(4) The wife's statements in her husband's presence are receivable against him as his admissions implied by silent assent (ante, § 2232); yet if the interview was private, the present privilege seems to forbid this; for, even regarding the statements as adopted and made by him, they are still private and confidential.3

3. Persons Prohibited and Entitled.

§ 2339. Third Persons Overhearing; Documents obtained by Third Persons. (1) A third person overhearing a confidential communication may testify to it,1 for the same reason recognized in the privilege for a client's communications with his attorney (ante, § 2326).

(2) For documents of communication coming into the possession of a third person, a distinction should obtain, analogous to that already indicated for a client's communications (ante, §§ 2325, 2326); i. e. if they were obtained from the addressee by voluntary delivery, they should still be privileged (for otherwise the privilege could by collusion be practically nullified for written communications); but if they were obtained surreptitiously or otherwise without the addressee's consent, the privilege should cease.2

§ 2340. Who may Claim the Privilege; Waiver. (1) The privilege is intended to secure freedom from apprehension in the mind of the one desiring to communicate (ante, § 2332); it thus belongs to the communicating one, and the other one the addressee of the communication is therefore not

N. W. 720 (but it is difficult to reconcile this with the local statute, § 4072).

3 1871, R. v. Hilditch, 12 Cox Cr. 131, Cox, J. ("what a wife says in the presence of her husband is admissible, and what she writes to him, if received and recognized by him, is equivalent to a statement made verbally by her in his presence"; a letter found on his person, here doubtingly held admissible).

1 1834, R. v. Simons, 6 C. & P. 540; 1889, Gannon v. State, 127 Ill. 507, 518, 21 N. E. 525; 1900, State Bank v. Hutchinson, 62 Kan. 9, 61 Pac. 443; 1872, Com. v. Griffin, 110 Mass. 181; 1862, State v. Center, 35 Vt. 378, 382, 386 (proved by a police-officer who was in the next room).

2 The rulings are not harmonious; compare the rulings on confession obtained by trick (ante, § 841): 1872, R. v. Pameuter, 12 Cox Cr. 177 (letter to a wife, given to a constable to post, but retained by him, excluded); 1902, Ward v. State, 70 Ark. 204, 66 S. W. 926 (a defendant, in jail, gave to his wife a letter, partly to her and partly to N., and the letter was taken from her; held, that the part to her was inadmissible, and, by a majority, that the part to N. was admissible); 1880, State v. Hoyt, 47 Conn. 540 (letters of the defendant to his wife, admitted from one who had obtained possession of them); 1898, Mercer v. State, 40 Fla. 216, 24 So. 154 (a husband's letter to his wife, obtained somehow by the defendant; excluded, regardless of the persons by whom it was possessed); 1893, Wilkerson v. State, 91 Ga. 729, 738, 17 S. E.

990 (a letter from a husband to the wife, given by her to her paramour, excluded); 1878, State v. Buffington, 20 Kan. 599, 613 (a letter from the defendant to his wife, handed by her to the prosecuting witness, admitted; "it is privileged only while it remains in their custody and control, or while it remains within the custody and control of their agents or representatives "); 1893, Scott v. Com., 94 Ky. 511, 23 S. W. 219 (a letter by a husband to the wife, obtained from her by a third person, whether by force or otherwise, privileged); 1892, State v. Ulrich, 110 Mo. 350, 364, 19 S. W. 656 (a husband's letters to the wife produced from her custody, excluded); 1877, Geiger v. State, 6 Nebr. 545, 549 (a letter from a husband to the wife, found by a third person in the husband's house, admitted; "the Court will not take notice how they are obtained "); 1902, People v. Truck, 170 N. Y. 203, 63 N. E. 281 (the defendant's wife permitted to prove her receipt from him in jail of two letters, and her mailing of them, the wife not being aware of the contents or of the addresses); 1887, Bowman v. Patrick, 32 Fed. 368 (letters from a husband to a wife, found among his papers by the husband's administrator, and by him delivered to the party, excluded); 1889, Selden v. State, 74 Wis. 271, 274, 42 N. W. 218 (letters by a husband to a wife, deposited by her with her attorney for a divorce, held not producible by the latter in a prosecution of the husband for perjury; addresses and postmarks on the envelopes, equally excluded).

entitled to object;1 unless, as already noticed (ante, §§ 2338, par. 4), the latter's silence is desired to be treated as an assent and an adoption of the statement, which thus makes it doubly a communication and doubly privileged.

