February 4, 2023

This writer likes to think of himself as a legal historian in his grander moments. And in these “fantastic” moments he (a) writes in the third person and (b) indulges in comparisons between modern and ancient law. What makes this particularly funny is the fact that the US Supreme Court cases related to gun control and abortion rights released last June appear to see 18th century law rhapsodic.

I once had similar views. But the more 18th Century legal history I read, the less humane it seems to me. Criminal trials were often measured in minutes rather than days, and by 1800 there were no fewer than 200 crimes for which the penalty was execution. The jury knew that the law imposed the death penalty and had no hesitation in acquitting a guilty defendant whom they did not wish to see sentenced to death. Defendants charged with a crime but endowed with “resources” could easily buy witnesses who would testify under perjury for a reasonable fee. Many principles of law that we celebrate today have 18th century origins. This is not to say that we want modern society to emulate 18th Century law as it was administered.

In many states, jurisprudence informs us that where common law is relevant, the courts should revert to the leading authority of the mid-18sth Century British Law, the analyzes of Sir William Blackstone. His Commentaries on the Law of England, in four volumes published between 1765 and 1769, attempted to summarize the law as it existed on the eve of the American Revolution. When American independence was recognized in the 1783 Treaty of Paris, the then-tiny American legal community had a great debate over whether “English law” should be adopted here. In the end, Blackstone won because no one knew which other law to apply.

The difficulties with the “common law” as digested by Judge Blackstone become apparent when you read his commentary on women’s rights. The law of spousal privilege derives from the concept that the sanctity of marriage is so important that no spouse can be compelled to testify against a spouse, no matter how important the issue of communication between the married couple is to the public good. We’ll see how that plays out in a case decided by the Superior Court of Pennsylvania last week. But let’s look at a law first.

There are two spousal privileges under Pennsylvania law that may apply in a civil suit: Privilege not to testify against spouse, 42 Pa. cons Stat. § 5924, and the privilege not to testify about confidential communications between spouses, 42 Pa. cons Stat. Section 5923. Brown v. Scafidi, 839 F.Supp. 342, 344 (ED Pa. 1993). See Emmi vs Deangelo USDC EDA No. 16-337 (2017).

Federal Rule of Evidence 501 expressly states that common law applies to privileges unless later federal law to the contrary. So let’s see what Judge Blackstone has to offer about the “impact” of marriage. Forgive me if I clear the juicy parts.

“By marriage, man and woman are a legal person, that is, the nature or legal existence of the woman is abolished during marriage, or at least incorporated and consolidated into that of the husband; under whose wing, protection and Home pageshe carries out everything; and is therefore called a in our legal French feme-covert, foemina viro co-operta; is said that covert baronor under the protection and influence of her husband, her baron, or Mr; and her condition during her marriage is called her cover. Almost all the legal rights, duties, and disabilities that each of them acquires through marriage depend on this principle of the union of persons in man and woman. I’m not talking about property rights now, but about those that just are personally. For this reason a man cannot grant or covenant with his wife: for to grant would be to assume their separate existence; and making a covenant with her would only mean making a covenant with yourself: and therefore it is also generally true that all contracts made between a man and a woman when they are single are rendered void by intermarriage.”

Note: That last sentence really thwarts Pennsylvania’s premarital arrangement law. But I digress…

If Mr. Blackstone’s recourse to Latin and French has confused the reader, allow me to offer my 21St century translation. “We can sign any type of agreement you want before we get married, but once we do that the agreement is void and you’re mine. As my wife, your legal existence is ‘suspended’.” In fact, this law relating to a woman’s legal rights was much more complicated than Blackstone’s summary, but this is the result of exceptions to the general principle derived from the Bible that a married husband “governs” his family.

So we have two spousal privileges in Pennsylvania based on statutes. Lest we forget, there is also a 1971 amendment to the Pennsylvania Constitution. It says; “Legal equality in the Commonwealth of Pennsylvania shall not be denied or restricted on the basis of a person’s sex.” Art. I, Section 28. For the record, the bylaws do not reflect Blackstone’s sexism. They seem to communicate clearly that a wife can also prevent her husband from testifying about her marital communications. It is interesting that this common law doctrine of spousal privilege makes it clear that the sanctity of marital communication trumps any private interest and even any public interest in whether a crime or tort has occurred.

