Spousal Privilege, Illustrated

This is from the arrest warrant affidavit in the case of Kim Williams, the wife of Eric Williams, the former justice of the peace who is suspected of murdering three people in Kaufman County, Texas:

On April 16, 2013 an interview with defendant, Kim Lene Williams was conducted at the Kaufman County Law Enforcement Center. During the interview, Kim Williams confessed to her involvement to the scheme and course of conduct in the shooting deaths of Mark Hasse, Michael McLelland and Cynthia McLelland. Kim Williams described in detail her role along with that of her husband, Eric Williams whom she reported to have shot to death Mark Hasse on January 31, 2013 and Michael and Cynthia McLelland on March 30, 2013. During the interview, the defendant gave details of both offenses which had not been made public.

Kim has a privilege not to testify against Eric. She can waive it, though, and testify about what she saw and heard, including communications made to enable him to commit a crime.

But if her claim that he shot the three to death is based on his telling her about it after it was done, he has a privilege to keep her from testifying about that. She cannot waive that privilege.

So:

He loaded his gun and drove toward the McLellands’ house she can testify to, but doesn’t have to.

He told me, “Honey, this is what I need you to do…” she can testify to, but doesn’t have to.

He told me, “Honey, this is what I did…” she can’t testify to if he says no.

I don’t think the “Furtherance of crime or fraud” exception to the spousal-communication privilege has been widely litigated, but I foresee it getting a thorough workout here.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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16 Responses to Spousal Privilege, Illustrated

  1. ADA says:

    I’m guessing you’ve noticed you posted this twice…

    A few questions on spousal privilege:

    Does spousal privilege ever end? I.E. – upon divorce?
    When technically does SP begin? First date? Marriage?

    Your hypo above “He told me, “Honey, this is what I did…” she can’t tes­tify to if he says no.” – what if she is the driver, he gets out with a gun, she hears gunshots, he gets in car and says “Honey, this is what I did….”

    • Mark Bennett says:

      I hadn’t noticed that. Thanks.

      The spousal-communication privilege only covers communications made during the marriage, but it never ends.

      The testimonial privilege? I’d want to research to be sure, but the text of the rule (Tex. R. Evid. 504) implies that the privilege does not outlast the marriage. On the other hand, it covers conduct before the marriage.

      So if you told your wife before marriage about something bad you had done, you would not have the spousal-communication privilege but she would have the testimonial privilege while you were married.

      As to your last hypo: I don’t know, and I don’t see any Texas caselaw on point. Was the communication made “in whole or in part, to enable or aid anyone to commit or plan to commit a crime or fraud”?

      At first blush I think the answer is “no.”

      But what if the State charges Eric with some other crime occurring after that (for example, tampering with evidence)? The spousal communication might be admissible in the trial of the tampering case, but not of the underlying crime. Or it could be admissible in the trial of the underlying crime because it was made to enable the two to commit a crime, though not that crime.

      Cynically, I suspect that the appellate courts’ answer would be different if the underlying crime were shooting up a stop sign than if it were capital murder.

  2. ADA says:

    Thanks Mark. I’ve been told Eric and Kim have been divorced for years, but I have not confirmed that. I do they were NOT married at the time of the McClelland’s murder.

  3. Thomas Stephenson says:

    Given that she’s in jail, we can safely assume that at least some of her confession would not be covered by spousal communications.

    Here’s a question. Let’s say, in a trial against Eric, the state tries to introduce Kim’s confession. (Assume it falls under a hearsay exception — let’s say it’s being offered for purposes of impeachment.) Would any spousal communications contained in the confession be privileged?

    Also: let’s say that Kim cops a plea in exchange for her testimony against Eric. Could she then invoke the spousal privilege?

    • Mark Bennett says:

      Given that she’s in jail, we can safely assume that at least some of her con­fes­sion would not be cov­ered by spousal communications.