(2) The spouse possessing the privilege may of course waive it. The waiver may be found in some extrajudicial disclosure, or in some act of testimony which in fairness places the person in a position not to object consistently to further disclosure,3 — for, as already noted (ante, § 2327), the principle of waiver cannot depend solely upon the interpretation of conduct implying willingness to waive.

Nevertheless, in a few Courts the doctrine of waiver appears to be ignored entirely. This confusion of a disqualification with a privilege has been already adverted to (ante, § 2334); it is entirely unjustifiable (except as required by the express words of some perversely-phrased statute), and is so radical an error of principle that no further argument would cure such a misapprehension.

4. Cessation of the Privilege.

§ 2341. Death; Divorce; Separation; Invalid Marriage. The privilege is intended to secure such a guarantee against apprehension of disclosure as will induce absolute freedom of communication; and this can only be attained by continuing the protection in spite of the termination of the marital relation :

1859, Stephens, J., in Lingo v. State, 29 Ga. 470, 483: "Communications between husband and wife are protected forever. This is necessary to the preservation of that perfect confidence and trust which should characterize and bless the relation of man and wife. Each must feel that the other is a safe and sacred depository of all secrets; and the protection which the law holds over the dead is the very source of greatest security to all the living."

(1) Hence, it has always been conceded that the death of the person communicating does not terminate the privilege.

1 1900, Derham v. Derham, 125 Mich. 109, 83 N. W. 1005; 1888, Stickney v. Stickney, 131 U. S. 227, 237, 9 Sup. 677, semble (cited post, § 2341). Contra (that the privilege belongs to both): 1890, People v. Mullings, 83 Cal. 138, 143, 23 Pac. 229; 1891, People v. Wood, 126 N. Y. 249, 271, 27 N. E. 362, semble. Undecided: 1882, Perry v. Randall, 83 Ind. 143, 146, semble.

2 1894, People v. Hayes, 140 N. Y. 484, 495, 35 N. E. 951 (letters from a wife to a husband, given by him to his mistress and by her to the district attorney, not privileged for the husband).

3 The statutes cited ante, § 488, sometimes provide for this: 1898, Driver v. Driver, Ind. -, 52 N. E. 401 (divorce; husband's use of his own communications to the wife, treated as a waiver of privilege as to his letters on the same subjects); 1897, Kelley v. Andrews, 102 Ia. 119, 71 N. W. 251 (presence of the wife in Court at

In this respect, the present

a former trial when the husband disclosed the communications in question, not a waiver of the privilege for the second trial); 1898, Nichols v. Nichols, 147 Mo. 387, 48 S. W. 947 (examination of wife by opponent as to communications waives the privilege as to such communications); 1899, Rose v. Mitchell, 21 R. I. 270, 43 Atl. 67 (alienation of wife's affections; whether plaintiff's testimony to wife's language to him is a waiver, allowing her to testify to similar matters, undecided).

The following ruling is unsound; compare § 2276, ante: 1891, Connolly v. Murrell, 14 Ont. Pr. 187 (the husband may at any time claim the privilege, even after making partial disclosure).

1877, Chapman v. Holding, 60 Ala. 522, 533, semble; 1900, Robinson v. Robinson, 22 R. I. 121, 46 Atl. 455. Undecided: 1882, Perry v. Randall, 83 Ind. 143, 146, semble.

1 1824, Doker v. Hasler, Ry. & Moo. 198

privilege differs not only from the marital disqualification (ante, § 610) but also from the marital privilege against adverse testimony (ante, § 2237), so that, even where those two have been terminated by death or have been abolished by statute, the present privilege remains for enforcement. (2) In the same way, the privilege does not terminate with divorce or separation.2. (3) But the application of the privilege to a communication made between husband and wife living in separation,3 or between persons living in unlawful cohabitation, cannot be conceded; for here the policy of the privilege does not apply (ante, § 2332), since the relation is not one in which the law need seek to foster confidence, and no privilege ever came into existence.

TOPIC B (continued): PRIVILEGED COMMUNICATIONS.

SUB-TOPIC IV: COMMUNICATIONS BY AND TO JURORS.

CHAPTER LXXXII.

§ 2345. General Principles involved.

A. PETIT JURY.

1. Privileged Communications Rule.

§ 2346. Scope of the Principle.

2. Parol Evidence Rule.

§ 2348. General Principle.

§ 2349. (a) Motives, Beliefs, Misunderstandings, or Intentions of Jurors, as immaterial. $2350. Same: Examining the Jury before Discharge, to ascertain the Grounds of Verdict.