Now it’s time to introduce yourself Smith vs. O’Brien, a reported case decided by the Superior Court on January 19, 2023. 2023 Pa.Super. 9. This is an appeal against an injunction directing a widow to testify about what her late husband said to her before he took his own life. The plaintiff’s complaint alleges that she was a guest of the defendant and her late husband between the ages of five and ten and that she was sexually abused by the testator during those visits. In 2020, the plaintiff sued the defendant and her husband’s estate for damages for these alleged attacks.

The plaintiff took note of the testimony of the surviving wife and inquired whether her husband had discussed what happened when the plaintiff was in their household. The woman testified that the police conducted an investigation and her husband told her “why he spoke to the police” after they left. When the plaintiff wanted to pursue this question further, the surviving spouse asserted the spousal privilege. This case stems from a court order ordering the wife to disclose the content of her husband’s statements.

The husband died in a train crash hours after being questioned by police. One of the questions in this case is whether spousal privilege survives the death of a spouse. In a case from 2016 Cap Glass Inc v Coffman, 130 A.3d 783 the Superior Court wrote that the purpose behind spousal privilege was “to promote and protect marital harmony”. The defendant concedes that her husband’s death ended all prospects of marital harmony, and the panel’s opinion offers that the defense of a tort claim threatening the wife’s property and her husband’s estate bears little relation to the has to do with the common good. The Supreme Court, while acknowledging that the appeal would qualify for a preliminary hearing if the husband were alive, notes that disclosure of the Declaratory Statement will not affect that marriage. The appeal was overturned.

Technically, the verdict is not to be criticized. But it appears that pre-trial detention means the trial court and the parties must endure further litigation that may bring the same matter to court again.

The core question and related public policy make for an intriguing debate. Had Mr. O’Brien accepted the allegations as true for the sake of discussion, both he and his wife, if he had survived, would have been able to deflect all issues of their communication regarding the sexual assault of an elementary school student on the basis that their “marital harmony” was more important than the interest of the public or the victim in bringing about justice. Remember that if Mr. O’Brien has made any statements to anyone other than his spouse, vicar and attorney, those statements have no protection. Oddly enough, under 42 Pa.CS 5924(b), a spouse who discovered her husband sexually abusing her own child and another child (not hers) could testify in abuse and custody proceedings about the assault on her child, but from the Statement about the child who does not belong to the family can be excluded.

Added to this are the complications of separation and divorce. We read a comment stating that privilege survives divorce, although this author did not offer a citation. Then there is the question of the spouse who separates but is not yet divorced. In com. Valle-Velez, a three-judge panel ruled that the privilege continued in the absence of a divorce decree. 995 A.2d 1264 (2010). This case was limited to the assertion of the privilege in criminal proceedings under 42 Pa.CS 5913-5914, but the principle seems to be the same. What was strange in this case was that no-fault divorce proceedings were pending. The question then reverts to whether the privilege fails once the decree has been entered. The unfortunate follow-up question for the divorce lawyer is whether a judgment should be deferred until a statute of limitations has expired.

Are we protecting marriage or are we just creating an incentive for blackmail? In addition, it must be asked whether the “preservation” of an otherwise divisible marriage should be used to prevent criminal and civil proceedings for criminal conduct. In Trump vs Vance, a case of significant public importance, the United States Chief Justice wrote that “in our system the public has a right to the evidence of every man” 591 US ____ (2020). It seems hollow when such a fanfare is gutted by the words “unless we have a marriage to protect.” In August 2019, the New Mexico Supreme Court abolished spousal privilege as an anachronism encouraged by Blackstone’s paternalistic ideas about marriage. State against Guttierez, 482 p. 3d 700 (2019). This guy murdered someone and then told his wife he did it. He later divorced, remarried, and told his second wife about his behavior. The expert opinions in this case reveal the fact that spousal privilege is a device that hinders rather than promotes justice.

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