TO: Triad F
FROM: Your Name
DATE: The date
RE: The law in Virginia regarding marital communications privilege
What is the law in Virginia regarding the marital communications privilege, when the marital partners are legally separated and the communications of the non-spoken type? ANALYSIS
Our client is charge with robbery of the proprietor of a local 7-Eleven store. Two hours after the alleged incident, he arrived at the home of his estranged wife. He displayed $150.00 in small bills and coins in a 7-Eleven moneybag. The parties are now divorced and the prosecution intends to introduce her testimony as to the money and the moneybag. The Virginia Code restates the common law rule which prohibits a spouse from testifying against his or her spouse (without consent) as to any confidential communications made during a valid marriage (19.2-271.2). This code applies to this case where the parties are still married. A legal separation does not terminate marital rights and privileges and the subsequent termination of the marriage does not destroy the privilege. Menefee v. Commonwealth, 189 Va. 900, 55 S.E. 2d 9 (1949). In this case, the petitioner wife was called to testify against the respondent husband during their legal separation. The Courts are clear that the marriage exists until final termination and is viewed as a marriage until such date. In Menefee, supra, the Virginia Supreme Court interpreted the term “communication” to include all information or knowledge privately imparted and made known by one spouse to the other by virtue of and in consequence of the marital relation through conduct, acts, signs and spoken or written words. Any communication between the husband and wife is considered “privileged” and cannot be used against one another during the course of their marriage.
Furthermore, this applies even where the separation is “coupled with an intention on the part of at least one of the parties to live...