      Why is that not a non sequitur? The affidavit is conclusory.

      Here’s a ques­tion. Let’s say, in a trial against Eric, the state tries to intro­duce Kim’s con­fes­sion. (Assume it falls under a hearsay excep­tion — let’s say it’s being offered for pur­poses of impeach­ment.) Would any spousal com­mu­ni­ca­tions con­tained in the con­fes­sion be privileged?

      Impeachment? They can’t impeach anyone but her with her confession. The problem is the Confrontation Clause, and there is no applicable exception. The only way the confession comes in during Eric’s trial is if she testifies about the same things, and if she testifies then he can block her from talking about spousal communications at all, so she can’t be impeached with the spousal communication.

      Also: let’s say that Kim cops a plea in exchange for her tes­ti­mony against Eric. Could she then invoke the spousal privilege?

      Legally, sure. But waiving the testimonial privilege would likely be a condition of any plea deal, so she might bust her own plea by invoking the testimonial privilege.

      • Thomas Stephenson says:

        Ah, I see. So you’re suggesting that the affidavit that she confessed to her involvement could be false and they’re trying to hang a capital murder charge over her head to convince her to testify against her husband? Makes sense.

        Another question about spousal privilege: can it be invoked selectively? In other words, can the spouse refuse to answer some questions on grounds of spousal privilege but then answer others?

  4. I recently had reason to read Tennessee’s spousal privilege provision. Its pretty funny. You should check it out.

  5. That’s rude! Completely fair, yet rude.

    I was doing some consulting on a project.

    I just want to see a Sedulous Fostering hearing to the community.

    • Thomas Stephenson says:

      I’m going to go ahead and guess that’s a nice way of saying “you may be married in Massachusetts, but you two aren’t married in Tennessee.”

  6. Mike Paar says:

    Not to change the subject (too much), but I’m thinking none of this would have ever occurred had these prosecutors done their job professionally instead of making personal insinuations at trial. I’m actually surprised this type of thing doesn’t happen more often. The way many prosecutors stand up in open court and make statements about the defendant that can only be described as personal attacks and character assassination with no evidence to back up their assertions, and in most instances, little or no rebuke from the judge. Some of the statements said during opening and closing arguments should not be allowed if the judges were fair and interested in justice.

    PS I hate to imagine the lies and the worthless promises made to this woman by investigators. But I’ll bet you one thing and that’s that the interrogation wasn’t videotaped.

  7. Mike Trent says:

    I guess you took some of the insinuations they made at YOUR trial personally, huh, MIKE PAAR?

    What a stupid, stupid comment. I seriously doubt you know a single thing about the record of Williams’ trial, but you overlay your own prejudices on it, despite your utter ignorance, to pronounce that three people are dead because of something two of them did wrong in a trial. What a sick joke. They are dead because a convicted criminal sought revenge. They are dead because they sought justice and the recipient of that justice didn’t like it. They are dead because of HIS wrongdoing, not their own.

    I have seen comments of a similar tenor from you on this blog before, and many of them have been quite plainly moronic, straight out of the tinfoil hat, 9/11-was-an-inside-job and there’s a Face on Mars bible. But none of them have come close to being as breathtakingly offensive and stupid as this one. I have no idea WHO you are, but I know perfectly well WHAT you are: An insensitive idiot. –Oh, did you consider that a “personal attack” or “character assassination”? –Luckily, in this case, I have the evidence to back up that assertion. It came out of your own mouth.

    • Mike Paar says:

      Ahhhh, the “Canadian Jurors” fellow. Hides his hatred for blacks by referring to them as Canadians. Your opinion has no value to anyone but other racists…

  8. Mike Trent says:

    More value than yours, nutcase. Once again demonstrating your ignorance of a situation and subject you know nothing about. Time to retreat to your bunker in your mom’s basement and plot your next move.

  9. Diantha Garrett Brennan says:

    I found all of this very enlightening. Thanks.

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