Question about the marital privilege

I was watching a Law and Order. The episode is from the current series
which I don't think is being checked by a legal person as well as
earlier series.

In the episode the police have a wiretap on the phone of a lawyer. He
calls his wife and the wife confesses to a murder. The police arrest
her using her confession.

1) Wouldn't the martial privileged apply. State v. Terry, 2013 N.J.
Super. Lexis 71.

2) Since the guy is a lawyer wouldn't the conversation be covered by
attorney client privilege?

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Roy <montanawolf@outlook.com> wrote in news:v811v4$2vqe0$1@dont-email.me:

Question about the marital privilege

I was watching a Law and Order. The episode is from the current series
which I don't think is being checked by a legal person as well as
earlier series.

In the episode the police have a wiretap on the phone of a lawyer. He
calls his wife and the wife confesses to a murder. The police arrest
her using her confession.

1) Wouldn't the martial privileged apply. State v. Terry, 2013 N.J.
Super. Lexis 71.

There are two different marital privileges. Some states use one, some
states use the other. The idea behind the marital privilege is that
making one spouse testify against another could interfere with the
marital relationship, and that isn't something the law wants to do.

The traditional type of marital priviege can be called the "sit down and
shut up" privilege. One spouse can prevent the other spouse from
testifying.

The other type is where a spouse can refuse to testify against the other spouse, but can testify if she wants to. The idea is that, if one spouse
is willing to testify against the other, the marital relationship is
already shaky so it is unlikely to make things worse.

In your situation one spouse isn't testifying against another. The incriminating evidence is coming from that spouse's own mouth.

2) Since the guy is a lawyer wouldn't the conversation be covered by
attorney client privilege?

If the lawyer really did represent his spouse and they were discussing something for which the lawyer was legally representing his spouse, then
the answer is yes, maybe. If they convinced a judge to issue a search
warrant, and there was legal justification for doing so, even the attorney-client privilege has its limits.

--
Stu
http://DownToEarthLawyer.com

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In misc.legal.moderated, on Fri, 26 Jul 2024 13:47:13 -0700 (PDT), Roy <montanawolf@outlook.com> wrote:

Question about the marital privilege

I was watching a Law and Order. The episode is from the current series

I'll call your TV show and raise you with an episode of Perry Mason.

A rerun, which I finished watchine literally only 30 minutes ago.

In it, he puts a wife on the stand and goes over the rules for her to
testify, says that the husband, the defendant, already waived his
privilege and would she waive it too.

She said Yes, but I won't tell you the rest of the story. I don't want
to ruin it for you. Of course this was California.

which I don't think is being checked by a legal person as well as
earlier series.

In the episode the police have a wiretap on the phone of a lawyer. He

I rmemeber another TV show where lots of people objected to tapping a
lawyer's phone, for reasons related to this***.

calls his wife and the wife confesses to a murder. The police arrest
her using her confession.

1) Wouldn't the martial privileged apply. State v. Terry, 2013 N.J.
Super. Lexis 71.

If they were interviewing or calling the husband to testify, then the
marital privilege would apply .

2) Since the guy is a lawyer wouldn't the conversation be covered by
attorney client privilege?

***And I was going to say something similar about the lawyer-client
privelge, but it occurs to me that in any conversation by a client with
his lawyer on the phone, the client wants it to be covered by the
privilege. Tapping the phone line seems to me equivalent to bugging the meeting room in jails and prisons that are used for talks with one's
lawyer. There must be law on that. If it were permitted and
admissable, how could any defendant ever discuss anything with his
lawyer? Okay, so he's locked up and can't go to the lawyer's office,
but in your case, the wife was free to go see her husband at work. But
what if they bugged his office at work?

Sounds like a can of worms. Do they really tap lawyer's phones?

Did you hear about the two Mexican drug "lords" they arrested today?
One wanted to surrender, and thought it would help himself with regard
to sentencing to turn in another one. So he talked he other guy into
coming with him, on a private plane, and probably didn't tell him the
plane was going to land in New Mexico where the police were waiting!


--
I think you can tell, but just to be sure:
I am not a lawyer.

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"Roy" wrote in message news:v811v4$2vqe0$1@dont-email.me...

Question about the marital privilege

I was watching a Law and Order. The episode is from the current series
which I don't think is being checked by a legal person as well as earlier >series.

In the episode the police have a wiretap on the phone of a lawyer. He
calls his wife and the wife confesses to a murder. The police arrest her >using her confession.

1) Wouldn't the martial privileged apply. State v. Terry, 2013 N.J. Super. >Lexis 71.

2) Since the guy is a lawyer wouldn't the conversation be covered by
attorney client privilege?

I don't see how marital privilege per se applies to the wiretap. Assuming
the wiretap was legal and was authorized by a judge, the wiretap reveals the wife confessing to the crime. The husband did not provide testimony against her. She essentially provided evidence against herself while she happened
to be talking to her husband.

The one possible exception, to your second point, might be if the wife had reason to believe that she was talking to her husband as her lawyer and they had a lawyer-client relationship. But I think she would have to prove that they had such a relationship through correspondence or prior text messages
or some other basis, such as her saying during the call something like "what
I am about to tell you is privileged and is protected by our client-attorney privilege."

