No Spousal Privilege in Pennsylvania Criminal Child-Abuse Cases

Filed under: Criminal Law, News Tags: by Steven F. Fairlie @ March 3, 2012

A Pennsylvania judge has ruled that incriminating text messages between a husband and wife may be used as evidence in the woman’s child abuse trial.

In Commonwealth v. Hunter, the defendant was charged with aggravated assault, endangering the welfare of a child, simple assault and criminal conspiracy to endanger the welfare of a child after her 4-year-old stepson suffered a cardiac arrest and was subsequently found by medical workers to have a bruise on his lower back, a dilated pupil, a subdural hemorrhage and brain damage.

The defendant’s husband, the child’s biological father, was charged in a separate criminal case. The crux of the of the case involved text messages between the husband and wife during the two days prior to the child being taken to the hospital by emergency personnel. These text messages contained “extremely damaging evidence” because they detailed the child’s health and condition. As such, the defendant argued that they should be protected communications under the spousal communications privilege, which would preclude the text messages from being admitted into evidence.

Judge Richard Walsh of Franklin County ruled the Pennsylvania spousal communications privilege does not apply in criminal child abuse cases. The judge held that the defendant had no expectation of privacy in the texts because they would have been admissible in hearings before Children and Youth Services, which waives marital privileges in child abuse proceedings.

The spousal communication privilege is an ancient legal doctrine dating back to 1824 with the original purpose of preserving marital harmony by preserving marital confidences. In states that in a criminal proceeding, neither a husband nor wife is permitted to testify to confidential communications made by one to the other unless the privilege is waived. As with all rules, exceptions exist. Where a spouse seeks to avoid testifying about facts that he or she observed, where the case involves certain kinds of domestic violence, and now, at least in one Court, when the case involves child abuse, the privilege is not applicable.

Notably, Pennsylvania was one of only seven U.S. jurisdictions that had not repealed the communications privilege in all child abuse cases.


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