There is an old common
law Massachusetts evidentiary rule whereby private conversations between
spouses are not admissible evidence in legal proceedings, including
depositions. This “disqualification”
applies even if both spouses consent to the evidence, and also survives the
death of either spouse. The original
notion behind this rule was to preserve marital harmony and the confidentiality
of the marital unit. This rule applies
to both criminal and civil cases. You
have probably seen some suspenseful variation of this rule on a legal show such
as Law & Order.
However, under current
Massachusetts rules, written communications (including electronic mail) are not
considered “conversations” and are admissible,
unless otherwise prohibited by another rule of evidence. Under
the long existing, but never enacted, proposed Massachusetts Rules of Evidence,
“conversations” would be replaced with “communications” to cover private
written communications between spouses. Obviously,
this evidence is often raised and relevant in divorce proceedings, but can also
be relevant in a variety of civil and criminal matters. Until the day that Massachusetts adopts these
Uniform Rules of Evidence, watch what you write to your spouse!
