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In Florida a career felon, who is a complete stranger to my son, killed my son. He is being prosecuted for this crime in a state court in Florida. There are two witnesses. One of them is the the girlfriend of the criminal defendant, who saw what happened but did not participate in the crime. While he’s in jail awaiting arraignment and court, the criminal defendant and his girlfriend who is a witness get married for sole purpose of avoiding her being required to testify.

Is this valid? Will it work on the defense's side? And will all her recorded statements before marriage be useable and valid in court for prosecution for conviction?

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    by "the accused girlfriend." did you mean that she was also accused of having some part in the crime, or did you mean "the accused's girlfriend." that is, that she was just the girlfriend of the accused felon? Also, if the two had an existing romantic relationship, it is debatable to assume that the marriage was solely to avoid testifying. – David Siegel Feb 8 at 0:22
  • @DavidSiegel Good point. If the girlfriend is accused of a crime, she would forfeit the federal privilege. If she is not accused of a crime and married the criminal defendant, she could use the spousal testimonial privilege in a federal criminal prosecution. – ohwilleke Feb 8 at 0:46
  • @DavidSiegel: It's still reasonable to consider that the timing of the marriage relates to the court case; even if they had always ended up marrying each other. – Flater Feb 8 at 7:39
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    I agree, this is horrible. However, calling the spouse as a witness should be expected to be counterproductive: they rushed a marriage to try to invoke the protection. This witness may well be willing to commit perjury. – Joshua Feb 8 at 16:36
  • Op it appears you asked your question, thenaccidentally created a second account. If you log in with the original credentials, you will be able to write comments to this question (and to any question actually, as that original account now has plenty of reputation). – Harper - Reinstate Monica Feb 9 at 0:52
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Short Answer

SIMPLIFIED AND UPDATED BASED ON ADDITIONAL INFORMATION IN THE QUESTION:

The marriage is valid, but their marriage will not allow the girlfriend to refuse to testify as a witness in the case.

She can be compelled to testify against him under oath, but does not have to testify about the confidential communications that they have with each other after they get married (e.g. if he confesses to her while there are having a private conversation after they are married, while he is outside the jail, while he is meeting with his lawyer).

All of her recorded statements made at any time, and everything that happens before they are married are available to be used as evidence at trial (assuming no other rule of evidence excludes it).

Only confidential statements made between the wife and the criminal defendant while they are married can be excluded based upon their spousal status.

END UPDATE

Long Answer

This question is about the marital privilege, which is created by statute or case law. There are actually two separate marital privileges that are analyzed separately.

Also, I'm simplifying this answer to limit it to the "criminal case with a jury trial" situation. The rules are more complicated when it is not a criminal case, and in a bench trial as opposed to a jury trial, all references to the jury would instead be to the judge. But, almost everyone facing murder charges chooses a trial by jury instead of a bench trial, as is their right.

The Husband-Wife Confidential Communications Privilege

The stronger marital privilege applies to confidential communications made to a defendant's spouse during the marriage, which the defendant can insist not be presented to the jury. It doesn't matter if the spouse is still married to the defendant at the time of trial. The main exception to this privilege is for crimes committed against the spouse who is testifying, or to a crime committed against a child of either spouse.

This privilege does not apply to anything that the defendant says to the girlfriend prior to getting married and does not apply to statements made by the defendant to the spouse when other people were present, and is similar to the attorney-client privilege or the parishioner-clergy privilege. In Florida this privilege, created by statute, reads as follows:

Florida Evidence Code Section 90.504 Husband-wife privilege.—

(1) A spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife.

(2) The privilege may be claimed by either spouse or by the guardian or conservator of a spouse. The authority of a spouse, or guardian or conservator of a spouse, to claim the privilege is presumed in the absence of contrary evidence.

(3) There is no privilege under this section:

(a) In a proceeding brought by or on behalf of one spouse against the other spouse.

(b) 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.

(c) In a criminal proceeding in which the communication is offered in evidence by a defendant-spouse who is one of the spouses between whom the communication was made.

In many states (and in federal court), this Husband-Wife privilege for confidential communications has an exception for cases where the husband and wife jointly carry out a crime or fraud. But, Florida does not have this exception to the Husband-Wife privilege for confidential communications in state court criminal cases.

In federal criminal cases, the case law under Federal Rule of Evidence 501 creates a substantially similar privilege for the purposes of this question. Federal Rule of Evidence 501 is as follows:

The common law — as interpreted by United States courts in the light of reason and experience — governs a claim of privilege unless any of the following provides otherwise:

the United States Constitution;

a federal statute; or

rules prescribed by the Supreme Court.

But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.

Since this is a criminal case, the last sentence of Federal Rule of Evidence 501 does not apply. There are also not any rules regarding this topic that have actually been prescribed by the U.S. Supreme Court. And, neither the U.S. Constitution nor any federal statute creates a husband-wife or spousal testimonial privilege.

