Motion in Limine on Spousal Privilege

Below is a sample motion in limine asserting the spousal privilege in a truck accident case. This case was tried in 2018. Plaintiff received a $768,000 verdict. The trucking company had originally refused to make an offer but offered $150,000 to settle just before trial.

NANCY PAQUIN
* IN THE Plaintiff
* CIRCUIT COURT v.
* FOR KNOX HILLS TRANSFER AND
* ALLEGANY COUNTY STORAGE, INC., et al.
* Case No.: 01-C-17-045967 MT Defendants

* * * * * * * * * * * * *

PLAINTIFF NANCY PAQUIN’S MOTION IN LIMINE REGARDING PRIVILEGED COMMUNICATIONS BETWEEN PLAINTIFF AND HER HUSBAND COMES NOW the Plaintiff, Nancy Paquin, by and through her counsel, Miller and Zois, LLC, filing this Motion in Limine Regarding Privileged Communications between Plaintiff and Her Husband, and in support states as follows:

1. At the time of the subject crash, Plaintiff was married to Eddie W. Paquin. Plaintiff is still married to Mr. Paquin.
2. Maryland has codified a statutory privilege regarding marital communications. Md. Code Ann., Cts.&Jud. Proc. § 9-105, “Confidential communications between spouses.” “That privilege is available in civil and criminal trials alike.” Ashford v. State, 147 Md. App. 1, 59 (2002).
3. Here, Plaintiff, Ms. Paquin, and her husband, Mr. Paquin, hereby invoke and intend to exercise at trial their spousal communication privilege.
4. Therefore, neither of them can be compelled to testify as to what they discussed privately with each other about the happening of the crash, Plaintiff’s injuries, or any facts concerning the claims and defenses in this case. In light of Plaintiff and her husband Mr. Paquin’s invocation of the spousal communication privilege, Defendants should be precluded from questioning Plaintiff or Mr. Paquin at trial about their private communications with each other.

WHEREFORE, for the foregoing reasons, Plaintiff requests respectfully that the Court grant the instant Motion in Limine.

Respectfully submitted,
Miller & Zois, LLC
/s/ Justin P. Zuber
Justin P. Zuber

1 South Street
Suite 2450 – 24^th Floor
Baltimore, Maryland 21202
Telephone: (410) 553-6000
Facsimile: (844) 712-5151
Client Protection Fund No.: 0812180339
Attorneys for Plaintiff

More on Spousal Privilege in Maryland

Section 9-105 of the Courts and Judicial Proceedings Article of the Maryland Code provides: “One spouse is not competent to disclose any confidential communication between the spouses occurring during their marriage.” Maryland’s spousal privilege is available in both civil and criminal trials, and “may be asserted by the spouse who uttered the confidential communication.” Ashford v. State, 147 Md. App. 1, 59, 807 A.2d 732 (2002).

The Court of Appeals addressed the policy reasons behind the privilege comprehensively in Coleman v. State, 281 Md. 538, 380 A.2d 49 (1977):

The policy reasons underlying the privilege for confidential communications between husband and wife are (1) that the communications originate in confidence, (2) the confidence is essential to the relation, (3) the relation is a proper object of encouragement by the law, and (4) the injury that would inure to it by the disclosure is probably greater than the benefit that would result in the judicial investigation of truth. 8 Wigmore, Evidence, § 2332 (McNaughton rev. 1961). The essence of the privilege is to protect confidences only, id. at § 2336, and thereby encourage such communications free from fear of compulsory disclosure, thus promoting marital harmony. McCormick, Handbook of the Law of Evidence § 86 (2d ed. 1972).

Id. at 541. The Maryland high court has summarized the privilege:

Communications between husband and wife occurring during the marriage are deemed confidential if expressly made so, or if the subject is such that the communicating spouse would probably desire that the matter be kept secret, either because its disclosure would be embarrassing or for some other reason.” Coleman v. State, 281 Md. 538, 542, 380 A.2d 49 (1977) (citation omitted). In State v. Enriquez, 327 Md. 365, 372, 609 A.2d 343 (1992), the court said that “there is a rebuttable presumption that marital communications are confidential and privileged.” See State v. Mazzone, 336 Md. 379, 384, 648 A.2d 978 (1994). But, that presumption is rebutted if it is shown that the “communication was not intended to be confidential.” Enriquez, 327 Md. at 372 (citation omitted). Moreover, appellant had the burden of establishing “the element of confidentiality. . . .” Ashford, 147 Md. App. at 69.

This privilege has a long history in law. There is an 1580 chancery decision, Bent v. Allot, 21 Eng. Rep. 50 (Ch. 1580) that found that “the wife’s testimony on her husband’s behalf is treated as receivable, while his privilege to keep her from testifying against him is apparently sanctioned.” So spousal privilege has been invoked for nearly 500 years. But deep in mind that this privilege is subject to waiver. In Brown v. State, 359 Md. 180, 202-203 (2000) the court found our statutory spousal privilege may be waived under certain circumstances (but not in that particular case).

More Trial Preparation Materials

• Sample motions in limine (other sample motions)
• More weapons to get ready for your trial
• Sample discovery in malpractice, vehicle accident and other tort cases to help you weaponize for trial or settlement