(a) Spousal privilege
(1) General rule
A spouse shall not be compelled to testify in the trial of an indictment, complaint, or other criminal proceeding brought against the other spouse.
(2) Who may claim the privilege
Only the witness-spouse may claim the privilege.
This privilege shall not apply in civil proceedings, or in any prosecution for nonsupport, desertion, neglect of parental duty, or child abuse, including incest.
(b) Spousal disqualification
(1) General rule
In any proceeding, civil or criminal, a witness shall not testify as to private conversations with a spouse occurring during their marriage.
This disqualification shall not apply to
(A) a proceeding arising out of or involving a contract between spouses;
(B) a proceeding to establish paternity or to modify or enforce a support order;
(C) a prosecution for nonsupport, desertion, or neglect of parental duty;
(D) child abuse proceedings, including incest;
(E) any criminal proceeding in which a spouse has been charged with a crime against the other spouse;
(F) a violation of a vacate, restraining, or no-contact order or judgment issued by a Massachusetts court or a similar protection order from another jurisdiction;
(G) a declaration of a deceased spouse if the court finds that it was made in good faith and upon the personal knowledge of the declarant; or
(H) a criminal proceeding in which the private conversation reveals a bias or motive on the part of a spouse testifying against his or her spouse.
The existence of the privilege depends on whether the spouse who asserts it is then married. The privilege applies even if the spouse was not married at the time of the events that are the subject of the criminal trial, and even if the spouse who asserts the privilege had testified in an earlier proceeding or trial. See Commonwealth v. DiPietro, 373 Mass. 369, 382 (1977). There is no common-law privilege, similar to the spousal privilege, applicable to unmarried cohabitants. Commonwealth v. Diaz, 422 Mass. 269, 274 (1996).
The privilege not to testify against a spouse applies regardless of whether the proposed testimony would be favorable or unfavorable to the other spouse. Commonwealth v. Maillet 400 Mass. 572, 578 (1987). The privilege is broad and it applies even though a spouse is called to give testimony concerning “persons other than the spouse.” Matter of a Grand Jury Subpoena 447 Mass. 88, 97 (2006).
The privilege applies to testimony at trial and not to testimony before a grand jury. See Matter of a Grand Jury Subpoena, 447 Mass. at 99 (court finds it unnecessary to “decide whether, or to what extent, the spousal privilege may be invoked in pretrial [or post trial] proceedings”). But see Commonwealth v. Szerlong, 457 Mass. 858, 864 (2010) (spousal privilege applied at pretrial hearing on motion in limine). The court should conduct a voir dire, outside the presence of the jury, and may inquire of the witness whether he or she will assert the privilege or otherwise refuse to testify. Id. at 864 n.10, citing Commonwealth v. Fisher , 433 Mass. 340, 350 (2001). However, a “spouse cannot be forced to testify regarding [his or] her reasons for doing so.” Id.
A spouse may testify against the other spouse if he or she is willing to do so. Commonwealth v. Saltzman, 258 Mass. 109, 110 (1927). The defendant-spouse has no standing to object to his or her spouse’s testimony. Commonwealth v. Stokes, 374 Mass. at 595. When a spouse decides to waive the privilege and testify against his or her spouse in a criminal proceeding, the judge should be satisfied, outside the presence of the jury, that the waiver is knowing and voluntary. Id. at 595 n.9.
The disqualification, unlike the privilege, bars either spouse from testifying to private conversations with the other, even where both spouses wish the communication to be revealed. Gallagher v. Goldstein , 402 Mass. 457, 459 (1988). “The contents of private conversations are absolutely excluded, but the statute does not bar evidence as to the fact that a conversation took place”. The disqualification survives the death of a spouse, see Dexter v. Booth, 84 Mass. 559, 561 (1861), except in civil cases subject to G. L. c. 233, § 65 (“In any action or other civil judicial proceeding, a declaration of a deceased person shall not be inadmissible in evidence as hearsay or as private conversation between husband and wife, as the case may be, if the court finds that it was made in good faith and upon the personal knowledge of the declarant.”).
