Case Western Reserve Law Review Volume 14 Issue 3 Article 32 1963 Husband-Wife Testimony in Ohio Leonard R. Steinsapir Follow this and additional works at: https://scholarlycommons.law.case.edu/caselrev Part of the Law Commons Recommended Citation Leonard R. Steinsapir, Husband-Wife Testimony in Ohio, 14 W. Rsrv. L. Rev. 591 (1963) Available at: https://scholarlycommons.law.case.edu/caselrev/vol14/iss3/32 This Note is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. 19631 HUSBAND-WIFE TESTIMONY litical propaganda in the United States is increasing. The Foreign Rela- tions Committee staff, which recently prepared a study on the nondiplo- matic activities of representatives of foreign governments," concluded that the labeling provisions, meant to counter the effect of foreign politi- cal propaganda, "have been all but erased from the lawbooks through nonapplication."88 DAviD L.SIMIELE Husband-Wife Testimony in Ohio Husband-wife testimony in Ohio is regulated by statute in both civil and criminal cases.' The Ohio civil statute has incorporated the com- mon-law rule concerning confidential communications. The Ohio crimi- nal statute has incorporated, to some extent, the common-law rules con- cerning the incapacity of one spouse to testify on behalf of the other and the spouses' privilege of not having to testify against each other. Much confusion exists, however, as to the interpretation and application of these statutory provisions. COMMON-LAW FOUNDATIONS At the common-law neither party to a marriage was competent to testify as to any confidential communication made between them, nor could either be a witness in favor of or against the other.2 The rationale for these rules was originally based upon the legal fiction that the hus- band and wife were one. Since a party to an action was disqualified from testifying because of interest, the spouse was likewise held to be barred.' However, the interest disqualification was soon abolished and the courts presented other reasons for perpetuating the rules.4 Confidential Communications The common-law rule regarding confidential communications be- tween husband and wife concerned the competency of the witness and was not a rule based upon substantive evidence or privilege.5 The rea- son for this was that it was originally a mere extension of the rule that neither spouse could be permitted to testify for or against the other.' However, it soon became a separate rule justified on its own grounds. The most commonly cited of these grounds is the necessity to protect the marriage institution.7 This reasoning has been criticized on the basis that 85. Ibid. 86. Ibid. WESTERN RESERVE LAW REVIEW [VOL 14:3 few people, if any, know and rely on the protection of this rule in mak- ing communications to their spouse,8 and that the rule is an "indefensible obstruction to truth in practice."9 The common-law rule that made spouses incompetent to testify as to confidential communications by one to the other should not be confused with either the separate and distinct privilege of not having to testify against one's spouse or the rule disqualifying one spouse from testifying on behalf of the other,'" The latter two rules rest upon grounds com- pletely independent of those supporting the exclusion of testimony by the spouses concerning confidential communications made by one to the other during coverture. Testifying on Behalf of One's Spouse Although the disqualification from testifying for one's spouse came into being about the same time as the privilege of not having to testify against the other spouse, the two concepts have no necessary connection in principle or purpose." The disqualification of the spouses to come forward voluntarily in favor of each other seems to rest, first, on the ground that there is a natural bias of affection. Secondly, if such testi- mony were permitted, the spouse would be subject to cross examination which might divulge information unfavorable to the accused spouse. Therefore, the very purpose for which the privilege was intended would be defeated.' 2 The latter reasoning has been criticized on the basis that 1. OHIO REV. CODE §§ 2317.02, 2945.42. 2. People v. Hayes, 140 N.Y. 484, 35 N.E. 951 (1894); Lock v. State, 33 Ohio App. 445, 169 N.E. 833 (1929); Annot., 4 A.L.R.2d 835 (1949); Annot., 63 A.L.R. 107 (1929). 3. Quick, Privilege Under Uniform Rules of Evidence, 26 U. CINC. L. REV. 537, 550 (1957); Note, Evidence, 6 OHIo ST. L.J. 78 (1939). 