When Does the Spousal Immunity Not Apply.

The spousal testimonial privilege and the confidential marital communications privilege each have recognized exceptions that eliminate their protection in specific circumstances. The most significant of those exceptions, in the opioid fraud investigation context, is the joint criminal activity exception.

The joint criminal activity exception provides that the confidential marital communications privilege does not apply to communications made in furtherance of a crime or fraud in which both spouses participated. The rationale is that the privilege was designed to protect the intimacy of the marital relationship, not to provide a shield for criminal conspiracies conducted through that relationship. Where both spouses participated in the criminal activity, their communications about it were not made in the context of a protected marital confidence; they were made in the context of a criminal enterprise.

Joint Participation in the Prescribing Practice

In opioid fraud investigations, the joint criminal activity exception most commonly arises where the practitioner's spouse was employed in the practice in a role that involved participation in the conduct under investigation. A spouse who managed the billing operations, who processed cash payments for controlled substance prescriptions, who maintained the scheduling system that processed patients at the rate the government characterizes as inconsistent with legitimate practice, or who otherwise participated in the operational conduct of the practice has potentially crossed from a non-participating spouse to a joint participant.

The government's argument that a spouse who worked at the practice was a joint participant in the criminal activity does not require proof that the spouse knew the activity was criminal. Participation in the conduct itself, with the knowledge of how the practice operated, may be sufficient to invoke the exception in circuits that apply a broad joint participant standard. The exception, if established, eliminates the confidential communications privilege for discussions between the spouses about the practice's operations.

The Witness Spouse's Election

Separately from the joint criminal activity exception to the confidential communications privilege, the testimonial privilege in federal court belongs to the witness spouse, who may choose to testify regardless of the defendant spouse's objection. A spouse who is cooperating with the government, whether under a cooperation agreement or voluntarily, cannot be prevented from testifying by the defendant spouse's assertion of the testimonial privilege.

This feature of the federal spousal testimonial privilege is among the most practically significant aspects of the spousal privilege framework. A practitioner who has discussed the investigation extensively with their spouse, assuming that the spousal privilege will prevent the spouse from testifying, may discover that the spouse has chosen to cooperate with the government and that the testimonial privilege provides no barrier to that cooperation.

Divorce and the Privilege

The spousal testimonial privilege applies only while the spouses are married. Communications occurring after a divorce are not protected by the testimonial privilege. The confidential marital communications privilege continues to protect communications made during the marriage even after a divorce, but the testimonial privilege terminates with the marriage.

A practitioner who discusses the investigation with their spouse, and whose marriage subsequently ends before any proceeding in which the spouse's testimony is sought, retains the confidential communications privilege for specific communications made during the marriage but loses the testimonial privilege that would have permitted the spouse to decline to testify about events they personally observed.

The spousal privilege is not a guarantee. It is a protection that depends on the specific circumstances of each communication, the nature of each spouse's role in any alleged criminal activity, and the election of the witness spouse. The practitioner who has relied on the spousal privilege as a basis for discussing the investigation extensively with their spouse has assumed a level of protection that the law does not consistently provide.

Managing the Spousal Dimension

The practitioner whose spouse was employed at the practice, who participated in its operations, or who has knowledge of the prescribing conduct under investigation should retain counsel for their spouse as well as for themselves. Separate counsel for the spouse ensures that the spouse's independent interests are represented, that the scope of the spousal privilege is assessed, and that the spouse's potential exposure as a participant is addressed before it is developed through the government's investigation. The failure to retain separate counsel for a spouse who may have their own exposure is a failure that typically becomes apparent at the point where the government's inquiry extends to the spouse.