Opinion
Case No. 98-CV-0526-EA (J)
February 3, 2003
ORDER
Now before the Court is Defendant Timothy Lee Nipper's Motion to Strike/Suppress the Testimony of His Former Spouse, Dawn Lynn Lang (Dkt. # 109), filed on December 13, 2002. Nipper is seeking to strike and/or suppress the testimony of his former spouse arguing that her deposition testimony is protected by the marital communication privilege.
I.
The confidential marital communications privilege prohibits one spouse from testifying as to conversations or communications with the other spouse made in confidence during their marriage. United States v. Apodaca, 522 F.2d 568, 570 (10th Cir. 1975). The marital communications privilege is held by the non-testifying spouse, and applies in both civil and criminal proceedings. A federal privilege for confidential marital communications has long been recognized. See Wolfle v. United States, 291 U.S. 7, 14 (1934) ("basis of the immunity given to communications between husband and wife is the protection of marital confidences, regarded as so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administration of justice which the privilege entails"); see also Trammel v. United States, 445 U.S. 40, 51 (1980) (information privately disclosed between husband and wife in confidence of marital relationship traditionally protected).
In order for a spouse to assert the confidential marital communications privilege, the court must find that at the time of the communication there was a marriage recognized as valid by state law. United States v. Lustig, 555 F.2d 737, 747-48 (9th Cir. 1977) (common law wife could testify against husband as to confidential communications because privilege depends on existence of valid marriage determined by state law and Alaska does not recognize common law marriage). Additionally, the court must find that the privilege is being applied to communications intended by one spouse to convey a message to the other. See Pereira v. United States, 347 U.S. 1, 6-7 (1954) (acts of witness and defendant spouse were not communications). Although federal courts generally have not recognized observations made of a spouse's activities or appearance as communications covered by the privilege, the Tenth Circuit has noted that acts intended to convey a message may be privileged. See United States v. Bahe, 128 F.3d 1440, 1443-45 (10th Cir. 1997) (assuming that intimate sex acts between marital partners are communication and, consequently, that those acts may be protected by the marital communications privilege); see also United States v. Neal, 743 F.2d 1441, 1448 (10th Cir. 1984) (Logan, J., concurring) (assuming that marital privilege extends to "physical acts that are entirely communicative, such as sign language"). Finally, for the privilege to apply, the communication must he made in confidence. The federal courts apply a presumption that communications between spouses are intended to be confidential. Pereira v. United States, 347 U.S. 1, 6 (1954) (conversations between spouses presumed confidential). The presumption may be overcome by a showing that the communication occurred in the presence of a third party. Id.
II.
Nipper argues that the deposition testimony give by his former spouse, Dawn Lynn Lang, is protected by the marital communications privilege and should be stricken or suppressed. Nipper contends that he and Lang were married during 1976 and remained married until they divorced in 1984. Nipper further contends that Lang testified about communicative acts that he engaged in during their marriage, and that such testimony was covered by the marital communications privilege.
The United States argues that the testimony given by Lang was about her observations of Nipper's actions and the conclusions she drew from those activities, including that he drove a trash truck, owned a trash service, and supported Lang and their four children from 1981 through 1984. The United States contends that her testimony concerned uncommunicative actions and was not privileged.
The Tenth Circuit has noted that acts intended to convey a message may be privileged. See Bahe, 128 F.3d at 1443-45 (assuming that intimate sex acts between marital partners are communication and, consequently, that those acts may be protected by the marital communications privilege); see also Neal, 743 F.2d at 1448 (Logan, J., concurring) (assuming that marital privilege extends to "physical acts that are entirely communicative, such as sign language"). However, Nipper has provided none of the testimony of Lang to evidence what she testified to. Nipper has presented no evidence that Lang testified as to any communicative acts that would be privileged under the marital communications privilege. Nipper merely relies upon his assertion that "the Government was interested in confidential information occurring between spouses during a marrige [sic]." Dkt. # 109, at 2.
The United States has summarized Lang's testimony, and presented excerpts of her deposition testimony, supporting its contention that her testimony was about uncommunicative acts. The only testimony of Lang that has been presented before this Court does not concern acts that are in any way communicative and therefore are not entitled to the protections of the marital communications privilege.
Nipper's argument would allow for all actions undertaken in the presence of a spouse to become privileged under the marital communications privilege. This is clearly not what the Tenth Circuit contemplated in Bahe, when it held that the intimate nature of activity between spouses could be considered as communication between the marital partners. Bahe, 128 F.3d at 1443-45. Nipper has failed to present evidence that Lang testified as to activities, such as the intimate sex acts between marital partners, that should be characterized as communicative acts and that should be privileged. Absent any evidence that Lang testified about confidential marital communications, the Court will not strike her deposition testimony.
IT IS THEREFORE ORDERED that Defendant Timothy Lee Nipper's Motion to Strike/Suppress the Testimony of His Former Spouse, Dawn Lynn Lang (Dkt. # 109) is hereby DENIED. Pursuant to this Court's Order of December 17, 2002, defendant Timothy Lee Nipper has fifteen (15) days from the entry of this Order to file a response in opposition to the United States' second motion for summary judgment.