On
marital privilege


Marital Privilege

What Is The Marital Privileged Communication Rule?
      Suggested Answer:
      1. The husband or the wife,
      2. During or after the marriage,
      3. Cannot be examined
      4. Without the consent of the other
      5. As to any communication
         a. received in confidence
         b. by one from the other
         c. during the marriage
      6. Except
         1) In a civil case by one against the other, or
         2) In a criminal case committed by one
            a) against the other or
            b) the latter's direct descendants or descendants.
               (Sec.24 (a). Rule 130 ROC

Requisites For Marital Privilege To Apply
1. There was a valid marital relation
2. The privilege is invoked with respect to a confidential communication
   between the spouses during said marriage
3. The spouse against whom such evidence is being offered has not
   given his or her to such testimony

Note: The privilege cannot be claimed with respect to communications
made prior to the marriage of the spouse.

The privilege on principle applies to any form of confident disclosure.
Usually this will be a communication in words but it may also include
conduct.

Marital communications are presumed to be confidential but the
presumption may be overcome by proof that they were not intended to
be private.

Since the confidential nature of the communication is the basis of
the privilege, the same cannot be invoked where it was not intended to
be kept in confidence by the spouse who received the same, as in the
case of a dying declaration of the husband to his wife as to who was
his assailant, which communications was obviously intended to be
reported to the authorities.

The privilege is lost if the communication is overheard or comes into
the hands of a third party, whether legally or not, by reason of the
fact that while the spouse is covered by the prohibition, such third
party is not and, consequently, can testify thereon. It is necessary,
however, that there was no collusion with or voluntary disclosure by
either spouse to the third person, otherwise the latter becomes an
agent of the spouse and would thereby be covered by the prohibition.

Exceptions To Marital Privilege
1. That the case in which the husband or the wife is called to be
   examined is not a civil case instituted by one against the other.
2. That it is not a criminal case for a crime committed by one against
   the other.

Disqualification By Reason of Marriage vs. Marital Privilege 
1. Disqualification By Reason of Marriage
   Can be invoked only if one of the spouses is a party to the action.

   Marital Privilege
   Can be claimed whether or not the spouse is a party to the action.

2. Disqualification By Reason of Marriage
   Applies only if the marriage is existing at the time the testimony
   is offered.

   Marital Privilege
   Can be claimed even after the marriage has been dissolved.

3. Disqualification By Reason of Marriage
   Constitutes a total prohibition against the spouse of the witness.

   Marital Privilege
   Applies only to confidential communications between the spouse.

The privilege in principle, belongs to the communicating spouse not
to the other one.

Even if the communication between the spouse who is a party to the
action can still prevent the other spouse from testifying against him
under the marital disqualification rule.

Even if the spouse who is a party to the action does not object to the
other testifying therein, thus waiving the marital disqualification,
he can still prevent the disclosure by said spouse-witness of
confidential communications covered by the privilege.

Conspiracy between spouses to commit a crime is not covered by the
privilege since it is not the intention of the law to protect the
commission of a crime.

This does not apply when spouses are living separately and there is
an active hostility. But if there is a chance to reconcile, then this
privilege will apply.

The distinctions between the marital disqualification rule and the
marital privileged communications rule are the following:
a. The marital disqualification rule applies to any fact while the
   marital privileged communications rule refers only to confidential
   communications made during the marriage.
b. The marital disqualification rule is claimable only during the
   marriage WHILE the marital privileged communications rule is
   claimable during or after the marriage.


Bar Examination 1998
C is the child of the spouses H and W. H sued his wife
W for judicial declaration of nullity of marriage under
Article 36 of the Family Code. In the trial, the
following testified over the objection of W: C, H and
D, a doctor of medicine who used to treat W. Rule on
W's objections which are the following:

      1. H cannot testify against her because of the rule on
          marital privilege; [1%]
      2. C cannot testify against her because of the
          doctrine on parental privilege; and [2%]
      3. D cannot testify against her because of the
          doctrine of privileged communication between
          patient and physician. [2%]

      Suggested Answer:
      1. The rule of marital privilege cannot be invoked in the
         annulment case under Rule 36 of the Family Code because it
         is a civil case filed by one against the other,
         (Sec.22 Rule 130 Rules of Court)
     
      2. The doctrine of parental privilege cannot likewise be invoked
         by W as against the testimony of C, their child. C may not be
         compelled to testify but is free to testify against her.
         (Sec.25 Rule 130 Rules of Court/Art.215 Family Code)

      3. D, as a doctor who used to treat W, is disqualified to testify
         against W over her objection as to any advice or treatment
         given by him or any information which he may have acquired in
         his professional capacity.
         (Sec.24 (c) Rule 130 Rules of Court)

         Alternative Answer:
         If the doctor's testimony is pursuant to the requirement of
         establishing the psychological incapacity of W, and he is the
         expert called upon to testify for the purpose, then it should
         be allowed.
         (Republic vs. Court of Appeals and Molina 265 SCRA 198)

Bar Examination 1989
Ody sued spouses Cesar and Baby for a sum of money and damages. At the
trial, Ody called Baby as his first witness. Baby objected, joined by
Cesar, on the ground that she may not be compelled to testify against
her husband. Ody insisted and contended that after all, she would just
be questioned about a conference they had with the barangay captain, a
matter which is not confidential in nature. The trial court ruled in
favor of Ody.

      Was the ruling proper?
     
      Will your answer be the same if the matters to be testified on
      were known to Baby or acquired by her prior to her marriage to
      Cesar? Explain.

      Suggested Answer:
      No. Under the Rules on Evidence, a wife cannot be examined for
      or against her husband without his consent, except in civil
      cases by one against the other, or in a criminal case for a
      crime committed by one against the other. Since the case was
      filed by Ody against the spouses Cesar and Baby, Baby cannot
      be compelled to testify for or against Cesar without his consent.
      (Lezama vs. Rodriguez 23 SCRA 1166)

The answer would be the same if the matters to be testified on were
known to Baby or acquired by her prior to her marriage to Cesar,
because the marital disqualification rule may be invoked with respect
to testimony on any fact. It is immaterial whether such matters were
known to Baby before or after her marriage to Cesar.