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Are Text Messages to My Spouse Admissible Evidence in a Criminal Trial?


If you watch enough television courtroom dramas, you have probably heard about the concept of “spousal privilege,” i.e., the idea that one spouse cannot be compelled to testify against the other in a criminal trial. In reality, spousal privilege actually takes two forms. The first is what is described above, which is known as testimonial privilege. But there is also a second form of privilege that attaches to communications between spouses, which applies in both criminal and civil cases.

Maryland Court of Appeals: Duty to Report Child Abuse Outweighs Marital Privilege

But the marital communications privilege is not absolute. In the context of a criminal trial, for example, the prosecution may seek to introduce communications between spouses as evidence if there is proof that said communication was never intended to be “confidential.” Put another way, if the prosecution can prove that the spouse on trial had no reasonable expectation that communication with his or her spouse would remain between them, then the substance of that communication is not subject to marital privilege.

The Maryland Court of Appeals recently clarified the scope of what qualifies as a “reasonable expectation.” In State v. Sewell, prosecutors in Worcester County charged the defendant with murdering his three-year-old nephew. The child’s parents had left him in the care of the defendant and his wife. Prior to the child’s death, the defendant’s wife noticed the child had “a lot of bruises, included bruising behind his ears, down his neck, on his chest, arms, and legs,” as well as “black eyes and a knot on his head.”

The next morning, the defendant’s wife went to work. She exchanged a number of text messages with the defendant during the day. The messages indicated the defendant was responsible for the bruises on the child. Later that day, when the defendant’s wife returned the child to his parents, he was found “hunched over” and “unresponsive” in his car seat. Emergency medical personnel discovered additional bruising on the child, who later died after receiving surgery.

At the defendant’s trial, the prosecution sought to introduce the text messages exchanged between the defendant and his wife. The defense objected, citing the marital communications privilege. The trial judge overruled the objections and allowed the jury to see the text messages. The jury ultimately convicted the defendant of first-degree murder and other charges.

The Court of Appeals agreed to address the question of whether the trial court properly admitted the text messages. This also led the Court to consider the scope of the marital communications privilege itself. On that issue, the Court held the privilege must be construed “narrowly.” Although the Court disagreed with the prosecution’s view that text messages between spouses could “never” be confidential, there was no “reasonable expectation” of confidentiality when one spouse admits to committing acts of child abuse, which by law “all Marylanders” are required to report to the authorities.

In this case, the defendant’s spouse did not report him for child abuse. But the point is that the defendant could not reasonably expect his wife not to report him. As the Court of Appeals noted, “The confidential marital communications privilege cannot be a safe harbor for abuse and predation—excluding the invaluable testimony of one of the only likely witnesses to such intimate crime against such vulnerable victims.”

Speak with a Maryland Criminal Defense Lawyer Today

When you are facing serious criminal charges, do not assume that you will be protected by principles like the marital privilege. Indeed, do not make any assumptions at all. Instead, contact a qualified Maryland criminal attorney who can advise you of your rights. Call Henault & Sysko Chartered today at 410-768-9300 to speak with a member of our legal team.


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