So, this issue is governed in federal court by "The common law — as interpreted by United States courts in the light of reason and experience." The relevant common law rules apply nationwide, although different federal court of appeals circuits may apply them slightly differently when the U.S. Supreme Court hasn't supplied a clear rule.

The Spousal Testimonial Privilege

The weaker marital privilege (sometimes called the spousal testimonial privilege) in many states, which is similar to the 5th Amendment right of a criminal defendant not to testify at trial, is a criminal defendant's right to prevent his current wife (but not a former spouse) from testifying against him at trial on any matter whatsoever, regardless of whether it relates to something that happened during the marriage or not. This marital privilege often has many exceptions for serious crimes and domestic violence in jurisdictions where it applies.

In the federal courts, however (pursuant to case law developed under Federal Rule of Evidence 501), this weaker privilege belongs to the spouse called as a witness rather than to the criminal defendant. The spouse of a criminal defendant isn't required to testify against a current spouse in federal criminal prosecutions, but the spouse and not the criminal defendant gets to decide if the spouse will refuse to testify.

There may be exceptions to the federal spousal testimonial privilege in cases where one spouse is accuses of a crime against the spouse or a child of one of the spouses, where they are joint participants in a crime, or where the competency of the criminal defendant is at issue (see Wikipedia). The only exceptions which might plausibly apply in a federal criminal trial are if the criminal defendant is the father of your son, or if the criminal defendant and his girlfriend whom he marries were joint participants in the crime, neither of which seems likely to be the case here.

In Florida, the weaker marital privilege also known as the spousal testimonial privilege cannot be asserted in state court criminal prosecutions but may be asserted in federal court criminal prosecutions. (See, e.g., here).

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    Since the wife witnessed the act personally, it sounds like the spousal testimonial privilege is more pertinent to this case than the confidential communication privilege, although I imagine they would have talked about the incident as well. – Barmar Feb 8 at 16:33
  • @Barmar I totally agree. – ohwilleke Feb 9 at 20:38
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According to https://www.baezlawfirm.com/can-your-spouse-be-forced-to-testify-against-you/ Section 90.504 of Florida’s Evidence Code includes the privilege to exclude "marital communications" from the testimony of a spouse, but does not include the "testimonial privilege" which Federal common law and the laws of many US states do include, that permits one spouse not to testify against the other.

See The Wikipedia article 'Spousal Privilage" for more details on these two privilages and their origin, and how they differ in various US jurisdictions (and in other sections, elsewhere in the world).

So the situation, as described in the question, would not arise -- such testimony would not be blocked by the marriage.

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    We actually don't know from the question if the criminal case is in state court or is in federal court. It is very likely in state court, but there are a variety of federal homicide charges (e.g. murder of a postal worker) that could conceivably apply. – ohwilleke Feb 8 at 0:06
  • @ohwilleke True: I didn't think of that. – David Siegel Feb 8 at 0:08
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At the federal level, this is covered by FRE 501, the privilege rule, specifically the spousal testimonial privilege which permits a witness to refuse to testify against his or her spouse. This privilege is not limited to events that a person witnesses while married to a defendant; it is limited to testimony that would be given while the witness is married to the defendant. This could be the source of the belief that marrying a witness would work.

The Florida-specific version of this rule is here. Under §90.501, the only privilege to refuse to testify is one specified by statute or the Constitution of Florida of the US -- that is, common law privileges are not recognized in Florida. The Florida privilege only pertains to communication during the marriage ("he told me he murdered your son"), and not testimony in general ("I saw him murder your son").

  • So you are saying that (in Florida, in a state court) there is no privilege if the wife witnesses the murder, even if it occured during the marriage? (I realise the o/p has specified that it occured before the marriage.) Does this mean the Attorney General can issue a subpoena to compel the wife to give evidence for the prosecution? Or does it mean that the wife is competent to give evidence, at her option, but that she cannot be compelled to do so by the AG? – Ed999 Feb 10 at 13:20
  • Yes, there is no spousal privilege conveyed through competency, so the wife could be compelled. – user6726 Feb 10 at 14:49
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Court of Appeal decision, UK, 2003 -

Not applicable in a case in Florida's state court, but the following statement is published in England by the public prosecutor's office (CPS), as part of their guidance on prosecuting criminal cases in similar circumstances -

There is no power to prevent the marriage between a prisoner on remand and a witness for the prosecution, even if this might make the spouse a non-compellable witness for the prosecution in the pending trial.

This is a legal consequence of a Court of Appeal decision in a fairly recent case heard in London -

R (CPS) v Registrar-General of Births, Deaths and Marriages [2003] Q.B. 1222, CA (Civ. Div.)

In this 2003 case, the UK public prosecutor applied to the Court of Appeal for an order requiring a public official, the Registrar of marriages, to refuse to allow the marriage of a man who was in custody awaiting trial, and who proposed to marry a prosecution witness in the case.

The court said there was no legal power to refuse the accused the necessary marriage licence (required in England for a civil ceremony, i.e. one performed not in a church but by a public Registrar). He presumably proposed to marry in whatever jail he was on remand in whilst awaiting trial.

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