Attorney David I. Fuchs
Aug. 19, 2016
Florida public policy supports the implementation of a strong spousal evidentiary privilege, so as to preserve goodwill, peace, and trust in the marital relationship. Public policy further dictates that healthy and functional marriages are fundamental to the well-being of a civilized society.
In a personal injury lawsuit, the spousal evidentiary privilege gives both spouses the ability to refuse to disclose confidential marital communications, and further, gives each spouse the ability to prevent the other from disclosing confidential marital communications. The privilege covers oral, written, and gesture-based marital communications.
Marital communications need not be innocent in terms of their content. A spouse may refuse to disclose confidential marital communications even if the information therein would obviously implicate the other spouse.
Suppose that a man is the plaintiff in a motor vehicle accident case. He was injured as a result of the defendant-driver’s negligent actions, but in reality, he has exaggerated the accident and its effects. If the defendant were to call the man’s wife as a witness to verify these claims, both she and her husband would be entitled to claim the spousal privilege to prevent disclosure of confidential communications.
If the man told his wife in confidence that he had exaggerated the accident and his injuries, they could both still claim the privilege and refuse to disclose such information, despite it being potentially valuable to the defendant’s arguments, and despite the fact that the information might reveal that the plaintiff lied under oath – a criminal act.
If the wife wanted to disclose this information, the plaintiff-husband could claim his own spousal confidentiality privilege and prevent her from disclosing it.
Though the spousal confidentiality privilege in Florida is quite expansive, it is not absolute and there are exceptions. It should not be seen as a protective shield in every case.
Marital communications are only subject to the spousal privilege if they are confidential. The intended recipient of the communication must be the spouse, exclusively. Communications between spouses that were intended to be confidential but which a third party overheard are not privileged (so long as the communicating spouse knew or should have known that the communication was likely to be overheard).
Suppose that a married couple whispers to each other in their own home. This communication is likely to be privileged, even if someone does overhear bits and pieces of the conversation somehow, as they have a reasonable expectation of privacy.
Now, suppose that a married couple is speaking at a normal volume in the middle of a busy park. Though they might not expect someone to be interested in listening to their conversation, it is certainly possible that a third party overhears their conversation. This communication is not likely to be privileged as the court is likely to find that the spouses should have known that a conversation conducted at a normal volume in a busy park would be overheard.
To sum up, marital communications are only privileged if they are made in confidence. Neither spouse may claim the privilege if their communications were reasonably overheard by a third party.
Divorce does not necessarily prevent the spousal privilege from being claimed. Under Florida law, confidential communications between the spouses during the marriage remain subject to the privilege.
Importantly, the marital communications privilege cannot be asserted for communications – even those that are confidential – that occurred between spouses or ex-spouses before the beginning of the marriage, or after the end of a marriage. Confidential communications that occurred during marriage are still privileged, however.
The spousal privilege in Florida protects marital communications only – observations made by a spouse during marriage are not privileged.
For example, if a husband communicates to his wife in confidence about how he was intoxicated when he hit a pedestrian, then that communication would be privileged. On the other hand, if the husband came back on the night of the pedestrian accident obviously intoxicated (i.e. having trouble maintaining his balance, slurring his words, etc.) and the wife observed these behaviors, she could be compelled to testify as to these observations. The spousal privilege would not apply as an observation is not a “communication.”
If you or someone you love has been injured as the result of someone else’s wrongful acts or omissions, seek legal guidance from a skilled Fort Lauderdale personal injury attorney at David I. Fuchs, Injury & Accident Lawyer, P.A..