§ 2351. (b) Issues of the Trial, as material; Judge's Instructions, as considered by the Jury. $2352. (c) Irregularities and Misconduct, as material; Jurors Impeaching their Verdict; History of the Rule.

§ 2353. Same: Policy of the Rule.

$ 2354. Same: State of the Law in Various Jurisdictions; Qualifications of the Rule.

§ 2355. (d) Mistake in Recording or Announcing the Verdict.

§ 2356. Same: Explaining the Verdict's Meaning; Mistake as to its Legal Effect; Retiring to Reconsider.

3. Arbitrators' Awards. $2358. Foregoing Principles applied to Arbitrators' Awards.

B. GRAND JURY.

1. Privileged Communications Rule. § 2360. History and General Principle. $ 2361. (a) Privilege of Grand Jurors; Secrecy of Vote and Opinion.

$2362. (b) Privilege of Witnesses before the Grand Jury; General Principle.

§ 2363. Same: Instances of the Cessation of the Privilege.

2. Parol Evidence Rule.

§ 2364. Grounds for Indictment; Illegal Evidence; Required Number of Votes; etc.

§ 2345. General Principles involved. The doctrine of privilege for confidential communications, when applied to jurors in their deliberations, found itself side by side with two other and totally distinct doctrines. To the natural risks of entanglement, add that one of these doctrines is not a principle of evidence at all, and that the other is a now discarded principle which at one time had great vogue in other relations; and it is easy to see that much obscurity of rule has resulted, together with much difference of judicial opinion. As the common formula has run, " a juror's testimony or affidavit is not receivable to impeach his own verdict." But this rule of thumb is in itself neither absolutely correct as a statement of the acknowledged law, nor at all defensible upon any principle in this unqualified form. It is a mere shibboleth, and has no intrinsic signification whatever. It resembles the popular notion in times of stringency that "the country needs more money," or the old tradal fallacy that a people's money ought to be spent within its own borders and not paid to foreign merchants for foreign goods, both of which have a certain plausibility, and yet can only be exposed by a consideration of independent and fundamental economic principles which combine under certain circumstances to produce the facts that give plausibility to the popular dogmas. The dogma that a juror may not impeach his verdict is, then, in itself neither correct in law nor reasonable in principle; but it has reference to a group of rules deducible from three general and independent principles, which must be examined separately:

1. Privileged communications. The juror's subjective freedom of expression in consultation must be guaranteed. Hence the evidential principle of privileged communications (ante, § 2285) genuinely applies to the deliberations of a jury, so as to forbid any one of them to reveal the communications of another during retirement, without the latter's consent.

2. Parol evidence (Integration). The verdict of a jury is a written act, like a will or a contract or a judgment reduced to writing, and the "parol evidence" rule (post, § 2401) governs it, in a special application adapted to its circumstances. The results of this principle's application fall under four heads: a. The negotiations and motives preceding and leading up to the final act of uttering the verdict are immaterial and cannot be used to vary or set aside the verdict as uttered; b. The precise scope of the issues upon which the verdict is founded is always open to ascertainment; c. The failure to observe those forms of behavior which are essential to the validity of jurors' actions is always open to establishment; d. The incorrectness of the foreman's declaration or of the clerk of court's record, in not representing the actual terms of the verdict as finally assented to by the jury as a body, may always be established, for the purpose of correcting the record, by proceedings taken at a proper time; provided always that this permissible process is to be distinguished from the things prohibited by the rule of (a), above.

3. Self-stultifying testimony. In so far as the rule of 2, c, above, is attempted to be carried out by using a juror's testimony to prove his own misbehavior, this would be forbidden by the principle nemo turpitudinem suam allegans audietur (ante, § 525), if there were any such principle. But that principle of evidence has long ago disappeared from every other part of our law, and it should not survive for the present purpose.

The foregoing principles have application as well to grand jurors as to petit jurors, but naturally with some differences of result. The chief difference is that under the principle of 1, above (privileged communications), the communications of witnesses to the jurors, as well as of the jurors among themselves, are included, and a special development of the principle becomes necessary.

So also the award of arbitrators is governed by the same principles, the chief difference occurring in the application of 2, b, above, because of the arbitrators' combination of the functions of judge and jury.

A. PETIT JURY.

1. Privileged Communications Rule.

§ 2346. Scope of the Principle. The requirements of the general principle of privileged communications (ante, § 2285) are fully satisfied for communications between jurors during retirement. The communications originate in a confidence of secrecy; this confidence is essential to the due attainment of the jury's constitutional purpose; the relation of juror is clearly entitled to the highest consideration and the most careful protection; and the injury from