The memorandum analyzes whether a conversation between a husband and wife in the presence of their children is considered a privileged spousal communication. It concludes that under Illinois law, as established in People v. Sanders, such a communication is not privileged if the children are old enough to understand the conversation. Here, the children were ages 16 and 10 and therefore old enough, so the conversation would be admissible in the husband's criminal assault trial. The memorandum recommends further investigating whether the children actually heard and understood the conversation at issue.

1. OFFICE MEMORANDUM OF LAW
To: Barbara Johnson, Attorney
From: Raven Kittler, Paralegal
Date: May 12, 2013
Case: State v. Hudson
Office File No.: Cr. 08-143
Docket No.: Cr. 08-657
Re: Privileged spousal communications
Statement of Assignment
You have asked me to prepare a memorandum of law addressing the question of whether the
conversation between Mr. Hudson (our client) and Mrs. Hudson, which took place in the
presence of their children, ages 16 and 10 years old, is a privileged spousal communication
and, therefore, is not admissible in the criminal trial of Mr. Hudson.
Issue
Under the Illinois privileged spousal communication statute, 735 ILCS 5/8-801 (West 1992),
is a spousal conversation privileged and not admissible into evidence if it takes place in the
presence of the spouses’ children, which are 16 and 10 years old?
Brief Answer
No. The communication is not a privileged communication protected by the provisions of the
statute. The state supreme court has ruled that the privilege is destroyed when the conversation
takes place in the presence of children of the spouses who are old enough to understand the
content of the communication.
Statement of Facts
Mr. Hudson is charged with assaulting his neighbor, Mr. Hamilton, with a deadly weapon, a
hammer. Mr. Hamilton claims that Mr. Hudson attacked him and struck him several times with
a hammer. Mr. Hudson claims he did not attack Mr. Hamilton with a hammer; he claims that
Mr. Hamilton attacked him with a brick, and during the struggle, the brick fell and hit Mr.
Hamilton on the head. Mrs. Hudson, currently separated from her husband, has agreed to
testify that before the confrontation Mr. Hudson stated, “Hamilton is out there building that
fence again. I’ll put a stop to this once and for all.” The conversation took place in the

2. presence of the Hudson’s children, Brian, age 16 and Alisha, age 10. There were no witnesses
to the argument. Neither Mrs. Hudson nor the children saw the confrontation.
Analysis
The rule of law governing privileged communications between spouses is 735 ILCS 5/8-801,
which states, “In all actions, husband and wife may testify for or against each other, provided
that neither may testify as to any communication or admission made by either of them to the
other or as to any conversation between them during marriage…” The statute does not include
any sections that address waiver of the privilege. However, there is Illinois case law that
discusses the question of when the privilege is waived.
A state supreme court case that addresses the question of waiver of the privilege when
children are present during the spousal communication is People v. Sanders, 99 I11.2d 262, 457
N.E.2d 1241 (1983). In this case, the trial court admitted into evidence conversations between
the defendant and his spouse. The conversations took place in front of their children which were
ages eight through thirteen years old. The conversations implicated the defendant in a murder.
When addressing the question of whether the communications were privileged, the supreme
court stated that the rule followed in the state is that the presence of children of the spouses
destroys confidentiality unless the children are too young to understand what is being said.
In our case, just as in People v. Sanders, the conversation between the spouses involved
incriminating statements made in the presence of children. In our case, just as in Sanders, the
children were old enough to understand the conversation. If the rule of law in Sanders is
followed by the trial court, the conversation between Mr. Hudson and Mrs. Hudson is not a
privileged communication under the statute and is admissible into evidence in the trial of Mr.
Hudson.
There is no case law in this jurisdiction that establishes an exception to the rule presented
in Sanders. The only possible counterargument is that the children, although present, did not hear
the conversation. The Sanders opinion does not directly state that the children must actually hear
the conversation, but this is implied by the requirement that the children must be old enough to
understand what is being said. See the Recommendations section in regard to taking steps to
determine if the children heard and understood the conversation.
Conclusion
The rule of law governing privileged spousal communications is 7 3 5 ILCS 5/8-801. It provides
that communications between spouses during the marriage are privileged. In People v. Sanders,
the court held that privilege is waived if it takes place in front of children old enough to
understand what is being said. In our case, because the conversation took place in the presence of
children old enough to understand, the privilege does not apply, and the conversation is
admissible into evidence.
Recommendations
1. We should conduct further investigation to determine if the children
heard and understood the conversation.

3. 2. Additional research should be conducted to determine if there are any
cases that address the question of whether, in addition to being present,
the children must actually hear the conversation.