In general, the mere fact that one talks to an attorney does not establish a lawyer-client relationship. There would have to be some kind of written or oral agreement between them that they had such a relationship, or she'd have
to say something to that effect during the call. Otherwise, the normal assumption would be that she was speaking to him as her husband and not as
her attorney, in which case I think the call could indeed be used against
her.

--

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On 7/26/2024 3:29 PM, micky wrote:

In misc.legal.moderated, on Fri, 26 Jul 2024 13:47:13 -0700 (PDT), Roy <montanawolf@outlook.com> wrote:

Question about the marital privilege

I was watching a Law and Order. The episode is from the current series

I'll call your TV show and raise you with an episode of Perry Mason.

A rerun, which I finished watchine literally only 30 minutes ago.

In it, he puts a wife on the stand and goes over the rules for her to testify, says that the husband, the defendant, already waived his
privilege and would she waive it too.

She said Yes, but I won't tell you the rest of the story. I don't want
to ruin it for you. Of course this was California.

which I don't think is being checked by a legal person as well as
earlier series.

In the episode the police have a wiretap on the phone of a lawyer. He

I rmemeber another TV show where lots of people objected to tapping a lawyer's phone, for reasons related to this***.

calls his wife and the wife confesses to a murder. The police arrest
her using her confession.

1) Wouldn't the martial privileged apply. State v. Terry, 2013 N.J.
Super. Lexis 71.

If they were interviewing or calling the husband to testify, then the
marital privilege would apply .

...

In the cited case above the court ruled the conversation between spouses
was protected. The exceptions to the protection do not cover wiretaps.

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On Fri, 26 Jul 2024 13:47:13 -0700 (PDT), Roy <montanawolf@outlook.com>
wrote:

Question about the marital privilege

I was watching a Law and Order. The episode is from the current series
which I don't think is being checked by a legal person as well as
earlier series.

In the episode the police have a wiretap on the phone of a lawyer. He
calls his wife and the wife confesses to a murder. The police arrest
her using her confession.

1) Wouldn't the martial privileged apply. State v. Terry, 2013 N.J.
Super. Lexis 71.

2) Since the guy is a lawyer wouldn't the conversation be covered by
attorney client privilege?

It is a fictional TV show. 1. If a third party is part of the discussion
then there is no marital privilege. 2. He may be an attorney at law, but
he can't be her attorney at law because he has a conflict of interest.

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On 7/29/2024 6:51 PM, Sam wrote:

On Fri, 26 Jul 2024 13:47:13 -0700 (PDT), Roy <montanawolf@outlook.com> wrote:

Question about the marital privilege

I was watching a Law and Order. The episode is from the current series
which I don't think is being checked by a legal person as well as
earlier series.

In the episode the police have a wiretap on the phone of a lawyer. He
calls his wife and the wife confesses to a murder. The police arrest
her using her confession.

1) Wouldn't the martial privileged apply. State v. Terry, 2013 N.J.
Super. Lexis 71.

2) Since the guy is a lawyer wouldn't the conversation be covered by
attorney client privilege?

It is a fictional TV show. 1. If a third party is part of the discussion then there is no marital privilege. 2. He may be an attorney at law, but
he can't be her attorney at law because he has a conflict of interest.

#1. I didn't see anything in the description that even suggests there
was a third party to the discussion.

#2. He can be her attorney. I don't see anything in the above
description about a conflict of interest. Mind you, the old adage still applies: the lawyer who represents himself has a fool for a client. This
would IMAO apply to one spouse being the lawyer for the other.

--
I do so have a memory. It's backed up on DVD... somewhere...

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Barry Gold <barrydgold@ca.rr.com> wrote in
news:v89q61$mp8c$1@dont-email.me:

On 7/29/2024 6:51 PM, Sam wrote:

On Fri, 26 Jul 2024 13:47:13 -0700 (PDT), Roy
<montanawolf@outlook.com> wrote:

Question about the marital privilege

I was watching a Law and Order. The episode is from the current
series which I don't think is being checked by a legal person as
well as earlier series.

In the episode the police have a wiretap on the phone of a lawyer.
He calls his wife and the wife confesses to a murder. The police
arrest her using her confession.

1) Wouldn't the martial privileged apply. State v. Terry, 2013 N.J.
Super. Lexis 71.

2) Since the guy is a lawyer wouldn't the conversation be covered by
attorney client privilege?

It is a fictional TV show. 1. If a third party is part of the
discussion
then there is no marital privilege. 2. He may be an attorney at law,
but he can't be her attorney at law because he has a conflict of
interest.

#1. I didn't see anything in the description that even suggests there
was a third party to the discussion.

#2. He can be her attorney. I don't see anything in the above
description about a conflict of interest. Mind you, the old adage
still applies: the lawyer who represents himself has a fool for a
client. This would IMAO apply to one spouse being the lawyer for the
other.

A lawyer spouse can certainly represent the other spouse. There is no prohibition against that. Even if there were a conflict of interest
(being a spouse doesn't create a conflict of interest), the conflict can
be waived by the client.

--
Stu
http://DownToEarthLawyer.com

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