4. Damn v. Lodge, 158 Ohio St. 107, 107 N.E.2d 337 (1952); Sessions v. Trevitt, 39 Ohio St. 259 (1883); Quick, supra note 3, at 550. See also Bird v. Hueston, 10 Ohio St. 418 (1859), where the court stated in its syllabus: "2. The rule that husband and wife are in- competent to testify for or against each other, is not changed by the removal of incompetency on the ground of interest. Whether the husband or wife be a party to the action, or only interested in the event, the policy of the rule applies." 5. Annot., 4 A.LR.2d 835, 836 (1949). 6. Ibid. 7. Marsh v. Preferred Acc. Ins. Co., 89 F.2d 932, 934 (6th Cir. 1937); Sessions v. Trevitt, 39 Ohio St. 259, 267 (1883); Cook v. Grange, 18 Ohio 526 (1849); Annot., 10 A.L.R.2d 1389, 1391 (1950); Annot., 63 A.L.R. 107 (1929). See also Dick v. Hyer, 94 Ohio St. 351, 360, 114 N.E. 251, 253 (1916); Louisell, Confidentiality, Conformity and Confusion: Privileges in Federal Court Today, 31 TuL. L. REV. 100, 113 (1956). 8. Hutchins & Slesinger, Some Observations on the Law of Evidence; Family Relations, 13 MINN. L. REV. 675 (1929). 9. 8 WIGMORE, EVIDENCE 5 2228, at 221 (McNaughton rev. 1961). 10. Annot., 4 A.L.R.2d 835, 836 (1949); Annot., 63 A.L.R. 107 (1929). Cf. Quick, supra note 3, at 552. The UNIFoRM RULES OF EVIDENCE abolish the for and against rules. 11. 8 WIGMORE, EVIDENCE § 2227, at 211 (McNaughton rev. 1961). 12. 2 WIGMORE, EVIDENCE § 601, at 732-33 (2d ed. 1940). 1963] HUSBAND-WIFE TESTIMONY it will be the accused spouse himself who will call, the other spouse to testify in his favor."3 The law should not deny to the accused spouse the Tight to the testimony of the other spouse because of a risk which he him- self is willing to accept.' 4 Testifying Against One's Spouse The privilege of not having to testify against one's spouse rests upon grounds completely different from those supporting the disqualification from voluntarily testifying in the other's behalf.15 The basis for the authorities supporting this rule seems to be that there is a natural repug- nance to compel a husband or wife to be the possible means of the other's downfall.' Even this reasoning has been criticized on the basis that it is a mere legal anachronism and an obstruction to truth.' Exceptions to the Privilege Certain exceptions to the privilege of not having to testify against one's spouse were recognized at the common law on the basis of necessity, that is, a necessity to avoid the extreme injustices which might inure upon a strict enforcement of the rule." In Ohio, as in other states, these common-law exceptions have taken statutory form.' Ohio Revised Code section 2945.42 permits one spouse to testify against the other in all actions and proceedings regarding personal injury of either by the other, bigamy, failure to provide for, neglect of, or cruelty to their children un- der sixteen years of age,"0 and in proceedings under the Ohio Revised Code sections 3113.01 or 3113.03 for neglect or abandonment of the wife.2 ' Further exceptions seem to exist in Ohio, although not by statute, where the privilege is being used to perpetrate a fraud,2 where the spouse is acting as the agent for the other spouse,2" and where the spouse is testi- 13. Haberty v. State, 8 Ohio C.C.R. 262 (Cir. Ct. App. 1894). 14. 2 WiGMORB, EvIDENcE, op. cit. supra note 12, at 732-33. 15. 8 WIGMORE, EvDENcE § 2228, at 216 (McNaughton rev. 1961). 16. Id. at 217; Note, .vidence, 6 OHiO ST. UJ. 78, 81 (1939). 17. 8 WIGMOit, EvIDENcE, op. cit, supra note 15, at 221. 18. Whipp v. State, 34 Ohio St. 87, 88 (1877); 8 WIGMORE, EVIDENCE § 2239, at 242 (McNaughton rev. 1961); Quick, supra note 3, at 551. 19. OMo REV. CODE §§ 2945A2, 3105.11. 20. State v. Ward, 92 Ohio App. 179, 109 N.E.2d 488 (1952). 21. Chapter 3115 of the Ohio Revised Code provides a means for enforcing the right of a wife, or any other person entided to support, to be supported by her husband when he has left the jurisdiction. See 28 OHIO Jui. 2d Husband and Wife 5 47, at 162 (1958). 22. OHIO JUtR. Witnesses § 253, at 256 (1936); 28 R.C.L. § 115, at 526. 23. 2 WGMORB, EVD ENCE § 616, at 749 (3d ed. 1940); 42 OHO JuI., op. cit. supra note 22, at 256; 28 R.C.L. § 116, at 527. If this were not the case a spouse would be able to in- sulate himself from liability by always making his spouse his agent for business purposes.