Florida Husband & Wife Evidentiary Privilege
Under Florida law, the husband-wife privilege provides a spouse with the right, both during and after the marital relationship, to refuse to disclose and to prevent another person from disclosing communications that were intended to be made in confidence between the spouses while they were husband and wife Fla. Stat. § 90.504, Mosley v. State, 46 So. 3d 510.
The privilege may be claimed by either spouse or by a guardian or conservator of a spouse Fla. Stat. § 90.504, Mosley v. State, 46 So. 3d 510. The authority of a spouse, guardian, or conservator to claim the privilege is legally presumed in the absence of contrary evidence Fla. Stat. § 90.504, State v. Grady, 811 So. 2d 829.
Scope of Protected Communications
To be protected, the confidential communication must be made by one spouse to the other during a lawful marriage.
Temporal Boundaries: Communications made prior to the marriage are not confidential and do not receive protection, even if the parties subsequently marry Pagan v. State, 29 So. 3d 938.
Nature of the Communication: The privilege applies specifically to communications, which are limited to spoken or written statements, signs, or gestures 1 LN Practice Guide: FL Civil Discovery 2.26, 2.26 Establish Applicability of Statutory Privilege.
Statutory Exceptions and Limitations
Florida law establishes specific situations where the husband-wife privilege is completely inapplicable. Under Fla. Stat. § 90.504, there is no privilege:
In a proceeding brought by or on behalf of one spouse against the other spouse Fla. Stat. § 90.504, Mosley v. State, 46 So. 3d 510.
In a criminal proceeding in which one spouse is charged with a crime committed at any time against the person or property of the other spouse, or the person or property of a child of either spouse Fla. Stat. § 90.504, Mosley v. State, 46 So. 3d 510. For example, the privilege does not protect a defendant's admissions to a spouse when the defendant is charged with committing a crime against that spouse's child McDermott v. State, 360 So. 3d 1213.
In a criminal proceeding in which the communication is offered into evidence by a defendant-spouse who is one of the spouses between whom the communication was made Fla. Stat. § 90.504, State v. Grady, 811 So. 2d 829.
Waiver and Other Limitations
The husband-wife privilege is subject to further limitations regarding conduct, expectations of privacy, and waiver:
Non-Communicative Conduct: The privilege protects only confidential communications and does not preclude a spouse from providing other kinds of testimony or evidence
Observations, perceptions, and acts—unless specifically intended as a communication—are not protected 1 Florida Evidence Courtroom Manual § 1, COMMENTARYExpert Source, 1 LN Practice Guide: FL Civil Discovery 2.26, 2.26 Establish Applicability of Statutory Privilege.Expert Source. Florida law does not possess a spousal testimonial privilege that would keep a spouse off the witness stand entirely or prevent them from testifying to non-confidential matters
Expectation of Privacy: For a marital communication to be protected, the spouses must have had a reasonable expectation of privacy at the time the communication took place Boyd v. State, 17 So. 3d 812.
Voluntary Waiver:
A person waives the privilege if they (or their predecessor while holding the privilege) voluntarily disclose or consent to the disclosure of any significant part of the matter or communication, or make the communication when they do not have a reasonable expectation of privacy Mosley v. State, 46 So. 3d 510, Fla. Stat. § 90.507. This waiver rule does not apply if the disclosure itself is a privileged communication Mosley v. State, 46 So. 3d 510, Fla. Stat. § 90.507. While the privilege belongs to both spouses and can be asserted by either, it can be waived by one spouse only on his or her own behalf, and not on behalf of the other spouse 1 Florida Evidence Courtroom Manual § 1, COMMENTARYExpert Source. Furthermore, repeating the substance of the communication to a third party does Support Proceedings: Secondary authorities suggest that the husband-wife privilege is also inapplicable to proceedings involving the enforcement of support
In conclusion, Florida's husband-wife privilege strictly protects confidential, communicative expressions made between spouses during a lawful marriage, and this protection persists even after the marriage ends. However, the privilege is limited to actual communications rather than observed conduct, requires a reasonable expectation of privacy, can be waived voluntarily, and is completely barred by statute in intra-spousal disputes, cases involving crimes against a spouse or child, or when offered by a defendant-spouse.
