I never find myself writing about marital privilege. But I do have an interest in modern technology and how it will impact pre-trial discovery and admissibility of evidence. Which takes me to the new 4th Circuit opinion U.S. v. Hamilton.
This case involves the bribery conviction of a former member of the Virginia House of Delegates who also served part-time as an administrator with the Newport News, Virginia public schools system. Basically, the guy pushed for and got a salary from Old Dominion University in exchange for getting them funding for a million dollar program called Center for Teacher Quality and Education Leadership. (FACT: 89% of all “education centers” with titles as goofy and ambiguous as this one are hopelessly corrupt.)
Anyway, a key piece of evidence in the take down of this guy is an email that he writes to his wife about how he is trying to get this salary out of the deal, which he writes from his public school computer. So the question is whether the marital privilege applies because he used his work email account.
For what I think are good reasons, communications between spouses have long been thought to implicate important privacy and confidentiality interests. This has led to a recognition of a marital privilege in both Maryland and federal law that makes communications between spouses presumptively confidential.
But what if it is an email written from a work email address? Well, the court acknowledged private communications between spouses “are generally assumed to have been intended to be confidential” and thus are privileged.” But the court found in prior cases, disclosures made to a stenographer were not privileged and “email has become the modern stenographer.” I’m not sure about that logic.
Certainly important in the decision was the fact that the defendant failed to “take any steps
to protect the emails in question, even after he was on notice of his employer’s policy permitting inspection” of work emails.
You can find the full opinion in U.S. v. Hamilton here.
I don’t know how I feel about this. I know I’d feel awful if this guy beat the rap simply because this email to his wife did not come into evidence. In fact, if I were king – and what a wonderful world it would be – my rule would probably be that all emails between spouses are admissible and that the marital privilege should only be applied to cases where the spouse is being required to testify.
That said, I think the court gets this wrong. People in 2012 use their work email and their personal email accounts interchangeably because it is too burdensome to have to bounce back and forth. If personal email is subject to the privilege, I think an email sent to your spouse from work computer should also be afforded that same privilege.