same for her testimony that the defendant “decided not to file taxes after joining [anti-tax protest group] Save-a-Patriot because he believed that filing taxes was not necessary and unconstitutional. This statement [wa]s not privileged because, as noted, it involves discussion of joint criminal activity.” Miller, __ F.3d at __. The circuit dismissed the contention that it was not a joint crime since the ex-wife had not been charged in the case. The fact she “was not charged with any crime does not preclude a finding that there was joint criminal activity” the circuit concluded.Miller, __ F.3d at __.

But even if the testimony did not satisfy the requirements of the joint crime exception, the evidence was properly excluded. For example, the statement about the defendant’s beliefs about paying taxes was not prejudicial because it was consistent with the defendant’s own testimony that he had a “good faith belief, based on his reliance on Save-A-Patriot materials, that he did not have to pay taxes.” Similarly, in the course of reconfirming the applicability of the joint crime exception, the circuit found a variety of other reasons that the challenged testimony was not within the scope of the martial privilege. For instance, a portion of the testimony involved the defendant’s “practice of processing payments that were made to the medical clinic. This testimony is not privileged because it refers to acts, not communications.” Miller, __ F.3d at __.

The Miller case does not break any new ground on the application of the joint crime exception to the confidential marital communications privilege. But it does illustrate how the exception serves as one tool, among many others, that might render the privilege inapplicable.