The question of whether a spouse may be called as a witness in a civil case recently came up in the civil litigation surrounding the sexual assault allegations against comedian Bill Cosby. People often reflexively (and mistakenly) think that the issue is governed by the spousal privilege. In fact, in Massachusetts the spousal privilege is only applicable in criminal cases where one spouse is the defendant. M.G.L. c. 233 sec. 20, cl. 1. In those circumstances, the spousal privilege can be invoked by a witness to avoid being compelled to testify against his or her spouse. Com. v. Szerlong, 457 Mass. 858, 865 (2010). The testifying spouse can also choose to waive the privilege if the spouse wants to testify. Because the spousal privilege is applicable only in criminal proceedings, it is essentially irrelevant in civil litigation.
With the explosion of social media over the last decade, evidence from Facebook, Twitter, MySpace, and Instagram is now routinely used in divorce cases, shedding light upon critical factors such as a party's spending habits, irresponsible behavior, or failure to make a good faith effort to find a job. More often than not, an avid social media presence is considered a risk to a divorcing litigant, as anything a party posts online can usually be retrieved and used against him or her in a potentially damaging manner. As a result, divorce attorneys typically advise their clients to refrain from social media altogether during a contested family law proceeding.
Massachusetts is one of the few states that has not adopted some version of the Federal Rules of Evidence. The rules of evidence in Massachusetts are not codified, meaning that evidentiary issues are governed by common law. In 1982, the Supreme Judicial Court ("SJC") rejected a proposed codification of Massachusetts evidence law, yet encouraged lawyers to cite to the "proposed rules." Lawyers had to understand case law in order to know the evidentiary rules that apply in Massachusetts, as well as be familiar with the federal rules of evidence and the "proposed rules."
In business litigation, the question of whether a party's spouse is fair game for a deposition often comes up. Sometimes, the question arises simply because a lawyer wants to demonstrate the willingness to "take the gloves off." Other times the issue arises because the spouse may be one of the only people likely to have knowledge of facts that could be central to the case. Regardless of the reason, Massachusetts lawyers should be aware of the applicable rules and the distinction between the spousal privilege and the spousal disqualification, which are set forth at M.G.L. c. 233 sec. 20(a) and (b).