In my experience, when people are arrested they tend to fall victim to a condition I affectionately call, “diarrhea of the mouth.” Suddenly, they want to talk to everybody about what happened and they incorrectly assume that what they’re saying is privileged information.
It’s important to remember when talking to your parents, your siblings or your best friend that whatever you tell them is likely, not privileged information and can be used against you in Court.
Exceptions to the Marriage Privilege
In general, information shared between a husband and wife is considered privileged, however, there are a few exceptions. For example, if the wife is a victim of domestic violence, the privilege will likely not prevent the wife from having to testify against her husband.
There are a few ways around this. Let’s assume that you and I are married and we get into a physical fight. You threw the first punch and I hit back in self-defense but you call the police and they arrest me for domestic violence.
Or perhaps, as a joke, I flick your ear and you call the police and tell them that I punched you in the stomach 23 times. If called to testify in either case, you could claim that you refuse to talk because, if you testified, you could incriminate yourself and be prosecuted. Therefore, you would invoke your 5th Amendment right to remain silent. In the first case, you could be prosecuted for throwing the first punch. In the second case, you could be prosecuted for giving the law enforcement officers incorrect information.
It’s always been the rule that if you are legally common-law married in a state that allows common law marriage, you’re still married even if you move to another state that doesn’t.
I worked on one case where my client and his wife were common-law married in Colorado. The husband was subsequently arrested in Nevada, and the prosecution intended to call his “girlfriend” to testify against him. We successfully argued that he was common law married in Colorado before their move to Nevada, and, as his wife, she could not be compelled to testify against her husband. This took the prosecution by surprise because Nevada does not have common law marriage.
When Dealing with Kids
When I use the word “kids,” I’m really talking about 18-25-year-olds in this case. A lot of younger clients will bring their parents with them to a consultation, and I have to let them know that by having their parents present, they could be waiving their attorney-client privilege.
I normally have two meetings with young adult clients; the first is to explain how the process works. I don’t mind if parents sit in on that meeting because no confidential information is exchanged. However, once we start talking about the specific situation, I ask parents to leave the room.
It’s important to remember that minors are always covered by attorney-client privilege even when a parent is present. The same privilege is in effect when dealing with clergy members, therapists or physicians as well.
If you’re in the middle of a legal situation and want to know more about what counts as privileged information, call our office today at (720) 999-9506 to set up a free consultation.