Sunday, March 7, 2010

"I don't understand the question and I won't respond to it": Spousal Immunity on Arrested Development

      "They cannot arrest a husband and wife for the same crime." -- George Bluth, Sr.
My brother gave me Season 1 of Arrested Development for Christmas this year - yay! - and after a bad day recently I treated myself to the Season 2 DVDs.  I'm one bad day away from owning the entire three season collection!  It's impossible not to love this quirky, irreverent comedy about the Bluth family's fall from grace, which was recently rated the 4th best tv show of the decade.
The Arrested Development pilot begins when Michael Bluth, the family's most stable member, expectantly awaits to be named as his father's successor and become president of the Bluth company.  To Michael's surprise, family patriarch George Bluth, Sr. names his wife (and everyone's favorite lush) Lucille to the position instead.  Her celebration is short-lived, however, when the SEC interrupts the boat party to arrest George, Sr. for defrauding investors, embezzlement, and, as we find out later, "light treason."


Michael later confronts his father in prison asking why he wasn't named company president after his years of loyalty and dedication.  George assures him that he did so to protect him from becoming liable as an accomplice, leaning in to whisper, "They cannot arrest a husband and wife for the same crime."  Michael responds with perfect deadpan delivery, "Yeah, I don't think that that's true, Dad."  According to the DVD commentary, Michael's line was added later when another writer read the first draft and in response to George's scripted line noted, "Yeah, I don't think that's true."  Since there seems to be some confusion regarding what privileges and immunities spouses enjoy, let's clear it up now. 

Rules of Evidence 

George's (and the original script writer's) confusion regarding criminal liability of spouses most likely stemmed from the existence of certain rules of evidence that may limit one spouse's ability to testify against the other.  There are two distinct rules regarding testimony against one's husband or wife. 

Spousal Immunity

The first, known as spousal immunity or the spousal testimony privilege, applies only in criminal cases and can prevent the prosecution from calling the defendant's spouse as a witness.  In federal court (the likely jurisdiction for SEC crimes and "light treason"), the privilege belongs to the witness-spouse.  This means that Lucille can refuse to testify against George, but George cannot prevent her from testifying if she chooses to do so.  This privilege does not survive the marriage, however.  If Lucille were to leave George, Sr. for his brother Oscar, she would have no right to refuse to testify against her ex-husband.

Confidential Marital Communications

The other privilege protects communications made between a husband and wife and applies in both civil and criminal cases.  When applied, a court may not compel one spouse to testify against the other concerning confidential communications made during marriage.  Either spouse has the right to invoke the marital communications privilege.  That is, each spouse may refuse to disclose confidential marital communications and each may also prevent the other from disclosing the communication.  This privilege only applies to communications made during the marriage, but will survive if the couple later divorces.

Neither Marital Privilege Applies

Unfortunately for George, Sr., neither privilege applies when both spouses are joint participants in a crime.  Therefore, George's plan to avoid accomplice liability for members of his family by naming Lucille as his successor is not even helped by the rules of evidence.  In fact, Lucille does ultimately testify against her husband . . . in a fake reality show proceeding before "Judge" Reinhold and William Hung and his Hung Jury.

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