Honey, You May Have To Testify: The Limits of the Spousal Disqualification In Civil Litigation (the Cosby edition)

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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.

Unlike the spousal privilege, the spousal disqualification in Massachusetts is applicable in both criminal and civil matters. Subject to certain exceptions, the spousal disqualification provides that "neither husband nor wife shall testify as to private conversations with the other." M.G.L. c. 233 sec. 20, cl. 2. Unlike the spousal privilege, the marital disqualification renders testimony concerning the private conversations between spouses inadmissible regardless of whether the spouse wants to testify. There are several reasons for the rule, including the notion that such testimony would be inherently unreliable due to bias, the goal of preserving marital peace, and the desire to preserve the privacy of marital conversations. Despite these straightforward reasons for the spousal disqualification, its application may often seem counterintuitive. For example, the spousal disqualification does not apply to private conversations that occurred between a couple before they were married. Additionally, the spousal disqualification applies only to conversations and does not apply to written communications. Com. v. Szczuka, 391 Mass. 666, 678 n.14, 464 N.E.2d 38, 46 n.14 (1984). Thus, attorneys and parties must be aware that emails and text messages between spouses are not protected from disclosure by the spousal disqualification.

Because the spousal disqualification can be confusing, it is not surprising that its application recently proved difficult when the plaintiffs in a defamation action against Bill Cosby sought to depose his wife of approximately 52 years, Camille Cosby. Mrs. Cosby invoked the Massachusetts spousal disqualification law and moved to prevent her deposition from taking place. A federal magistrate judge first considered the issue by interpreting the Massachusetts spousal disqualification statute as a rule of competency. Viewed through this lens, the magistrate judge held that the spousal disqualification rule only renders a spouse incompetent to testify at trial and therefore would not prevent the plaintiffs from using a deposition "as a tool to discover information gleaned from conversations between Mrs. Cosby and the defendant." In short, the magistrate judge held that Mrs. Cosby could be compelled to provide deposition testimony concerning her private conversations with her husband even if she could not provide the same testimony at trial.

Mrs. Cosby's attorneys promptly objected to the magistrate judge's ruling and the district judge reconsidered the issue. Acknowledging that the issue presented a difficult legal question with little precedent to provide guidance, the district judge overturned the portion of the magistrate judge's ruling that would require Mrs. Cosby to testify at her deposition regarding the substance of her private conversations with her husband. The district court held that the magistrate judge's decision had incorrectly conflated the notion of competency to testify with absolute testimonial disqualification. The district judge then analyzed the specific language of the Massachusetts spousal disqualification statute and determined that the disqualification is not limited to trial testimony only. In particular, the district court carefully considered the statute's language barring a spouse from testifying about a private spousal conversation in "any proceeding, civil or criminal, in court or before a person who has authority to receive evidence." The district judge then looked to Massachusetts case law and procedural rules for guidance on the meaning of "any proceeding" and held that it includes a deposition. As a result, the district judge held that Mrs. Cosby's private spousal conversations are therefore off-limits at her deposition.

The district court's ruling on the spousal disqualification in the Cosby litigation provides helpful guidance on a question that comes up periodically in civil litigation. The ruling that the spousal disqualification applies in depositions is consistent with the language of the statute, common practice, and, as the district judge noted, also "protects marital harmony and the confidentiality of marital communications, which are key policies at the heart of the rule."

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