Evidence — marital communications privilege — waiver

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United States Court of Appeals For the Seventh Circuit

Criminal

Evidence — marital communications privilege — waiver

Where the defendant’s spouse testified at his pretrial detention hearing, the marital communications privilege is waived at trial.

“We conclude that a waiver of the marital communications privilege must be ‘voluntary’ only in the sense that the holder must realize that the once-confidential communication is being revealed. ‘But if the holder intends to disclose the privileged material, [even] “without realizing the impact” of the disclosure on the privilege, then there is a waiver.’ Id. § 5726; see United States v. Rakes, 136 F.3d 1, 5 (1st Cir. 1998) (finding no waiver of marital communications privilege, but stating: ‘Ordinarily, deliberate disclosure of a privileged communication, where no privilege protects this further disclosure, waives a communications privilege. . . . The restriction is one of public policy, and applies regardless of the privilege holder’s subjective intent.’) (citations omitted). ‘There can be no disclosure of that which is already known, for when a secret is out, it is out for all time, and cannot be caught again like a bird, and put back in its cage.’ People v. Bloom, 85 N.E. 824, 826 (N.Y. 1908).”

“We agree with the district court that what happened in the detention hearing amounted to a clear waiver of the marital communications privilege as to the communications that Mrs. Brock described in her testimony. The disclosure was made voluntarily and without pertinent objection to try to protect the confidentiality of any communications between Mr. and Mrs. Brock. The district court did not err by overruling the objections to Mrs. Brock’s trial testimony based on the marital communications privilege.”

Affirmed in part, and Vacated in part.

11-3473 U.S. v. Brock

Appeal from the United States District Court for the Southern District of Indiana, McKinney, J., Hamilton, J.