Note: post was originally in 2012. It has been updated in November, 2018 to discuss a new martial privilege case, Sewell v. State, now pending before the Maryland Court of Appeals with a decision coming any day now.
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 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 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 takedown 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.