Spousal Immunity: Aaron Hernandez Finally Makes A Smart Move

Former New England Patriots tight end Aaron Hernandez is led into court for his arraignment on first degree murder charges.

Between his full-body tattoos, association with violent gangs, and involvement in what now appears to be a baker’s dozen worth of shootings, it is safe to say that Aaron Hernandez is not the sharpest tool in the box. Yet while a $40 million contract can’t buy much in terms of brain cells, it can certainly purchase a hell of a legal team.

Facing a potential life sentence for the murder of Odin Lloyd, the former New England Patriots tight end hired Michael Fee of Ropes & Gray at a cost of more than most of us make per decade.

Lost amidst the media frenzy of Hernandez’s arrest and bail denial is a brilliant evidentiary move that Fee is orchestrating — a prison marriage. Prior to his arrest, Hernandez was engaged to Shayanna Jenkins, who is also the mother of his 7-month-old daughter. In theory, if Hernandez can marry Jenkins then she would not have to testify at his murder trial. Some media outlets have wrongfully reported that if Hernandez and Jenkins wed then he could prevent her from testifying.

Luckily, I’m stuck inside studying for the Pennsylvania and New Jersey bar exams, so let’s peruse the Barbri evidence outline to properly determine exactly what is spousal immunity and the privilege of confidential martial communications and how they could impact the case against Hernandez.

First, at the federal level and the majority of states, when the privilege of spousal immunity is invoked, a married person whose spouse is a defendant in a criminal case may not be called as a witness by the prosecution and may not be compelled to testify against his or her spouse in any criminal proceeding. There must be a valid, legal marriage for the privilege to apply. The privilege lasts only during the marriage, but covers information learned before and during the marriage. In this instance, if they were to get married, it would be up to Jenkins to decide if she wants to testify as Hernandez could not prevent her from doing so.

Shayanna Jenkins (right) could avoid the witness stand if she can obtain a legal marriage to Aaron Hernandez.

In Massachusetts, the law states, “neither husband nor wife shall be compelled to testify in the trial of an indictment, complaint or other criminal proceeding against the other.” Mass. Gen. Laws Ann. ch. 233, § 20.

A key difference in Massachusetts is that the statutory privilege of a spouse not to testify “in the trial of an indictment, complaint or other criminal proceeding against the other” spouse does not apply to grand jury proceedings. (849 N.E.2d 797, 801–803 (2006)). Basically, if a wedding can happen then Jenkins does not have to talk every again if she does not want to.

Conversely, the privilege for confidential marital communications applies in any criminal or civil case. The privilege protects any confidential communications made in reliance upon the intimacy of the marital relationship. Here, both spouses have the privilege not to disclose, and to prevent the other from disclosing, a confidential marital communication. This privilege survives the marriage, but covers only statements made during the marriage. Therefore, if Hernandez and Jenkins marry, then Jenkins can not testify as to anything told to her in confidence (like a guilty phone call from jail) without Hernandez’s approval.

Ultimately, spousal immunity is only vital to obtain if Jenkins actually knows anything relevant to the murder investigation. Regardless, it is a good hail mary for the Roper & Gray team to keep in their back pocket — that is if they can pull it off.

Bristol County Sheriff Thomas Hodgson, said he won’t allow Hernandez to marry his fiancée while he is jailed on his murder charge.

“We’re not going to revamp our entire security system to perform marriages inside our prison. If you want to get married, what you do is, you stay out of jail,” he told the NFL Network on Wednesday in an interview with the “NFL AM” show, adding he’s taken away many privileges from inmates, such as weights, televisions in cells and coffee.

With that said, let the motions filing begin as Hernandez’s legal team figures out a way to get him to the altar before he faces a jury.

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