Marital Privilege
On Evidence
Marital Privilege
Suggested Answer:
1. The husband or the wife,
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
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
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
Marital Disqualificaiton or Spousal Immunity Rule – it states that during their marriage, the husband or the wife cannot testify against the other without the consent of the affected spouse, except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter’s direct descendants or ascendants.
Requisites For Marital Privilege To Apply
1. There was a valid marital relation
2. The privilege is invoked with respect to 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 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, because 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
Requisites For Marital Privilege To Apply
1. There was a valid marital relation
2. The privilege is invoked with respect to 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 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, because 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.
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:
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%]
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)
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)
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
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.
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.
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