Does marital privilege apply?
The wife of a very high ranking official of the Philippine government accuses him of having amassed ill-gotten wealth. The official was installed as the head of a a constitutional body by the previous government, one that the present government is hostile to. The administration and its allies pounce on this opportunity to replace him, probably through impeachment. But there might be a problem.
Under the Rules of Evidence, one’s spouse is AUTOMATICALLY DISQUALIFIED to be a witness against the other while they are married. The only exceptions to that rule are (1) if the affected spouse consents, or (2) if the testimony is for use in a civil or criminal case against the affected spouse for offenses committed against the other spouse or his/her descendants. The Supreme Court has made another exemption in jurisprudence – (3) when domestic relations are so strained that there is no more harmony to be preserved or tranquility which may be disturbed.
The marriage between the government official and his wife is not over. In fact, just until recently when she got boxes of evidence and withdrew money for herself from their joint account, they lived together under the same roof. That means that their domestic relations were not so strained, otherwise, they wouldn’t be living in the same house at all. The fact that they still lived together shows that there was some harmony and tranquility in their relationship, otherwise, one would not trust the other enough to allow that person access to the house and to the confidential matters and secrets inside.
So, it is clear that there is absolute spousal disqualification, or as people in the legal world call it – absolute marital privilege. Does it really matter? After all, the wife of the official is filing a case for Legal Separation and violation of the Anti-Violence Against Women and Children (Anti-VAWC) Law. Surely she can testify against her husband? Of course she can. She can produce all this evidence and help the court decide if indeed their family is worth only PHP 176 million pesos, or over a billion.
But can the evidence in that case be used for other case? Not necessarily.
Under the Rules of Court, evidence is offered for only for the purpose of proving certain things. It cannot be used for purposes other than what it is offered for. In a case for VAWC or Legal Separation, the purpose for offering the evidence would not be to prove that some of the wealth is ill-gotten. If that ever happened, a lawyer would oppose the offer for being irrelevant to the case and will be sustained. Ill-gotten wealth has nothing to do with VAWC or Legal Separation.
And that makes the testimony in the Family Court cases useless for the filing of any case for ill-gotten wealth.
Another interesting question. Can the press releases made and the evidence brought out be used against the government official? Yes. But let me qualify. I’ll have to get into some technicality, so bear with me.
The government investigators can definitely use the evidence brought out by the wife. They can listen to her testimony for the leads. They can examine every document she brought to them. BUT… they cannot use her testimony to authenticate those documents.
What is authentication, and why is it important in the filing of a case? Evidence should be authenticated by the person who brought it out. Authentication is done by stating the circumstances as to how she obtained the evidence, and that the evidence presented is the very same ones she obtained. But she can’t do that if she is disqualified from testifying because authentication is done by testifying. In fact, her complaint filed with the NBI is a testimony against her husband, and the husband has every right to have it thrown out based on absolute marital privilege.
But the Supreme Court also declared in a landmark case that a wife who ransacked the husband’s cabinet at home could not use the evidence there.
In short, this means that all the evidence she has brought out of the house cannot be used in any case, UNLESS other independent evidence is found. The investigators can use the documents she brought with her as a starting point for their own investigations. If they find evidence where they will not need her to testify, then they can use it for prosecution of ill-gotten wealth.
And again, there may be a problem there. If you think that a investigators can just summon bank executives to talk about the bank accounts, you’d be engaged in fantasy. We have bank secrecy laws to protect those who own those accounts.
If you’ve read the blog entry of ThinkingPinoy, he says that there is a loophole that can be used – if the wife pursues a VAWC case, then the evidence is made public, and the wife would be able to testify. No, that’s not true. The wife would still not be able to testify or authenticate her testimony. Marital privilege is an objection that can be made even before the evidence is presented, so that means that it can never be presented.
Justice Secretary Vitaliano Aguirre said that marital privilege is nothing to worry about because the couple are no longer together. Again that’s incorrect. They are still married, and the evidence was taken at the time they lived together. Moreover, there is another marital privilege that states that everything said to the wife in confidence during the marriage is confidential and can never be divulged. That includes documentary evidence. And since the wife still lived with the husband at the time, he can always say that documents are privileged information that should be excluded from evidence. Again, there is already a Supreme Court case that discussed this.
To understand why marital privilege is so strong, you have to understand why it is there in the first place. Spouses are presumed to speak to each other about everything in the course of their relationship. This is because they have the same interest for the family and they are presumed to be acting in tandem to the same goals. This rule protects that both spouses in that it removes a burden from their minds that what they say would be used against their family.
Hence, testifying against the spouse would amount to testifying against one’s self – and that would be a violation of a person’s right against self-incrimination. This is also to avoid the danger of admitting perjured testimony and to prevent the witness spouse from being liable for perjury.
And lastly, as a matter of public policy, this is to preserve the marital relationship, family unity, solidarity and harmony. Even if the couple is separated, if they have children, there should be a modicum of civility between them. Once something like this is brought to court, the enmity it generates can be quite deep that it would destroy any chance of good relationships further down. This also prevents the danger of “punishing the party spouse through hostile testimony, in cases of domestic troubles between the spouses.” As in this case. Yes, that last line was quoted from a Supreme Court case.
I do admire her and her legal team because of a very good move they made to avoid marital privilege. The wife said that she is not after dirty money. Her complaint in the NBI was really to tell them that there is dirty money and that she did not know what was dirty and what was clean. She wanted them to help her sort it.
This puts things in a gray area. That may remove her from the coverage of the marital privilege rule because this is about the determination of what belongs to her and her children, so in essence, it partakes of a case of her and her children against him. The only problem is that the case in the NBI is not a criminal or civil case. But I’ll leave for debate. Anyone’s argument here is as good as mine.
Lastly, there may be an impeachment down the line.
I do not know if marital privilege will be allowed during impeachment proceedings. It is a different animal not covered by the Rules of Court. They have their own rules of testimony which I’m not going to cover here.