Email Spousal Communications Were Not Covered By The Marital Communications Privilege

Fourth Circuit concludes the defendant's email communications using his "public school workplace computer, through his work email account" to and from his wife were not protected by the marital communications privilege; waiver of the privilege resulted from “voluntary disclosure” based on the subsequent computer usage policy adopted by his employer, in United States v. Hamilton, _ F.3d _ (4th Cir. Dec. 13, 2012) (No. 11-4847)

The Fourth Circuit has considered an interesting case concerning whether email communications were protected by the marital communications privilege. Generally, the privilege is founded on the importance that society places on "marital confidences" which are "regarded as so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administration of justice which the privilege entails." Wolfle v. United States, 291 U.S. 7, 14 (1934). Under the circumstances of the case, the circuit agreed with the trial court that the communications were not protected.

In the case, defendant Hamilton, a former state legislator and Vice Chairman of the Appropriations Committee and public school administrator, was prosecuted on bribery and extortion charges. At trial, email communications to and from his wife were admitted. He claimed that these communications should have been protected by the marital communications privilege. After his conviction, the defendant challenged the admission of the spousal communications on appeal.

The Fourth Circuit started by noting a general presumption from Wolfle, the leading marital communications privilege case to have reached the Supreme Court: "Communications between . . . spouses, privately made, are generally assumed to have been intended to be confidential, and hence they are privileged." Wolfles, 291 U.S. at 14. In Wolfle, the Supreme Court held that the husband’s communication to his wife was not protected by the marital communication privilege be of its "voluntary disclosure" "to a third person, his stenographer." 291 U.S. at 14.

By analogy, the circuit noted that:

email has become the modern stenographer. Like the communications to the stenographer in Wolfle’s time, emails today, “in common experience,” are confidential…. But just as spouses can "conveniently communicate without" use of a stenographer, they can also "conveniently communicate without" using a work email account on an office computer. See Wolfle, 291 U.S. at 16. Therefore, as in Wolfle, it is hardly "plain that marital confidence cannot . . . reasonably be preserved" without according the privilege to the spousal communications at issue here. See id. at 17. Accordingly, that one may generally have a reasonable expectation of privacy in email, at least before a policy is in place indicating otherwise, does not end our inquiry.

Hamilton, _ F.3d at _.

The circuit found that the fact that the defendant’s workplace, the public school, did not have a computer usage policy in place in 2006, when the communications were sent, was not dispositive. As the circuit noted:

This is true, but the school system adopted a computer policy well prior to the 2009 investigation of, and 2011 charges against, Hamilton. The computer policy, as revised in 2008, expressly provides that users have "no expectation of privacy in their use of the Computer System" and "[a]ll information created, sent[,] received, accessed, or stored in the . . . Computer System is subject to inspection and monitoring at any time." Moreover, it is undisputed that forms accepting this policy were electronically signed in Hamilton’s name, and that Hamilton had to acknowledge the policy by pressing a key to proceed to the next step of the log-on process, every time he logged onto his work computer.…

In an era in which email plays a ubiquitous role in daily communications, these arguments caution against lightly finding waiver of marital privilege by email usage. But the district court found that Hamilton did not take any steps to protect the emails in question, even after he was on notice of his employer’s policy permitting inspection of emails stored on the system at the employer’s discretion.

Hamilton, _ F.3d at _.

Without the subsequent computer policy, the emails (analogized to a modern day stenographer) may have remained confidential communications between the spouses. Based on the Supreme Court precedent, the policy resulted in their "voluntary disclosure" and waiver.


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Federal Rules of Evidence