North Carolina Criminal Law UpdatesEveryone seems to have a passing familiarity with the attorney-client privilege and the secret nature of communications between 
someone facing allegations of criminal charges and their defense lawyer.
That protection of confidentiality encourages the defendant, the person accused of a crime, to be honest with their lawyer. Honesty with legal counsel helps avoid surprises and affords a path towards reliable legal advice in any given circumstance.
There is no question under the NC criminal laws that what you confide to your criminal lawyer is confidential and privileged information. It’s an important aspect to the defense of criminal charges, whether it’s for a felony or a misdemeanor – John Fanney, Raleigh Criminal Defense Attorney
Privileged Relationships in North Carolina
Traditionally, there have actually been several different types of “privileges” under the Common Law that recognize the uniqueness, and privateness of certain special relationships between people.
What you tell your doctor or pastor (priest) or husband or wife, in certain circumstances, has for centuries been covered or deemed “protected” communications.
The HIPAA laws today clearly protect conversations with medical professionals pertaining to medical treatment and diagnosis.
The doctor-patient privilege encourages the patient to be honest with their physician. The patient knows the doctor will not disclose something that might be embarrassing or terribly private. It allows for the best treatment possible.
Confessions to a priest (or pastor) regarding sins in the past, and the condition of one’s soul, similarly have traditionally enjoyed protection in our courts of law. Again, honesty between priest and penitent has always been encouraged and protected. The penitent-priest privilege is valuable in helping us all become better people and to have a closer walk with our Maker through concerted reflection and self-assessment, guided by a spiritual adviser.
And “pillow talk” between spouses, also traditionally between husband and wife, has long been accepted as a type of privileged communication not to be used as evidence in court. It too encourages honesty and assuredness that you can tell your spouse the truth, again building up one of the most important relationships of life, marriage.
Until relatively recently, privileges as to communications have been black letter law and assumed inviolate. Privileges were liberally applied, understanding their importance in a civilized society.
Unfortunately, we continue to see an erosion of legal rights and privileges in North Carolina, all in the attempt to secure more convictions. Centuries-old protections known to every law student in the nation seem perpetually subject to attack – John Fanney, Criminal Defense Lawyers in Raleigh NC
What is the Marital Privilege?
There are two (2) different protections or marital privileges in North Carolina that protect communications between husband and wife (spouses).
One of the privileges is truly special among privileges (doctor-patient, penitent-priest, husband-wife) under the Rules of Evidence, that being the spousal immunity privilege.
The immunity afforded to spouses allows a husband or wife who is married to a defendant accused of criminal charges in North Carolina to refuse to testify against their spouse if called by the State (the prosecutor) as a witness against the accused.
That privilege applies only to criminal charges and not civil causes of action under tort or contract law. It is also limited to spouses who, at the time of the trial, are married.
The spousal immunity privilege is distinct from communications confidentiality and something defense lawyers in Raleigh (and throughout North Carolina) refer to as the marital confidential communications privilege or “MCCP.”
The MCCP is different regarding who may assert, “hold,” and/or control the privileged nature of the communication.
The marital confidential communications privilege is intended to support the institution of marriage, encourage honesty, and marital confidences.
It may allow a spouse to refuse to testify about a statement against their husband or wife. Importantly, it also provides protection for the communicating spouse to prevent her or his spouse from testifying about what was said during confidential, marital communications.
The marital privilege prevents one marital spouse from betraying the marital relationship and disclosing, transmitting, or revealing the confidential communication to others.
Husband and wife as witnesses in criminal actions – NCGS 8-57
The traditional common law rule is traced back to the year 1580. It disqualified one marital partner from testifying against or for the spousal defendant at a criminal trial.
The basis of the marital privilege was “spousal incompetency” to testify due to inherent conflicts of interest, and the inability to be a disinterested witness in the proceedings.
Such incompetency is further rooted in the “two shall become one” aspect of marriage and the wife possessing very few, if any, legal rights and/or standing under British Common Law.
Citing Lord Coke, US Supreme Court explained in Trammel v. United States:
[I]t hath been resolved by the justices, that a wife cannot be produced either against or for her husband … and it might be a cause of implacable discord and dissention between the husband and the wife
In 1868, during the Civil War, the NC General Assembly specifically preserved and created a general statute (law) acknowledging the marital communications privilege in North Carolina and spousal incompetency to testify rule.
Title XIV, Chapter VI, § 341 of the Code of Civil Procedure of NC discussed martial privilege relating to both criminal charges in North Carolina and civil proceedings.
The marital communications privilege remains good law in North Carolina and is set forth in N.C.G.S. § 8-57(c). Within the “husband and wife witness law,” as some criminal lawyers call it, a spouse may be competent to testify but may not be required or compelled to testify.
There is a difference.
The law acknowledges spouses may provide reliable testimony and are no longer deemed incompetent due to biases and the superiority of one spouse over another.
What is a Confidential Communication?
In the context of marital communications, the applicability of the marital privilege (husband-wife privilege) necessitates an inquiry into whether:
- The alleged protected communication was “induced” by the relationship between spouses; and
- “Prompted” by the loyalty, affection, and confidences associated with the marital relationship
Confidential, spousal communications involve the disclosure of information between a husband and wife (or other marital relationship) shared during the marital relationship in confidence.
The intention of the spouse disclosing or sharing information is deemed secret if there is a reasonable expectation of privacy.
An essential aspect of such inquiry involves confirming whether the “veil of confidentially” has been waived or removed taking into account the nature and circumstances of the communication.
A reasonable expectation of privacy is required, whereby the “holder,” the person possessing the right or privilege, intended and/or intends to keep the communication private (secret).
Factors to consider in determining waiver of the privilege include things such as:
- Where the conversation takes place
- Whether others are present during the communication
- The efforts taken to keep the conversation private
Raleigh Criminal Defense Lawyers – John Fanney
If you stand accused of criminal charges in Raleigh, our law firm would like to help. John Fanney is a defense attorney in Wake County with substantial experience arguing cases in court.
I firmly believe there is no substitute for experience and years of courtroom advocacy – John Fanney, Wake County Criminal Defense Attorney
Call NOW to schedule your confidential consultation.
Despite attacks on other types of legal privileges, including the marital privilege in NC, what you tell us is in fact privileged and confidential.
We keep secrets.