Can Shellie Zimmerman testify against her husband in his murder trial

April 20, 2013

Saturday, April 20, 2013

Good morning:

Today’s topic will be the husband-wife marital privilege. What is it? What does it cover? How does it apply to Shellie and George Zimmerman?

The husband-wife marital privilege is an evidentiary rule that protects confidential communications between spouses from disclosure to third parties. The purpose of the rule is to encourage open communication between spouses without fear that one spouse may be forced under penalty of law to disclose what the other said.

The privilege does not apply to all communications; it only applies to communications that were intended to be kept confidential.

Not all confidential communications are protected. For example, in Florida there is no privilege:

(a) In a proceeding brought by or on behalf of one spouse against the other spouse.

(b) In a criminal proceeding in which one spouse is charged with a crime committed at any time against the person or property of the other spouse, or the person or property of a child of either.

(c) In a criminal proceeding in which the communication is offered in evidence by a defendant-spouse who is one of the spouses between whom the communication was made.

See: FL Stat. 90.504(3)

Open communications between spouses in the presence of other people are not confidential. For example, anything the defendant may have stated to his wife in the presence of another person, such as Mark or Sondra Osterman or Frank Taaffe, regarding his encounter with Trayvon Martin before or after the shooting would not be privileged.

Communications between spouses during recorded jailhouse telephone calls are not privileged when the parties are warned at the beginning of the call that it will be recorded.

I believe an interesting argument can be made, pursuant to FL Stat. 90.504(3)(c), that Shellie Zimmerman can testify about disclosures by her husband regarding the alleged murder since she is a “defendant-spouse.” Even though she is a defendant in a different case, the two are related matters.

Certainly the argument is more powerful regarding the admissibility of any statements that her husband may have made to her about her alleged perjury because it occurred at the defendant’s bond hearing in an effort to conceal substantial assets exceeding $100,000 from the court, including a second passport that the defendant may have been planning to use to flee the jurisdiction to avoid prosecution.

Flight to avoid prosecution is admissible to show consciousness of guilt and, as Judge Lester noted in his order setting bail, the evidence supported an inference that only the fortuitous attachment of an ankle bracelet with a GPS device prior to the defendant’s release from jail may have prevented him from fleeing the United States with a valid passport and more than $100,000 of other people’s money.

Should the fortuitous circumstance that related criminal cases are pending against a husband and a wife under different cause numbers, instead of a single cause number, exclude application of section (3)(c)?

What do you think?

(H/T to Searching Mind for spotlighting this issue in comments this morning)


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