Honey, You May Have To Testify: The Limits of the Spousal Disqualification In Civil Litigation (A Valentine's Day Blog)

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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).

Civil litigators and their clients often reflexively (and mistakenly) refer to the spousal privilege when addressing the question of discovery from a spouse. 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(a)(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)(criminal defendant married the victim prior to trial so that she could invoke the spousal privilege). The spousal privilege is essentially irrelevant in civil litigation and provides no protection to a spouse wishing to avoid a deposition.

In contrast, the spousal disqualification in Massachusetts is applicable in both criminal and civil matters. The spousal disqualification provides that "a witness shall not testify as to private conversations with a spouse occurring during their marriage." M.G.L. c. 233 sec. 20(b)(1). Unlike the spousal privilege, which may be invoked by a witness in a criminal proceeding, the marital disqualification renders the testimony inadmissible even if the spouses want to testify concerning their private conversations. 14B Mass. Prac. § 10.92. Another key difference is that the disqualification depends on the status of the spouses at the time the communication. In contrast, the spousal privilege can only be invoked if the spouses are married at the time that the testimony is sought. Finally, civil litigators need to understand that the spousal disqualification applies only to conversations. Com. v. Szczuka, 391 Mass. 666, 678 n.14, 464 N.E.2d 38, 46 n.14 (1984). Perhaps courts should rethink this interpretation of the disqualification in light of the prevalence of email and instant messaging to communicate privately today, but lawyers should be aware of the current state of the law.

Based on the foregoing, civil litigators must understand that they may not be able to invoke the spousal disqualification to prevent a spouse from having to testify if the spouse has knowledge of relevant facts independent of private spousal conversations. Similarly, civil litigators considering whether to seek testimony from a spouse need to be aware that any evidence based on private conversations with the party spouse is off limits.

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