Many of us in Pennsylvania think that the secrets we share with our spouse are “confidential” and “privileged” from government intrusion. However, in Commonwealth v. Hunter , a Franklin County trial judge recently ruled that prosecutors can now use private text messages between a husband and wife in a criminal case. This is important because “spousal communications” in criminal trials have normally been “privileged” and “confidential” in this country. In this criminal case, however, the Judge said prosecutors could use and publish text messages that the married couple exchanged with each other when they were discussing the husband’s allegedly abused child.
The accused naturally argued to the judge that they had been under the impression that their discussions with each other were obviously confidential and privileged, like discussions with a lawyer, or confession to a priest. They logically argued that since the texts had been between husband and wife; had pertained to “matters in their lives” and were sent and received in confidence; they were obviously “privileged” and “confidential” spousal communications. Not so, said the judge; they were mistaken. The accused had no reasonable expectation of privacy in the texts. Does this decision represent the erosion of fundamental rights that we have taken for granted? Or, is the decision limited to the technological nature of how the “discussions” were shared? The judge’s opinion makes it difficult to say. Hopefully, the decision will be appealed and we will receive some clarity. For the moment, however, when you text, chat, twitter or e-mail your beloved, do so as if the whole world is watching.