Husband and wife privileges (also called spouse's or husband-wife privileges ) are terms used in proof of law to illustrate two privileges separate: the privilege of communication and the right of testimony.
These two types of privileges are based on the policy of encouraging couples harmony and preventing couples from having to condemn, or be punished by, their spouse: the privilege of spousal communication or confidentiality is a privileged form of communication that protects the contents of secret communications between couples during their marriage from disclosure of testimonials, while the privilege of a husband-wife testimony (also called the spouse's disability and spousal immunity) protects the privileged individual from being called upon to testify in a process related to his or her spouse.
Video Spousal privilege
Worldwide
United States
In the United States, federal law dictates requests that are allowed and prohibited in federal courts, while state law cases outline their scope in state courts.
Communication privileges
Privileges of marital and civic communications apply in civil and criminal cases.
Both spouses and couples hold communications privileges of married couples, so may ask for permission to prevent witnesses from witnessing testimonies about secret communications made during marriage.
The privileges of communication begin at marriage, and may be required to protect secret communications between married couples that occur before their marriage. Unlike the privileges of testimonials, privileges of communication persist until the end of marriage, and may be affirmed by a spouse to protect secret communications made during marriage - even after divorce or death.
The privilege of married couples communication should not be done if the couple sues each other or each plantation in a civil case; if one partner has initiated criminal proceedings against another; or in a competence process related to one partner. These three scenarios are identical to those that also apply to limiting husbands' witnessing rights. Two further scenarios apply to defeat the attachment of marital privileges of privilege: if secret communications are made to plot or commit crime or fraud, or if an accused-spouse wants, in criminal proceedings, to testify in their own defense,. In these five cases, the court will not allow the couple to affirm the privilege of blocking the testimony.
Privilege Testimonial
A small number of states apply the privilege of testimony in both criminal and civil cases. For example, under the California Evidence Code ("CEC") Ã,§970, California allows the application of the right of testimony to both civil and criminal cases, and includes the privilege of not giving testimony and also the privilege of not being called as a witness. by a party adversely affecting the couple's interest in the proceedings.
Under general US federal law, the right to a specific husband and wife testimony is held by the witness's partner, not the party-couples, and therefore does not prevent the couple wishing to testify from doing so. The rationale behind this rule is that if a witness-a couple wants to testify against a party-partner, there is no marriage harmony left to be protected through such a witness barrier. The principle of common law is the view in a small part of the US state. The majority of US jurisdictions, however, do not follow US federal general law; in most states, couples, and not spouses, are holders of special marriage certificates.
Particular testimonies of the right to testimony include observations, such as the color of clothing worn by couples on a particular day, as well as communications, such as the content of a party-party telephone conversation.
The witness's partner may use the privilege of a testimony of the events that occurred (1) during the marriage, if the couple is still married; and (2) before marriage if he marries his wife in court during the trial. If, at the time of the trial, the couple is no longer married, the former spouse-witness can testify freely about events that occurred before, after, or even during marriage. The privilege of a husband-wife testimony, in other words, lasts only during the marriage.
Particular testimony of the right to testimony may not be requested if the couple sues each other or belongs to each other in a civil case; if one partner has initiated criminal proceedings against another; or in a competence process related to one partner.
Both rules may be suspended depending on the jurisdiction in the case of divorce proceedings or a child custody dispute, but are suspended in cases where one spouse is accused of a crime against another partner or child of his/her spouse. Courts generally disallow unlucky couples to seek privileges during trials initiated by other spouses, or in cases of domestic violence. Privileges can also be suspended where both partners are joint participants in a crime, depending on the law of jurisdiction.
England and Wales
Privilege Testimonial
Couples, in general, are competent to provide evidence in civil cases, and may be compelled to do so. It was established in part 1 of the 1853 Amendment Act of Proof and extended in the Next Amendment of Evidence Act 1869 for the process which was executed as a result of adultery, the position on the requirement was clarified at Tilley v Tilley (1949).
In criminal cases, however, the general law has long stated that wives are generally incompetent to provide evidence against their husbands (ie for prosecution). This comes from the view of husband and wife as one man, who extend the defendant's protection against self-abuse against their wives. However, a wife may provide evidence for prosecution in which her husband is accused of violence against him.
Section 4 (1) of the 1898 Criminal Procedure Code provides competent witnesses in more circumstances, including providing evidence for defense. Initially it was assumed that the Act also meant the couple could be forced to provide evidence, but the House of Lords disagreed on Leach v R (1912).
Distinguish Leach , the Criminal Court of Appeal held at R v Lapworth (1930) that the couples were witnesses who could be brought forward for prosecution in cases of personal violence, on the basis of that the position of common law before 1898 Act is not affected by the entry of the law. However, in the House of Lords' Hoskyn v Metropolitan Police Commissioner (1978) refuses Lapworth, terminating personal exclusions in violence in favor of a competent partner but not an attractive witness for prosecution. in all cases. In reaching this view, the judge is influenced by the special status of marriage, and the "natural disgust" that the public will feel when seeing a wife giving evidence to her husband in various scenarios.
This only lasted until the entry into force of section 80 of the 1984 Police and Criminal Act, restoring the prosecution's ability to impose the testimony of a defendant's husband or wife (later amended to include a civilian partner) in which the defendant had been charged with "attacking, or injuring or threatening injury" a spouse or person under the age of 16, or a sexual offense against a person under 16 years of age. In addition, under the 1984 Act, defenders can almost always demand testimony, and as provided for in section 53 of the 1999 Criminal Justice and Criminal Justice Act, couples will generally be competent to offer their voluntary testimony. However, where a spouse or civil partner is an active defendant on the charge, they can only testify for a defense (and can not be forced to testify on both sides). There is no privilege for unmarried couples or in civil partnerships, the main source of criticism.
Communication privileges
The existence of communication privileges in general law is debatable. Its existence was assumed by the late nineteenth-century writer, but Sir Wilfred Greene recorded in Shenton Tyler that after examining the subject, he found no evidence to support this view. On the contrary, such privileges are the result of the law, and, in particular, section 3 of the 1853 Amendment Ordinance which states that "no husband shall be compelled to disclose any communication made to him by his wife during marriage, and no wife should be able to disclose any communication made to her by her husband during marriage. "This provision is based on the Commissioner's Second Report on the Common Law Procedure, which refers to the" inviolability of domestic confidence ". It is then repeated in section 1 of the Criminal Procedure Act 1898, which serves to confirm its application to the criminal law.
The provision made in the Act of 1853 is limited - it does not cover third party disclosure or prevent voluntary disclosure - and is asymmetric, as it does not stop the speaker from being forced to reveal any communication, only the listener. Consequently, in the Report on Privileges in the Civil Process published in December 1967, the British Legal Reform Committee recommended its abolition in civil cases, conducted in the Civil Procedure Act of 1968 and for criminal cases in the Police and Criminal Procedure Act 1984 The 1984 law also repealed article 43 (1) of the Matrimonial Causes Act 1965 (evidence for marital relations).
Australia
Under Australian law, both the privileges of general secrecy between married persons and the privilege of spouses not to testify against each other are deemed to have continued with "acceptance" of British law.
On 30 November 2011, the High Court of Australia ruled that there is no privilege in common law. However, a form of husband and wife privilege in the case of criminal courts is preserved by the Proof Law.
Maps Spousal privilege
See also
- Edmunds-Tucker Act - US law 1887 that rejects marriage privileges for polygamy
References
Source of the article : Wikipedia
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