There is a distinction that is made under Massachusetts law between statutory disqualification and spousal privilege under G.L. Ch. 233, s. 20. The spousal disqualification applies in all actions, civil and criminal, and regardless of whether one of the spouses is a party or not; the spousal privilege applies only in criminal cases where the spouse is the defendant. The issue of spousal disqualification, sometimes confused with spousal privilege was raised recently in a federal case in Massachusetts, by the criminal defense lawyer for Patrice Tierney, the wife of U.S. Rep. John Tierney, who was convicted last year of assisting her brother in filing false tax returns. Patrice Tierney is a witness in the case. This case was highlighted in a Boston Herald article penned by reporter Laurel Sweet who contacted the Law Office of Patrick J. Murphy and interviewed Boston criminal defense attorney Patrick J. Murphy. Attorney Murphy has written about spousal privilege and disqualification issues in Massachusetts. In response to a specific question Attorney Murphy was quoted in the Boston Herald and he stated “[g]enerally, any communications between husband and wife would be covered.”
Mrs. Tierney was expected to be called as a witness in the current case against her brother, Daniel, but so far has refused to meet with government investigators who want to ask her about conversations she allegedly had with her husband, who has already denied any knowledge about his brother-in-law’s alleged illegal gambling and money laundering operation. The case is also interesting because Mr. Tierney is also a lawyer and the prosecutor wants to ask Mrs. Tierney whether she consulted with him about the legality of her brother’s alleged gambling activities. This raises the issue, if the conversation did occur, as to whether it would be covered by the attorney/client privilege.
In Massachusetts, spousal disqualification affects only testimony concerning private conversations between the spouses; spousal privilege affects all testimony. Spousal disqualification also prevails whether or not one or both spouses want to disclose the conversation while spousal privilege operates only if the witness-spouse invokes it and it the privilege has not been waived. The spousal disqualification rule prevents both spouses from testifying. Spousal privilege excuses only the non-defendant spouse from testifying. Finally spousal disqualification only applies if the parties were married at the time of the conversation. On the other hand, spousal privilege only requires that the parties be married before giving testimony at trial.
Attorney Patrick J. Murphy is an experienced Boston criminal defense lawyer with nearly 20 years of litigation experience. Contact Attorney Murphy today to discuss your criminal case, especially if it involves the issues of spousal disqualification and spousal privilege.