Applicability of the Privilege to Physical Conduct and Observations
The marital communication privilege does not automatically protect all information known to a spouse by virtue of the marriage. In Kerlin v. State, 352 So. 2d 45, the Florida Supreme Court addressed whether the privilege extends to a spouse's observation of the other spouse's criminal actions Kerlin v. State, 352 So. 2d 45. The Court, referencing the historical rationale of promoting familial harmony originally articulated in Mercer v. State, noted that the privilege generally encompasses information obtained by reason of the marriage relation which would not have been known but for the confidence growing out of the marriage Kerlin v. State, 352 So. 2d 45. However, the Court distinguished between such confidential communications and facts acquired independently of the marital relation, noting that a spouse may testify to facts that do not involve the confidence growing out of the marriage Kerlin v. State, 352 So. 2d 45.
The Exception for Crimes Against a Child of Either Spouse
Fla. Stat. § 90.504 provides a strict statutory exception to the marital privilege in criminal proceedings where a spouse is charged with a crime committed against the person or property of the other spouse, or the person or property of a child of either spouse Hill v. State, 846 So. 2d 1208, State v. Brown, 2019 Fla. Cir. LEXIS 17560, Fla. Stat. § 90.504. Florida courts have strictly applied this exception in the following contexts:
Homicide of a Child: In Hill v. State, 846 So. 2d 1208, a mother was charged with two criminal counts related to the death of her daughter Hill v. State, 846 So. 2d 1208. Because the criminal proceeding involved the death of the parties' child, the court held that the marital communication privilege did not exist for communications relating to the homicide counts Hill v. State, 846 So. 2d 1208.
Sexual Abuse of a Child: In State v. Brown, 2019 Fla. Cir. LEXIS 17560, a defendant argued that his recorded conversation with his wife did not fall under the Section 90.504(3)(b) exception because there were no criminal charges actively pending against him at the exact time the conversation was recorded State v. Brown, 2019 Fla. Cir. LEXIS 17560. The court rejected this argument as meritless, holding that the statutory exception plainly applies to criminal proceedings where a spouse is charged "at any time" with a crime against a child of either spouse State v. Brown, 2019 Fla. Cir. LEXIS 17560. Because the defendant was subsequently charged with sexual activity with a child and battery on a child, the recorded conversation was deemed admissible State v. Brown, 2019 Fla. Cir. LEXIS 17560.
Communications Intended for Delivery After Death
The timing and intent surrounding a communication are critical to determining whether the privilege attaches. In State v. Stewartson, 443 So. 2d 1074, the court examined whether a suicide note written by a wife to her husband just before she shot herself in the chest fell within the marital privilege State v. Stewartson, 443 So. 2d 1074. The state sought to introduce the note in a subsequent prosecution of the wife for theft and forgery because the letter contained alleged admissions State v. Stewartson, 443 So. 2d 1074. While the trial court granted a motion in limine to exclude the letter, the appellate court highlighted the unique legal question of whether a communication written during the marriage, but intended to be received after the spouse's death, retains the privilege, particularly when the communication is intercepted by law enforcement State v. Stewartson, 443 So. 2d 1074.
Expectation of Privacy and Overheard Communications
A communication is only privileged if it was "intended to be made in confidence" between the spouses Fla. Stat. § 90.504, Yokie v. State, 773 So. 2d 115. Under Florida law, marital communications are presumed confidential, but this presumption can be rebutted by the circumstances under which the message was delivered Yokie v. State, 773 So. 2d 115. For example, in Yokie v. State, 773 So. 2d 115, the trial court found that the defendant knew, suspected, or believed that a third party was listening to his conversation with his spouse Yokie v. State, 773 So. 2d 115. Because the defendant lacked a reasonable expectation of privacy, the court held that he had no intent for the conversation to be private and privileged, rendering the communication unprotected Yokie v. State, 773 So. 2d 115.
Procedural Mechanisms for Asserting the Privilege
Because non-party spouses face the choice of either complying with a disclosure order or risking contempt, Florida courts permit unique procedural avenues to challenge adverse privilege rulings. In Hill v. State, 846 So. 2d 1208, the court recognized that accepting petitions for writ of certiorari is the only practical way for non-party spouses to defend their marital privilege short of risking a contempt citation, which is "too great a price" to require them to pay Hill v. State, 846 So. 2d 1208.
In summary, Florida courts strictly construe the husband-wife privilege in accordance with Section 90.504, denying its application in cases involving crimes against a child of either spouse, and denying protection to communications where the transmitting spouse lacks a subjective and objectively reasonable expectation of privacy.
Codes | Florida
Cases | Florida | Supreme Court of Florida | Jul 15, 2009
Cases | Florida | Court of Appeal of Florida, Second District | Mar 21, 2002
1 Florida Evidence Courtroom Manual § 1, COMMENTARYExpert Source
Treatises | Florida
Cases | Florida | Supreme Court of Florida | Sep 30, 2009
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