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Ulibarri v. Superior Court8/22/1995
privileges and therefore that the privilege should be applied sparingly. McCormick argues that while the marital privilege protects privacy, it does not encourage marital communications. "What encourages [the parties] to fullest frankness is not the assurance of courtroom privilege, but the trust they place in the loyalty and discretion of each other." McCormick on Evidence ยง 86, p. 309 (4th ed. 1992). McCormick argues for the narrowing or elimination of the marital privilege:
While the danger of inJustice from suppression of relevant proof is clear and certain, the probable benefits of the rule of privilege in encouraging marital confidences and wedded harmony is at best doubtful and marginal. . . .
Delicacy and decorum, while worthy and deserving of protection, will not stand in the balance where there is a need for otherwise unobtainable evidence critical to the ascertainment of significant legal rights. This disproportion, together with the consideration that maintenance of privacy as a general objective is not critically impaired by its sacrifice in cases of particular need, argues for treating this privilege as a qualified one. . . .
It may someday be recognized that a communications privilege, however appropriate to professional relationships, is highly unsuited to the marital context . . .
Id. at p. 310-11. In contrast to the marital privilege, professional communications privileges do encourage communication. For example, the client is often expressly, indeed acutely, aware that his lawyer may not reveal the client's confidences and is thereby encouraged to communicate frankly and fully with the lawyer. Thus, I find no persuasive basis for distinguishing testimonial privileges so that the marital privilege is exempt from waiver while other privileges are not.
The majority opinion cites but a single case for its view that no waiver occurs in these circumstances. However, I find Wadlington v. Sextet Mining Co., 878 S.W.2d 814 (Ky. App. 1994) unpersuasive. In that case, implied waiver by bringing a lawsuit was not even an issue. Rather, the question was whether the scope of the marital communications privilege extended to a former spouse's knowledge gained by simple observation -- which of course, it does not. As a result, the court allowed the former spouse to testify to her observations of an injury , but marital communications were not allowed in evidence.
On the other hand, several courts have held that a marital privilege is waived when the spouse affirmatively places in issue the subject matter of the communication. For example, Prink v. Rockefeller Center, Inc., 48 N.Y.2d 309, 398 N.E.2d 517, 422 N.Y.S.2d 911 (1979) held that a wrongful death plaintiff could not withhold communications to her by the deceased spouse revealing his mental state when the issue was whether death was by accident or by suicide. After quoting Professor McCormick that the purpose of the privilege is to protect marital privacy, the court said:
Bearing in mind the purpose for which the privileges in question were created . . ., the affirmative stance of plaintiff who claims . . . to have sustained pecuniary injury as a result of defendants' negligence, and the unfairness of permitting plaintiff to succeed by hiding behind the privileges asserted, we are satisfied on balance that the better policy is to hold the privileges waived. . . .
To hold otherwise is to ignore the realities of the factual situation and to come perilously close to a taking of defendants' property without due process of law.
398 N.E.2d at 522.
United States v. Premises Known as 281 Syosset Woodbury Road, 862 F. Supp. 847 (E.D.N.
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