Whether a conversation was “private” is a question of preliminary fact for the trial judge. Commonwealth v. Stokes, 374 Mass. 583, 595 (1978). Where children are present, “[i]t is for the trial judge to determine whether the conversation was overheard by the children and whether the children were ‘of sufficient intelligence at the time to pay attention, and to understand what was being said.’” Id., quoting Freeman v. Freeman 238 Mass. 150, 161 (1921). In the absence of an objection, evidence of private conversations is admissible and may be given its full probative value. Id. at 595 n.8. However, if there is an objection, the conversation is excluded even if neither spouse objects to the conversation being admitted. Gallagher v. Goldstein, 402 Mass. at 461; Commonwealth v. Salyer, 84 Mass. App. Ct. 346, 354 (2013). The conversation remains private, and thus inadmissible, even if one of the spouses discloses the conversation to a third party. Commonwealth v. Garcia, 476 Mass. 822, 827 (2017).
The disqualification applies only to conversations, not to other types of communications. For example, written communications are not included. Commonwealth v. Szczuka, 391 Mass. 666, 678 n.14 (1984). A spouse is not barred from testifying that a conversation took place, and, as a result, that he or she did something. See Sampson v. Sampson, 223 Mass. 451, 458–459 (1916). The disqualification does not bar a third person who overheard the “private conversation” from testifying to its contents. Commonwealth v. O’Brien, 377 Mass. 772, 774–775 (1979). See also Martin v. Martin, 267 Mass. 157, 159 (1929).
“[W]ords constituting or accompanying abuse, threats, or assaults of which the other spouse is the victim” are not regarded as private conversation for the purpose of the disqualification. Commonwealth v. Gillis, 358 Mass. 215, 218 (1970). See also Commonwealth v. Foxworth, 473 Mass. 149, 159–160 (2015). Complaints and exclamations of pain and suffering are also not private conversations for the purpose of the disqualification. Commonwealth v. Jardine , 143 Mass. 567, 567–568 (1887).
The disqualification depends upon the existence of the marriage at the time of the communication; it does not prohibit testimony by a spouse as to communications made prior to the marriage. Commonwealth v. Azar, 32 Mass. App. Ct. 290, 304 (1992), remanded for new trial on other grounds, 435 Mass. 675(2002). See also Commonwealth v. Barronian, 235 Mass. 364, 366 (1920).
The Supreme Judicial Court has left open whether the disqualification would bar testimony of a spouse when husband and wife are jointly engaged in criminal activity. Commonwealth v. Walker, 438 Mass. 246, 254 n.4 (2002).
The defendant’s constitutional right to confront witnesses may trump the statutory disqualification. “To determine whether the [marital] disqualification should yield to the invoked constitutional rights [in a criminal case the court] look[s] to whether the evidence at issue if admitted might have had a significant impact on the result of the trial” (quotations and citations omitted). Commonwealth v. Perl, 50 Mass. App. Ct. 445, 453 (2000) (upholding exclusion of private conversations which would have been cumulative of other evidence).
“Where [G. L. c. 233, § 20 ] confers a testimonial privilege, the language of the statute is to be strictly construed.” Matter of a Grand Jury Subpoena, 447 Mass. 88, 90 (2006).
Spousal disqualification does not apply in any Chapter 209C action. See G. L. c. 209C, § 16(c) . It also does not apply to any action to establish paternity, support, or both under the Massachusetts Uniform Interstate Family Support Act (Chapter 209D ), or to enforce a child support or alimony order. See G. L. c. 209D, § 3‑316(h) .
See Commonwealth v. Burnham, 451 Mass. 517, 521–522 (2008) (the statutory exception to the applicability of the marital disqualification in child abuse cases applies to both civil and criminal proceedings).
The statutory disqualification does not prohibit the child from testifying in a civil case, including but not limited to a divorce or custody case.
The Supreme Judicial Court has declined to recognize a testimonial privilege that parents could exercise to avoid being compelled to testify in criminal proceedings about confidential communications with their children. See Matter of a Grand Jury Subpoena, 430 Mass. 590, 590–591 (2000) (“the Legislature, in the first instance, is the more appropriate body to weigh the relative social policies and address whether and how such a privilege should be created”).
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