Constitutional Rights, Legal Defense & Trial Strategy, Rules of Evidence

Marriage grants two evidentiary shields that can keep private conversations and unwanted testimony out of court. Understanding how these rules actually work can spare families the strain and uncertainty of compelled disclosure.

The testimonial privilege

Courts in every state follow the United States Supreme Court’s lead in Trammel v. United States, 445 US 40 (1980). A witness spouse alone decides whether to speak against the defendant spouse. Prosecutors cannot drag that witness to the stand or force an answer. Oregon codifies the principle in ORS 136.655. The privilege lasts only for the life of the marriage and disappears if the couple divorces before trial, but while it exists the decision remains entirely with the witness.

The marital communications privilege

Oregon Evidence Rule 505 blocks the state from introducing confidential statements exchanged during a valid marriage. Either spouse may invoke this privilege, and it survives divorce as well as death. The policy goal is protecting the zone of privacy that makes candid conversation possible. Because both parties own the privilege, one spouse may stop the other from testifying about those private words.

Where the shield fails
• Voluntary waiver
A witness spouse can choose to testify. Once words are spoken the privilege cannot be reclaimed.
After waiver, every disclosed fact is fair game for cross examination because the law favors the search for truth once privilege is relinquished.

• Crimes against the household
Allegations of violence or abuse inside the family cancel both shields. Oregon follows the common law rule that safety overrides marital privacy.
Courts reason that protecting vulnerable partners and children outranks secrecy.

• Joint criminal venture
Communications made to plan or conceal crime lose protection everywhere in the country.
Privilege is designed to defend trust, not conspiracy.

Practical counsel

Clients often ask what to share at home. The safe answer is as little as possible. Silence keeps loved ones clear of subpoenas and the stress of a witness seat. When a spouse presses for details, a simple explanation works: knowing less keeps the household out of jeopardy.

Two additional habits serve defendants well.

• Speak in person, not over text or email
Digital records live forever and risk discovery even if the spouse refuses to testify.

• Contact counsel before any joint decision
A quick legal consult can flag hidden pitfalls, such as discussing the case in front of friends or children who hold no privilege at all.

A closing thought

Silence costs nothing yet can preserve everything. Knowing when to talk and when to stay quiet may be the single most valuable skill a defendant takes into a criminal case.

Shuttle Diplomacy inside an Oregon Settlement Conference 

Most folks watch legal dramas, then show up expecting fireworks. Instead they find the judge sliding between rooms like Henry Kissinger flying city to city during the Yom Kippur cease-fire talks. The media called that routine shuttle diplomacy, and the courtroom version works on the same principle. 

What a settlement conference really is 

An Oregon judicial settlement conference is a confidential meeting handled by a judge who will never try the case. Local rules give that judge full freedom to speak bluntly because no word spoken can be used later in open court. The goal is simple: measure the risk of trial in private, then resolve the case before anyone picks a jury. 

Our confidential memorandum 

Before the conference we slide a memorandum across the digital transom into chambers. Court rules require it, forbid the prosecutor from seeing it, and direct the judge to destroy it once the conference ends. Inside we load every flaw in the state’s case. 

• Chain of custody gaps
  We spell out where the evidence log breaks, so the judge sees the paper trail crumble before trial. 

• Bad science
  If the narcotics chemist used a field test instead of a gas chromatograph we highlight it, attach the relevant DEA protocol, and explain the suppression motion that will follow. 

• Witness contradictions
  When a key eyewitness gave two different sworn statements, we quote both and add the impeachment plan. 

Each bullet is followed by plain text, like this. The judge absorbs the logic point by point and stores it for the private session with the district attorney. 

Turning the judge into the lead juror 

Clients often ask why we do not hammer those flaws directly at the prosecutor. The answer is credibility. “We’re just a bunch of hired guns, we’re hacks.” The state expects sales pitches from us. It does not expect the same words from the bench. When the judge walks into the state’s room and says, “I reviewed their settlement memorandum and you have problems,” the message hits like a freight train. 

Closing argument by proxy 

In a jury trial my closing argument does not aim to convert every soul. My real task is to arm the jurors already convinced by cross examination with ammunition to persuade their peers. They have more credibility with fellow jurors than any lawyer can hope for. Quote: “The best closers deputize believers rather than preach at skeptics.” The settlement judge serves that same deputized role. He carries our points to the only listener who matters, the elected district attorney. 

Practical takeaways for clients 

• Expect blunt candor
  We speak freely in the judge’s room because confidentiality rules cover every word. No one outside hears the strategy. 

• Do not fear tough questions from the bench
  A stern tone with us often previews an even sterner tone with the state across the hall. 

• Success means risk reduced
  A misdemeanor instead of a felony, two years trimmed from a grid sentence, or dismissal of a count are all victories born from shuttle diplomacy. 

Each takeaway is then unpacked in prose to show how the point plays out in real cases and why it matters to sentencing math. 

Why shuttle diplomacy works 

Kissinger’s flights only mattered because each side believed he carried the hard truth of the other side’s position. The settlement judge performs the same service. He shows the state the verdict risk we outlined and reminds us of any blind spots we may have missed. Conversation becomes calculation, and calculation drives agreement. 

Closing thought 

“We do not beg for mercy in settlement; we leverage authority to spotlight risk.” That line sums up the mission. We arm the judge with unfiltered facts, he delivers the reality check, and most cases end without the drama television promised. When the robe carries the message, even the toughest district attorney listens.